# Smt. Sohbatti (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 1435 of 1997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Criminal Appeal No. 1435 of 1997
- **Bench:** Mrs. Sunita Agarwal, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sohbatti-in-jail-v-state-of-u-p-46259
- **Pages:** 21

## Headnote

Criminal Law-Indian Penal Code-1860Section 302/201 - Appeal against conviction.

Circumstantial Evidence :-The last seen
theory comes into play where the time gap
between the point of time when the accused
and the deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes
impossible. (Para-33)

Motive in Circumstantial Evidence -
Motive cannot be ignored in the circumstantial
evidence. In the instant case, the motive
narrated by the prosecution but is not found to
be an existing circumstance from the deposition
of the prosecution witnesses. (Para-33)
The impugned judgment is not sustainable in
the eyes of law and is liable to be set aside.
(Para-40)

Criminal Appeal allowed. (E-2)
List of cases cited:-

## Text

_Characters 0–39,971 of 71,267. This is a partial read: ask again with offset=39971 for what follows._

1956 INDIAN LAW REPORTS ALLAHABAD SERIES
C.J.M. Etawah is directed to take them into
custody in the aforesaid case and send them
to jail to serve out the sentences, awarded
by the trial court and affirmed by us.

89. Office is directed to send a copy
of this order to the court concerned within a
week for compliance. The compliance
report shall be sent by the court concerned
to this court within a further period of
fifteen days.
----------
(2020)03-05ILR A1956
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE DEEPAK VERMA, J.

Criminal Appeal No. 1435 of 1997

Smt. Sohbatti ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri I.K. Chaturvedi, Sri Hanuman Deen
Verma, Sri S.B. Singh, Sri S.K. Pandey

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

Criminal Law-Indian Penal Code-1860Section 302/201 - Appeal against conviction.

Circumstantial Evidence :-The last seen
theory comes into play where the time gap
between the point of time when the accused
and the deceased were last seen alive and when
the deceased is found dead is so small that
possibility of any person other than the accused
being the author of the crime becomes
impossible. (Para-33)

Motive in Circumstantial Evidence -
Motive cannot be ignored in the circumstantial
evidence. In the instant case, the motive
narrated by the prosecution but is not found to
be an existing circumstance from the deposition
of the prosecution witnesses. (Para-33)
The impugned judgment is not sustainable in
the eyes of law and is liable to be set aside.
(Para-40)

Criminal Appeal allowed. (E-2)
List of cases cited:-

1. Bhagat Ram vs. St. Of Pun., AIR 1954 SC 621

2. Bodhraj Alias Bodha and others vs. St. of J &
K, 2002 (8) SCC 45

3. Babu vs. St. of Kerala, 2010 (9) SCC 189

4. Ramreddy Rajesh Khanna Reddy and another
vs. St. of A.P., 2006 (10) SCC 172

5. Rameshbhai Chandubhai Rathod vs. St. of
Guj., 2009 (5) SCC 740

6. St. of U.P. vs. Kishanpal and others, 2008
(16) SCC 73

7. Pannayar vs. St. of T.N. by Inspector of
Police, 2009 (9) SCC 152

8. Babu vs. St. of Kerala, 2010 (9) SCC 189

9. Sahadevan and another vs. St. of T.N., 2012
(6) SCC 403

10. Balwinder Singh vs. St. of Punjab, 1995
Supp (4) SCC 259

11. Kavita vs. St. of T.N., 1998 (6) SCC 108

12. St. of Rajasthan vs. Raja Ram, 2003 (8) SCC
180

13. Aloke Nath Dutta & Ors vs. St. of W.B., 2007
(12) SCC 230

14. Shankarlal Gyarasilal Dixit vs. St. Of Maha.,
1981 (2) SCC 35

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.
&
Hon'ble Deepak Verma, J.)
3-5 All. Smt. Sohbatti Vs. State of U.P.
1957

1. Heard Sri Surendra Bahadur Singh
learned Advocate
on
behalf
of
the
appellant, Sri L.D. Rajbhar and Sri Prem
Shankar
Mishra
learned
Additional
Government Advocates on behalf of the
State and perused the record.

2. The present appeal is directed
against the judgment and order dated
28.7.1997 in Sessions Trial No. 185 of
1996 (State vs. Smt. Sohbatti Devi), arising
out of Case Crime No. 07 of 1996, under
Section 302/201 I.P.C., Police Station-
Bakhira, District- Basti by which the
appellant Smt. Sohbatti wife of Sri Ram
Nath, resident of Village Bardad, Police
Station Bakhira, District Basti has been
convicted for offence under Section 302
I.P.C. and sentenced for life imprisonment
and for the offence under Section 201 I.P.C.
convicted and sentenced for five years.
Both the sentences are directed to run
concurrently.

The events in the prosecution
story go on as under:-

3. A missing report dated 13.1.1996
was lodged by Smt. Kumari Devi wife of
Phoolbadan, resident of Village Bardad,
Police Station Bakhira, District Basti to
state that her son Rajendra aged about 5
years had gone missing around 6:00 PM on
12.1.1996. She alongwith other villagers
had searched for the child but they could
not find him.

4. A first information report dated
16.1.1996 scribed by Rajdev Yadav son of
Ramkewal Yadav was lodged by Smt.
Kumari Devi wife of Phoolbadan to state
that his missing son was found dead and his
dead body was recovered after much efforts
from a pond behind her house at around
10:00 AM on 16.1.1996 itself. The body
was recovered with the help of villagers
named as Janardan son of Ram Bachan,
Ram Chandra son of Shiv Baran, Pradhan
Sundar @ Chunnur son of Ghisai and Uppradhan Jayram son of Manohar. She raised
suspicion that her sister-in-law Sohbatti
wife of Ram Nath had murdered her son
Rajendra and concealed his dead body in
the pond. The motive for murder as
narrated therein was to grab all landed
property of the first informant. It is stated
that
whenever
there
was
altercation
between the first informant and her sisterin-law, the accused used to threaten that she
would kill both the first informant and her
son. The report further states that body of
the child (her son) after recovery had been
kept besides the pond. The said written
report was exhibited as Exhibit 'Ka-1'. The
first information report was registered as
Chik report (Exhibit Ka-2) at around 02:00
PM on 16.1.1996 under Sections 302/201
IPC. The date and time of the incident as
reported therein is 12.1.1996 around 6:00
PM. The search memo dated 16.1.1996
(Exhibit Ka-14) indicates that search was
conducted for the accused/appellant but no
incriminating article was found nor the
accused/appellant was found. 'Exhibit Ka15' is the memo of receipt of the torch
belonging to the witness Phoolmati who
stated that she had witnessed the accused
with the child (deceased) alive on the day
of missing in the light of the torch. The
postmortem was conducted on 17.1.2996 at
around 3:00 PM. The Doctor had opined
the estimated time of murder about three
days back.

5.

The
findings
on
external
examination of the dead body are:-

Average build body of the child
about five years. Body covered with dry
mud and sand particle. Wrinkles are
1958 INDIAN LAW REPORTS ALLAHABAD SERIES
present on skin at both palm and sole &
foot, face cyanosed, Eyes congested,
Bloody froth coming from both the nostrils,
mud & sand under nails of hand and foot
absent rigor mortis passed off from all the
four limbs.

Ante mortem injuries:-

(1) Abrasion 1x0.5 cm on bridge
of nose 0.5 cm below root of nose,
horizontal;

(2) Abrasion 1x0.5 cm on bridge
of nose obliquely present 1.0 cm below
injury no. 1;

(3) Multiple abrasion in area of
6x1.5 cm on left side of face 2c.m. front of
left ear tragus.

(4) Abrasion 2.5 cmx0.5cm on
lower lip both sides;

(5) abraded contusion 5x2.5 cm
in front of neck 1.5 cm above sternal notch
in mid & both sides.

The conditions of internal organs
indicated in the report shows the cause of
death due to asphyxia as a result of
strangulation. The postmortem examination
of the deceased child, thus, ruled out
possibility of death due to drowning. The
homicidal death of the child is proved from
the report.

6. As the events go on, the inquest was
conducted on 16.1.1996, started around 15:30
hours and ended at 17:10 hours. The clothes
found on the dead body were a half shirt, one
kurta over it and girdle of black thread (करिनी)
tied in the waist.

The police had submitted charge
sheet against the appellant after completion of
the investigation. The charges framed against
the accused were of committing murder and
concealing the dead body. The accused denied
both the charges and demanded trial. The
accused was committed to the Sessions Court
for trial.

7. The prosecution had examined 13
witnesses. Amongst them, PW-1, PW-2, PW-3,
PW-6, PW-7, PW-9 and PW-10 are witnesses
of facts.

8. PW-4 is the constable Prem Shankar
Tripathi who was posted in Thana Bakhira at
that point of time. He proved that the police
reached the spot of the incident on 16.1.1996 at
around 4:15 PM and when they reached, dead
body was outside the pond (गड़ही). After
inquest was completed at around 4:00 PM, he
moved from the place of incident with the dead
body to the Mortuary. The entry in GD of police
lines was made on 16.1.1996 at 11:00 PM and
body was handed over to the Doctor in the
District Hospital on 17.1.1996 at around 10:00
AM. The postmortem was conducted at around
3:30 PM and till that time, the dead body was
intact in the sealed cover and no one had
touched the same.

9. PW-5 is the Constable/Moharrir
working in the Police Station Bakhira who
prepared Chik report and GD entry Rapat
No. 19 (time around 14:00 hours) on
16.1.1996
which
were
exhibited
as
'Exhibits Ka-2 and Ka-3'. He states that
special report of the case was sent through
Rapat No. 20 time at 14:30 hours on
16.1.1996 by another Constable. With
regard
to
the
missing
report
dated
13.1.1996, this witness states that the said
report was given by the first informant in
writing at the Police Station and was
entered in GD Rapat No. 35 at 19:05 hours.
He, however, did not prove the GD entry of
the said report as it was not brought by
him. He states that after the written report
of missing dated 13.1.1996, no one was
arrested by the police though the Station
House Officer visited the place of incident.
At the time of lodging of the first
information report dated 16.1.1996, Sri
Manju Singh Yadav, the S.I. was present.
3-5 All. Smt. Sohbatti Vs. State of U.P.
1959
He moved to the place of occurrence soon
after the report was entered in the G.D. He
denied any suggestion of report being a
result of deliberation by the police. S.I.
Manju Singh Yadav, the Investigating
Officer who had been examined as PW-11.
PW-12 is the Investigating Officer who on
transfer of PW-11 had completed the
investigation and submitted the charge
sheet in the Court.

10. PW-13 is the Doctor who
conducted postmortem of the dead body.
The Doctor in his deposition proved that he
received the dead body on 17.1.1996 and
conducted postmortem. He proved the
injuries indicated in the report. He states
that the dead body was brought to the
hospital by two constables. As per his
findings, during strangulation, both the
neck and nose of the child were pressed. To
explain the condition of the dead body
found near the pond, he stated that no water
was found in the lungs that means the child
was first murdered and then thrown in the
water. There were no traces of sand and
mud in his nails, which means that the child
was not thrown alive in the water or it was
not a case of death due to drowning.
Estimated time of occurrence as per his
report
was
around
mid-night
of
13/14.1.1996. He denied suggestion of
death being caused in the night of
12.1.1996 or that it was a result of accident
by drowning. He further clarified that
semisolid food was present in the stomach
which could be identified by him as Rice,
Dal, Potato, Gobhi. As the food was
undigested, in all probability, death had
been caused within 2 to 21⁄2 hours of the
deceased child consuming food. On a
suggesting given by the defence, only this
was stated that there was possibility of
occurrence of injury no. 3 and injury no. 4
had the child fallen on a rough ground.
However, injury no. 4 could only occur
because of pressing of mouth. Injury no. 5
came due to strangulation either by hand or
a round stick. The Doctor states very
categorically that had the child fallen in the
pond (गड़ही), the injuries nos. 3, 4 and 5
could not have come.

From
the
statement
of
the
postmortem Doctor, it is, thus, proved that
the death of the child was caused due to
strangulation
and
not
by
drowning.
Someone had killed him and then threw his
body in the pond. Amongst the formal
witnesses, only PW-11 remains who is an
important witness, his deposition would be
seen at the appropriate stage.

11. We would next proceed to
appreciate the evidence of witnesses of
facts:-

PW-2 Smt. Kumari Devi is the
first informant, the mother of the deceased
child
and
sister-in-law
of
the
accused/appellant Smt. Sohbatti. In her
deposition, she states that her husband
Phoolbadan was three brothers. One of his
brother was residing in Ahemadabad.
Phoolbadan had gone missing 5 to 6 years
ago and his whereabouts were not known.
Ram Nath, husband of Sohbatti (the
appellant) is her brother-in-law. She had
two children, one son Rajendra who was
aged about five years and a daughter of
about 10 to 11 years old. After her husband
had gone missing, she started living in her
Maika (parental home). Her agricultural
land was being managed by Smt. Sohbatti.
One month before the incident, she came
back to the village and asked her land back
from Sohbatti. She was then threatened by
Sohbatti that his son would be killed. Her
son Rajendra had gone missing at around
6:00 PM on 12.1.1996. When all efforts to
fetch him went in vain, she reported the
1960 INDIAN LAW REPORTS ALLAHABAD SERIES
matter on the next day, i.e. on 13.1.1996 in
the Police Station. On 16.1.1996, during
day time, the dead body of her son was
recovered from the pond behind her house
in the presence of Sundar Pradhan, Jayram,
Janardan and Ramchandra. After the dead
body was taken out from the pond, the first
information report scribed by Rajdev was
lodged in the Police Station. She proved the
written
report
bearing
her
thumb
impression in the writing of Rajdev
(Exhibited as Exhibit 'Ka-1'). The clothes
of deceased were identified by her and
exhibited. She stated that the appellant had
murdered her son to grab her landed
property. In the cross-examination, PW-2
states that after her husband had gone
missing, she stayed in her 'Maika' for about
5-6 years. Thereafter, she returned to the
village (her matrimonial home) few months
back. Her daughter stayed back with her
maternal grand-parents. In the Village, she
started living in the house of Ram Nath
husband of Sohbatti. She did not have
cordial relations with Sohbatti and earlier
had to go back to her 'Maika' because
Sohbatti was fighting with her. She did not
have cordial relationship with Ram Nath
either. On a suggestion given by the
defence that she was residing with Ram
Nath as husband and wife, she states that
after Sohbatti was lodged in jail, she started
cooking food for him and looks after his
children as no one else was there to do that.
She then admitted that for about two to
three months, she was residing with Ram
Nath as husband and wife but then stated
that since Ram Nath did not want to leave
his wife, she would not reside with him
anymore.

Then she goes on to say that 2-3
days before her son had gone missing, she
had an altercation with Sohbatti. It was not
because of Ram Nath but because of land.
At that time, Ram Nath was present and he
also supported Sohbatti. On the fateful day,
when the child had gone missing, Ram
Nath was not at home and only Sohbatti
was
present.
Ram
Nath
had
gone
elsewhere.

12. About the scribe of the written
report Rajdev Yadav son of Ramkewal
Yadav, she states that she did not know him
earlier and she could know him only while
searching for her missing child. She went
to search her son with the villagers who
were collected at a common place namely
Chamanganj Chauraha. All of them came to
her house and she told everyone loudly that
Sohbatti had killed her son. They then took
her to the Police Station to lodge the
missing report. She states that she told the
police that Sohbatti had kidnapped her
child but the police did not record this fact
in the missing report. The police did not
reach the Village on the next day of the
missing report. After the dead body was
found, she went to the Police Station,
lodged the report written by Rajdev with
her
thumb
impression;
the
police,
thereafter, came to the Village with them.
She then states that after her child had gone
missing and before the dead body could be
found, Smt. Phoolmati wife of Ram Saware
and Smt. Gujrati Devi wife of Kamal Lohar
though met her in the night and told that
they heard the cries of her son shouting
"mai mai", but they did not tell her that
Sobhatti had killed the child.

13. She then states that Rajdev PW-3
told her that Sohbatti confessed her guilt
and that from the next day of the incident
itself, Sohbatti was pleading everyone in
the village with whom she had good
relations to save her. PW-2 denied having
knowledge of whether Sohbatti was at
home or not when the dead body was
recovered from the pond. She then states
3-5 All. Smt. Sohbatti Vs. State of U.P.
1961
that the police took Smt. Sohbatti to the
Police Station from the pond itself where
the dead body was recovered. Ram Saware
was also taken to the Police Station for
interrogation.

14. PW-3 Rajdev is the scribe of the
first information report. He states that after
four days of the child gone missing, the
dead body was found in the pond behind
the house of the first informant and the
appellant. Pradhan and Up-pradhan and
other villagers were present when the dead
body was taken out from the pond at
around 11:00 AM. The report of the
incident was written by him on the
dictation of Kumari (PW-2). He further
states itself that one day after the recovery
of the dead body, at around 10:00 AM,
Sohbatti (the appellant) met him at
Chamanganj Bazar and confessed that she
had killed the child and pleaded him to
save her.

This witness states that his house
was at a distance of half kms. from the
house of the first informant (PW-2) in
another purva. He knew both Kumari (PW2) and Sohbatti (the appellant) prior to the
incident. During altercation between them
two-three times prior to the incident he
went to pacify. He then said that these
ladies must have fought two-three times in
one year, last being about 2-4 months back.
Kumari, Sohbatti and wife of Shivpujan,
another brother (three ladies of the house)
were not going out to work but they used to
remain in their houses.

He denied having knowledge that
Kumari was living with Ram Nath. But
says that Kumari was living in the village
around one year prior to the incident. Ram
Nath, husband of Sohbatti was a labour and
worked outside the village. On the date of
incident, Ram Nath was not in the village
and had gone to visit some relative one or
two days prior to the incident.

15. He further states that after the
child had gone missing, for about threefour days, he continuously went to the
house of Kumari. On the next day of
missing, PW-2 Kumari came to his house at
around 7-8 PM to inform that her son was
missing and also told him that Sohbatti was
behind all that, but no report was written by
him about missing of the child. He did not
go to the Police Station to lodge the
missing report. Rather on the next day of
missing, he went to the house of Kumari,
stayed there for about half hour and then
went back to his house around 10:00 PM.
He refused having any knowledge of the
missing report lodged by Kumari (PW-2).
He states that he did not have any
information of police reaching the spot
after the missing report was lodged.

16. He further states that on the next
day of missing when he went to the house
of Kumari Devi, Sohbatti and Phoolmati
met him but he did not meet Gujrati. He
made enquiry from them about the missing
child. Both of them expressed ignorance.
Sohbatti met him consecutively on the
second, third, fourth and fifth day after
missing of the child. He then states that
after the dead body was found, Sohbatti
confessed her guilt and and pleaded him to
save her. The witness explains that he used
to mediate on small issues between
villagers; and that was why Sohbatti
pleaded him to help her. But Sohbatti did
not visit his house. He did not meet Ram
Nath during the days when the child had
gone missing and the dead body was found.
He met Sohbatti at her home after the dead
body was found. The day when dead body
was recovered, Sohbatti was at her home.
On the second day, Sohbatti met him near
1962 INDIAN LAW REPORTS ALLAHABAD SERIES
the Nandaur Marg Chauraha, around 1 km.
away from her house.

17. He then states that when he
reached the house of Kumari at around 910 AM, body was still in the water and was
being taken out. They proceeded to the
Police Station when the dead body was still
seen in the pond. Police came in the
afternoon and then body was taken out
from the water by two young men. The
report was written by him on the dictates of
Kumari before the police came and body
was seen. He states that Daroga Ji (the
SHO) interrogated Sohbatti but deny
having any knowledge that she was taken
to the Police Station. Thereafter, the SHO
called him, Pradhan, and other respectable
persons of the Village to the Police Station.
He was not interrogated by the police on
the day of recovery of the dead body rather
they were called to the Police Station twothree days, thereafter. When police made
inquiries, he told about the confession by
Sohbatti. He then states that the news of the
incident had travelled in the entire Block
and everyone knew that Sohbatti had
murdered the child.

He
denied
having
personal
acquaintance with the SHO Manju Singh
Yadav. He states that all the BDC members
and elected Gram Pradhan were called to
the Police Station by the SHO.

18. PW-1 was the Gram Pradhan who
states that the dead body of child Rajendra
was found behind the house of the
appellant and the first informant after four
days when he had gone missing. They
could not find the child despite best efforts.
Kumari, the first informant (PW-2) was
living in her 'Maika' after her husband had
gone missing and Sohbatti was ploughing
her fields. One month prior to the incident,
Kumari came back to the village and asked
for her land. Altercation ensued on refusal
by Sohbatti as she wanted to grab the land.
On 16.1.1996, Janardan came to him in the
morning and told that Sohbatti sent him to
convey the message that ^^fd iz/kku ls dgks dh
yk'k [kkstok;s yk'k rkykc esa feysxh^^. Janardan
and Ram Nath had entered the pond
(Pokhar) and then the dead body was
recovered from the North-East corner of
the pond, behind the house of the first
informant and the appellant. After the dead
body was taken out, the report was lodged
by Kumari, police came and inquest was
done. PW-1 is the inquest witness. He goes
on to say that when he got message of
Sohbatti through Janardan, he went to the
house of Sohbatti, she also told him to look
for the dead body in the pond behind her
house.

19. In cross-examination, this witness
states that after Phoolbadan (husband of
Kumari), his wife and children had left the
village, his landed property was shared by
both his brothers Shivpujan and Ram Nath.
Ram Nath and Shivpujan both had divided
the share of the Phoolbadan amongst them
and were ploughing his field as Kumari
went to her 'Maika'. One month prior to the
incident, Kumari came back to the village
and earlier also she used to come to the
village. When he was elected as Gram
Pradhan, share of Phoolbadan was returned
to Kumari by his intervention. Shivpujan
gave it willingly. He categorically states
that four months prior to the incident, share
of land of Phoolbadan was handed over to
Kumari.

He denied the suggestion of any
enmity of the first informant or her husband
Phoolbadan with any of the villagers. He
states that on the day when the child gone
missing, he was in the Police Station for his
3-5 All. Smt. Sohbatti Vs. State of U.P.
1963
own work. He went to the house of Kumari
hearing noise in the night at around 08:00
PM. He got to know there that Ram Nath
went to his in-laws house around 4:00 PM.
Sohbatti was in the village but he did not
meet her. Kumari was crying, house of
Sohbatti was open and her one son was
playing near the door, another younger
child of Sohbatti was sleeping on the Cot in
'Osara'. PW-1 states that he went to the
Police Station on the next day alongwith
other villagers to lodge the missing report.

20. He then states that on the same
day, on his instructions a net was thrown in
the pond at around 9:00 PM. Kumari told
him then also that Sohbatti was the
perpetrator of the crime. They all, however,
were busy in fetching the missing child but
no one looked for him in the house,
Bhusoula, Dhari or Charani of Sohbatti. No
inquiry was made from the neighbours
Phoolmati and Gujrati. Wife of Shivpujan
was in the post delivery stage and hence
she was not questioned. No one was there
in the house of Shivpujan apart from his
wife.

On 13.1.1996, a report was
scribed by Rajdev Yadav at the police
station when and he alongwith Kumari and
Rajdev went to the Police Station to lodge
the missing report. But, the said report was
not taken by the S.H.O. rather he told by
PW-11 to make good efforts to search the
child. He states that Kumari then told the
S.H.O. that Sohbatti had done all that but
the police did not come to the village.

21. He then says that after coming
back, they searched for the dead body in
the pond. 20 persons had entered in the
pond but dead body could not be found. He
also interrogated Sohbatti but she denied.
Sohbatti did not help them in finding the
child, she rather tried to flee from the
village but was caught thrice. After she was
threatened and scolded, she sent the above
said message through Janardan to PW-1.
He denied use of any physical force or
doing any 'maar-peet' with Sohbatti but told
that Sohbatti was threatened that she would
be lodged in jail. On the third day, after
receipt of message of Sohbatti, the dead
body was recovered.

PW-1 then deposed that Sohbatti
also told him that Ramsaware was roaming
near the pond during the night and when
she looked at him, he hid inside his house.
Sohbatti told him that had efforts be made
that day, body would be found in the pond.
PW-1 has denied any suggestion of enmity
between Kumari and Ramsaware, but
admits that on 14.1.1996 police had taken
both Ramasware and Sohbatti to the Police
Station for interrogation. He states that
statement of Phoolmati and Gujarati were
recorded in the village in front of many
villagers. He denied that he went to the
Police Station, after the dead body was
taken by the police. He denied that they
were called by the SHO to the Police
Station after recovery of the dead body.

22. There are two more witnesses of
fact, PW-9 Ram Briksha and PW-10
Jayram, both residents of the same village.
PW-9 Ram Briksha denied that he had seen
Sohbatti (the appellant) with the child on
16.1.1996 at around 9:00 AM near her
house or she made any confession to him.

P.W.10
Jayram
states
that
Sohbatti did not meet him in the morning
nor she gave any message to him to search
the dead body behind her house. Both PW9 and PW-10 were cross-examined by the
A.D.G.C., but nothing could be elicited
from their statements.
1964 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Two more witnesses to assert the
theory of last seen, PW-6 and PW-7, have
been examined. Both had been declared
hostile. PW-6 Phoolmati states that she did
not witness Sohbatti strangulating the child
in the torch light with Gujrati (PW-7). She
only heard the cries of the child. In the
cross-examination by A.D.G.C., she states
that she did not tell the police that she last
witnessed the accused with the child alive
and how it was written in her statement was
not known to her.

PW-7 Smt. Gujrati also states that
she had no knowledge about the incident.
She did not witness Sohbatti strangulating
the child in the torch light.

Thus, the witnesses of last seen
PW-6 and 7 and two more witnesses PW-9
and PW-10 of extra judicial confession did
not support the prosecution case.

24. Only three prosecution witnesses
of the fact, thus, remained who are PW-1
(the Gram Pradhan), PW-2 (the first
informant) and PW-3 (the scribe of the first
information report). Relevant part of their
statements in the examination-in-chief and
in cross-examination have been extracted
above in detail to assess their testimony.
The deposition of PW-11, the Investigating
Officer is also to be appreciated at this
stage.

25. PW-11, S.I. Manju Singh Yadav
stated that Chik FIR (Exhibit Ka-2) was
signed by him as he was present in the
Police Station on 16.1.1996 at around
14:00 hours. The missing report dated
13.1.1996 given by Kumari Devi was
endorsed with her thumb impression and
proved as 'Exhibit Ka-4'. The entry of the
said report had been made in the General
Diary Rapat No. 35 dated 13.1.1996 in the
handwriting and signature of Kanhaiya
Prasad which PW-11 had identified. He
states that after missing report was lodged,
on 14.1.1996, he went to the Village in
search of the missing child. The Entry in
G.D. Rapat No. 10, Time 07:45 dated
14.1.1996 was stated to be proof of the said
fact.

26. He further stated in the
examination-in-chief that the investigation
was commenced by him after registration
of the first information report. He went to
the place of incident after recording
statement of Kumari Devi in the Police
Station itself. Dead Body was taken in
police custody and inquest was prepared in
the handwriting of S.I. Ravindra Chandra
Bhadauriya on his dictation. All the reports
were carrying his signature and proved as
'Exhibit Ka-6 to Ka-12'. After completion
of formalities, body was sent for the
postmortem. The site map of the place of
incident was drawn by him as Exhibit 'Ka13'. Thereafter, he recorded statements of
Sundar @ Chunnur (PW-1), Janardan and
Jayram. The search of the accused was
conducted and the search memo was
prepared in his own handwriting bearing
his signature exhibited as Exhibit 'Ka-14'.

27. He further states that on
17.1.1996, statements of Phoolmati (PW-6)
and Gujrati (PW-7), Rajdev Yadav (PW-3),
Ram Briksha Chaudhary (PW-9) were
recorded and torch of Phoolmati was
checked and memo 'Ka-15' was prepared to
note that it was found in working condition.
The statements of all four witnesses have
been filed in the court in his own
handwriting and signature entered in the
CD, as 'Exhibits 'Ka-16' to 'Ka-18'. On
20.1.1996, Smt. Sohbatti was arrested and
her statement was recorded. The said fact
had been noted in GD Rapat No. 24 dated
20.1.1996 at 18:15 hours in the handwriting
3-5 All. Smt. Sohbatti Vs. State of U.P.
1965
of Head Constable Ram Badai and signed
by him, which was exhibited as Exhibit
'Ka-20'. After arrest of the accused, another
site plan was prepared on the pointing of
the accused which bears his signature. He
proves the same to be correct according to
the spot, which is exhibited as Exhibit Ka21.

PW-11 denied suggestion of any
acquaintance with Gram Pradhan (PW-1) or
Rajdev (PW-3).

28. He further states in the crossexamination that he did not know as to why
during lodging of the missing report, name
of Smt. Sohbatti was not disclosed by
Kumari Devi. The special report of missing
was also sent on 13.1.1996 itself as entered
in GD No. 35, Time 17:05 hours. He goes
on to say that thereafter, he went to the
village in the night on 13.1.1996, but as no
offence was made out from the missing
report, no first information report was
registered. On 13.1.1996, when he reached
the village around 11:00 PM, he made
search for the child but did not meet
anyone in the neighbourhood. The Gram
Pradhan, Jayram and others were not there
and there was no reason for him to look for
the dead body in the pond. Thereafter, he
went to other places under his jurisdiction
and returned to the Police Station only on
14.1.1996. He further states that he might
have told the Gram Pradhan to search for
the child as he told that to everyone.
Intimation to other police stations were also
given on remote sets; requisition was also
sent for "Kashti Talash" (search through
boat) which was issued.

29. He further states that on 16.1.1996,
Kumari Devi came to the Police Station at
around 14:00 hours (2:00 PM) alongwith
Rajdev Yadav and Sundar @ Chunnur and her
statement was recorded in the Police Station but
statements of Sundar @ Chunnur and Jayram
were not recorded in the Police Station. Kumari
Devi intimated him that she came back to the
village around six months prior to the incident
alongwith his five year old child. The motive
for murder, according to her, was to grab her
land. After registration of the first information
report and recording of statement of the first
informant (PW-2), he proceeded to the place of
incident and reached at the place at around 3:15
PM. When he reached, he found the dead body
besides the pond as it was already taken out
from the water. The accused did not meet him
nor she was present in her house. He searched
for the accused and then prepared the search
memo. Gujrati and Phoolmati were not
interrogated. Janardhan and Ramchandra were
interrogated. The statement of Sundar Pradhan
was taken but he did not disclose the name of
Ramsaware being one of the suspects. PW-11
completely denied arrest of Ramsaware for
interrogation. He did not meet husband of
accused Smt. Sohbatti either prior to or after the
incident.
He
also
did
not
meet
the
accused/appellant between the date of missing
of the child till recovery of his dead body. The
appellant was arrested only on 20.1.1996 and
then for the first time, he met her.

PW-11 categorically denied that
he took the accused and Ramsaware both to
the Police Station on 16.1.1996 for
interrogation and denied that they were
detained in the Police Station uptil
20.1.1996 and thereafter, Ramsaware was
released and Smt. Sohbatti was illegally
challaned. He denied that statement of
Gujrati, Phoolmati was wrongly recorded
by him at the instance of Rajdev in order to
save Ramsaware or statement of Sohbatti
was recorded in order to give false colour
to the case.

30. At this stage, the evidence of
Prem Shankar Tripathi PW-4 is also to be
1966 INDIAN LAW REPORTS ALLAHABAD SERIES
appreciated. He states that he took the dead
body
to
the
District
Hospital
for
postmortem from the place of incident. In
cross-examination, he states that he was
present in the Police Station Bakhira on
16.1.1996. The first informant had reached
the Police Station at around 12:00 noon. He
did not remember whether S.H.O. was
present in the Police Station at that point of
time. He, however, states that he alongwith
S.I. Ravindra Chandra Bhadauriya and
S.H.O. left the Police Station at 3:30 Hours
to go to the place of incident. They reached
there within one and a half hour. The body
was outside the pond and when for the first
time he looked at the body, it was being
sealed as all the paper work was done by
Constable Bhadauriya. The dead body was,
thereafter, brought to the Police Station and
was taken to the Mortuary by him. It was
handed over to the Doctor on 17.1.1996.
He denied that the paper work was done by
the Investigating Officer while sitting in the
Police Station and not at the place of crime.

31. The accused/appellant Smt.
Sohbatti in her statement under Section 313
Cr.P.C denied that Kumari was residing in
her 'Maika' after her husband had gone
missing. She also denied that there was any
dispute between them regarding share of
Kumari in the landed property rather she
stated that Kumari was living in the village
and managing her own property. She
denied any information of lodging of the
missing report on 13.1.1996. She, however,
admits that the dead body of child Rajendra
was found from the 'Garhi' at the back side
of their house after seven days of missing
at around 10:00 AM. She denied herself
keeping the dead body concealed for those
days. She also specifically denied the
versions of witnesses Phoolmati, Jayram,
Gujrati, Ram Briksha recorded under
Section 161 Cr.P.C. She denied G.D. entry
no. 20 regarding her arrest and stated that it
was a forged paper. Her answer to question
no. '16' is relevant to be noted hereunder:-

"iz'u&16%& D;k vkidks vkSj dqN dguk
gSA

mRrj& njksxk th xkao ij vk;s xMgs ls
yk'k fudyok;s o mlh le; mls o esjs xkao ds jke
lokjs dks Fkkus ij idM+dj ys x;sA eq>s 4&5 fnu
rd Fkkus esa jksds j[ksA rFkk esjk xyr C;ku ntZ dj
ds jke lokjs dks NksM fn;k rFkk esjk pkykuu dj
fn;kA eS osdlwj gw¡A esjs nks NksVs cPps gSA

c;ku lqudj rlnhd fd;k"

32. It can, thus, be seen that the
accused/appellant categorically stated that
she and Ramsaware both were detained in
the Police Station for 4 to 5 days. She then
states that the police had falsely implicated
her and she is innocent. She produced
defence witnesses DW-1 and DW-2. DW-1
Gorakhnath is a police officer who brought
both GD dated 13.1.1996 and 16.1.1996 of
the Police Station Bakhira. In GD entry
dated 13.1.1996 at Rapat No. 35, Time
19:05 hours, though there was an entry of
the missing report of Kumari Devi but there
was no entry of movement of S.I. Manju
Singh Yadav for the village-in-question,
whereas, the entry of his movement dated
13.1.1996 at Rapat No. 41, Time 21:45
hours was for "Dabish Abhiyukt" but the
name of Village had not been mentioned
there. He was not cross-examined by the
prosecution.

DW-2 S.C. Ehsaan Ullah, C.O.
Peshi Khalilabad states that he was posted
as C.O. Peshi, Khalilabad and proved the
photo copy of Special report of Case Crime
No. 07 of 1996 under Sections 302/201 IPC
as Exhibit 'Kha-1'.

33. Having a threadbare discussion of
the statements of the prosecution witnesses
3-5 All. Smt. Sohbatti Vs. State of U.P.
1967
and defence of the appellant in her
statement under Section 313 Cr.P.C. as well
as the evidence of defence witnesses, the
circumstances of the case as culled out are
under:-

(i) There is no evidence of last
seen. Both the witnesses of last seen
produced by the prosecution had turned
hostile. From a reading of their entire
testimony, it cannot be ascertained that they
had last seen the accused/appellant with the
deceased child alive.

(ii) No one had seen the deceased
child alive before or near the time of his
missing. The first informant though lodged
a missing report stating that she did not see
her child since around 6:00 PM on
12.1.1996 but there is complete silence in
her statement as to where and when was
she last with her child on 12.1.1996. She
did not name the appellant in the missing
report being even a suspect. The first
informant and the appellant being members
of one family were living in adjacent
houses. Semisolid food was found in the
stomach of the deceased child and as per
the
description
in
the
postmortem
examination, the food inside the stomach
could be identified being full meal
comprising of Dal, Rice and vegetables. As
per the opinion of the Doctor based on the
condition of food in the stomach, the time
gap between taking of food and death of
child could be two to three hours. There is
nothing in the statement of the first
informant who is mother of the child as to
when she had last fed her child or someone
else in the house had given him food on the
fateful day, i.e. 12.1.1996.

(iii) The appellant stayed in her
house for all those seven days till she was
arrested by the police after the dead body
was found. She was neither the suspect nor
was interrogated at any point of time by the
police prior to 16.1.1996, before the dead
body of the child was found in the pond.

(iv)
Only
circumstance
put
forward by the prosecution to suspect the
appellant is that she used to quarrel with
the first informant over a piece of land
belonging to the husband of the first
informant. This is stated to be the motive to
commit the crime. If we examine the
alleged
motive
in
the
facts
and
circumstances placed before us, we find
that the first informant though states that
the accused appellant was ploughing her
field but nothing more has been brought on
record. PW-1 who was Gram Pradhan, on
the other hand, stated that the dispute
pertaining to the disputed land was settled
with his intervention and the piece of land
was already handed over to the first
informant. The motive to commit the crime,
therefore, did not appear to be present at
the relevant point of time.