# State of U.P v. Rahul Singh @ Govind Singh

- **Citation:** (2022) 3 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-07
- **Case number:** Capital Sentence (Reference) No. 2 of 2017
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-rahul-singh-govind-singh-48275
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860 - Sections 302/34, 394,
411,
120-B
-
challenge
toconviction/death-penalty-murder-no
motive-no previous enmity-weak direct
evidence-deceased died of asphyxia as a
result
of
ante-mortem
stangulationstatement of PW-1 the only eye-witness is
not worthy of credence-her statemetns
are contradictory what have been written
in FIR and what have been stated in the
court-the source of light has not been
shown in the site plan-in the darkness of
night, it is not possible to witness the
incident which is being caused in a
orchard-PW-1
stated
accused
looted
jewellery and mobile but not mentioned in
FIR-Similarly, in her examination -in -
chief, she stated that the accused were
armed with small guns but nothing is
there in the FIR-She stated that some
village-people
saw
the
incident,
at
another place she denies the same-Thus,
the story of prosecution is not worthy of
credence, to prove the charge levelled
against the convict beyond reasonable
doubt-Thus the appellant is entitled for
acquittal.(Para 1 to 30)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES
month after normal functioning of the
courts are restored.

2. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

3. The computer generated copy
of such order shall be self attested by the
counsel of the party concerned.

4.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of
High Court Allahabad and shall make a
declaration
of
such
verification
in
writing.

24. However, it is made clear that any
wilful violation of above conditions by the
applicant, shall have serious repercussion
on his/her bail so granted by this Court and
the trial court is at liberty to cancel the bail,
after recording the reasons for doing so, in
the given case of any of the condition
mentioned above.
----------
(2022)03ILR A98
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.03.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Capital Sentence (Reference) No. 2 of 2017
connected with
Criminal Appeal No. 376 of 2022

State of U.P. ...Appellant
Versus
Rahul Singh @ Govind Singh ...Respondent

Counsel for the Appellant:
Sri Jyotindra Mishra, Senior Advocate and
Shri Kapil Misra, Advocate
Counsel for the Respodent:
Shri Vimal Srivastava, Govt. Advocate and
Shri Chandra Shekhar Pandey, Additional
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860 - Sections 302/34, 394,
411,
120-B
-
challenge
toconviction/death-penalty-murder-no
motive-no previous enmity-weak direct
evidence-deceased died of asphyxia as a
result
of
ante-mortem
stangulationstatement of PW-1 the only eye-witness is
not worthy of credence-her statemetns
are contradictory what have been written
in FIR and what have been stated in the
court-the source of light has not been
shown in the site plan-in the darkness of
night, it is not possible to witness the
incident which is being caused in a
orchard-PW-1
stated
accused
looted
jewellery and mobile but not mentioned in
FIR-Similarly, in her examination -in -
chief, she stated that the accused were
armed with small guns but nothing is
there in the FIR-She stated that some
village-people
saw
the
incident,
at
another place she denies the same-Thus,
the story of prosecution is not worthy of
credence, to prove the charge levelled
against the convict beyond reasonable
doubt-Thus the appellant is entitled for
acquittal.(Para 1 to 30)

The appeal is allowed. (E-6)

List of Cases cited:

1. Rajeev Singh Vs St. of Bih. & anr. (2015) 16
SCC 369

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This Capital sentence Reference
registered as Capital Sentence No.2 of 2017
was made to this Court under Section 366
of Code of Criminal Procedure, 1973 (in
short 'Cr.P.C.') for confirmation of Capital
sentence awarded to the convict Rahul
3 All. State of U.P. Vs. Rahul Singh @ Govind Singh
99
Singh @ Govind Singh in Sessions Trial
No.341 of 2011 State Vs. Rahul Singh @
Govind Singh arising out of Crime

No.858 of 2010 under Sections
302/34, 394, 411, 120-B of the Indian Penal
Code, 1860 ( in short 'I.P.C.'), Police
Station Dalmau, District Rae Bareli by
judgement and order dated 15.6.2017
passed by Shri K.K.Sharma, learned
Sessions Judge, Rae Bareli wherein the
convict Rahul Singh @ Govind Singh has
been punished with death sentence under
Section 302 I.P.C. and with a fine of
Rs.25,000/-.

2. The convict Rahul Singh @ Govind
Singh
preferred
a
Criminal
Appeal
(Defective) No.1342 of 2017 against the
aforesaid judgement and order passed
against him. As there was a delay in filing
the
criminal
appeal,
the
same
was
condoned by a Co-ordinate Bench of this
court
vide
order
dated
10.12.2021.
Thereafter, the office has allotted the
regular number bearing Criminal Appeal
No.376 of 2022.

3. Since the above captioned capital
sentence reference and criminal appeal
no.376 of 2022 arise out of a common
factual matrix and the judgement dated
15.6.2017, therefore we are disposing them
by a common judgement.

4. Shorn off unnecessary details, the
facts necessary for deciding the above
Capital Reference as well as criminal
appeal are as under :-

5. A First Information Report ( in
short 'F.I.R.') was registered on 4.9.2010 at
around 5 O'clock in the morning as crime
no.858/2010 on the basis of a written report
submitted by Ms. Kunti at Police Station
Dalmau, District Rae Bareli. It was stated
in the written report that on the preceding
night, she was sitting with her father Raju
and mother Manju Devi, at the door of the
house near the pond, Rahul Singh @
Govind Singh Son of Rati Bhan Singh,
resident of Purey Bairhana Majrey Valipur
came there alongwith his two aides at
around 2 O' Clock in the night. Rahul Singh
asked for drinking-water from her father
and also asked her father to go and call
Chotu Neta. Her father went to call Chotu
Neta to Village Chandi Ka Purwa. When
her father came back, Rahul and his two
aides locked her and her mother inside her
house and took her father away towards
orchard. They again came back and Rahul
tied her hands on the back and also tied
cloth on the eyes of her mother. They all
left her inside the house and took her
mother away towards orchard and there
they killed her mother and father by
throttling their necks. Thereafter, they
hanged them on the tree. She somehow
escaped from the house and went in village
and told about the incident to the villagers.
When
villagers
came
there,
Rahul
alongwith his aides ran away towards north
of the pond. When Rahul alongwith his
aides, was hanging her mother on the tree,
the electric bulb was lightening on the door
at the time. She got very much frightened
and somehow saved her life. The villagers
had seen the accused persons.

6. After investigation, a chargesheet
no.108/2010 was submitted against convict
Rahul Singh under Section 302, 394, 411
and 120-B I.P.C. Another chargesheet
no.134 of 2010 against co accused Ajay @
Bhanu Yadav, Dharmendra @ D.K. and
Ram Deen @ Ram Ji Baba was submitted.
The concerned Magistrate took cognizance
on the chargesheets and committed the case
to Sessions Court. The Sessions court
100 INDIAN LAW REPORTS ALLAHABAD SERIES
declared Ajay @ Bhanu Yadav a juvenile
and separated his file and sent to the
Juvenile Justice Board for trial.

7. Two separate sessions trials were
registered. The Sessions Trial No.104 of
2011 was registered against accused
Dharmendra @ D.K. and Ram Deen @
Ram Ji Baba and another Sessions Trial
No.341 of 2011 was registered against
convict Rahul Singh. Both the Sessions
Trials were tried, heard and decided
together by the impugned judgement of the
trial court. The charges were framed on
29.9.2011 against accused Rahul Singh @
Govind Singh, Dharmendra @ D.K. and
Ram Deen @ Ram Ji Baba in their
respective Sessions Trials. All the accused
persons denied the charges and claimed to
be tried.

8. The prosecution in order to prove
its case, examined nine witnesses in toto
and also proved the relevant documents
Exhibit. Ka-1 to Ka-16. Nine witnesses
examined are Km. Kunti P.W.-1, Sri Ram
P.W.-2, Shri Shiv baran, P.W.3, Arvind
Kumar Srivastava P.W.-4, Raj Bahadur
Patel P.W.-5, Lok Nath Verma P.W.-6,
Anand Kumar Verma P.W.-7, Kailash
Prakash Yadav P.W.-8 and Vansh Rai Bharti
P.W.-9.

9. Statement of accused persons were
recorded under Section 313 Cr.P.C. wherein
the accused persons denied the crime and
also the recovery. They have also stated
that the case was registered against them
due to enmity and witnesses have deposed
falsely. They refused to give any evidence
in defence. The trial court after hearing the
arguments of both the sides came to the
conclusion that the prosecution has proved
the charges levelled against the accused
Rahul Singh @ Govind Singh under
Section 302 I.P.C. beyond reasonable doubt
but the offence under rest of the Sections
i.e. 394, 411, 120-B I.P.C. could not be
proved.

10. For convicting Rahul Singh, the
learned
trial
court
relied
upon
the
statements of P.W.-1 Ms. Kunti the
complainant, as she was the only eyewitness examined in the court. The trial
court found this witness creditworthy and
opined that the reliability of the witness
could not be shaken by the defence. The
trial court after hearing the convict Rahul
Singh on the point of quantum of sentence
came
to
conclusion
that
the
crime
committed by the convict Rahul Singh
comes under 'Rarest of the Rare category'
and punished him with death sentence
under Section 302 I.P.C. coupled with a
fine of Rs.25,000/-

11. The trial court sent the impugned
judgement and conviction order awarding
the capital sentence for confirmation by
this Court under Section 366 Cr.P.C.

12. Being aggrieved of the aforesaid
judgement and order, the convict Rahul
Singh preferred Criminal Appeal No.376 of
2022 (primarily registered as criminal
Appeal No.1342 (Defective ) of 2017).

13. Heard Shri Jyotindra Mishra
learned Senior Advocate assisted by Shri
Kapil Mishra, learned counsel for the
appellant/
convict
and
Shri
Vimal
Srivastava, learned Government Advocate
assisted by Shri Chandra Shekhar Pandey,
learned A.G.A.

14.

Learned
counsel
for
the
appellant/convict submitted that the only
eye-witness examined in this case is Ms.
Kunti and her statement is not worthy of
3 All. State of U.P. Vs. Rahul Singh @ Govind Singh
101
reliance
because
she
has
given
a
contradictory statement in her examinationin-chief and in cross- examination. Her
statement made in the court also differs
what she has mentioned in the writtenreport. The time of incident in the writtenreport has been mentioned by her at around
2.00 A.M. in the night while in the court
she has stated the time around 11.00 P.M. in
the night. In her examination-in-chief, she
has stated that she knew Rahul Singh prior
to the incident because he used to come to
her house quite often but in the crossexamination, she has stated that she never
saw accused Rahul prior to this incident. It
was also submitted by the counsel for the
convict that the distance where the bodies
were found hanging was about 100 steps
(250 feets) as has been shown in the siteplan so it was not possible to see anything
in a dark night from such a distance.
Though P.W.-1 has stated that electric bulb
was lightening at the door of her house but
no such source of light has been shown in
the site-plan. P.W.-1 has improved her
version in the court and has stated that the
accused also looted two pairs of payals(
anklets), one gold nose-pin and one mobileset from the house of the informant but
nothing has been mentioned in the writtenreport about such loot. In fact, the convict
Rahul Singh was on run from the jail, so
police
was
annoyed
with
him
and
implicated him falsely in the crime. There
is no evidence against the convict Rahul
Singh hence he should be acquitted.

15. Contrary to it, Shri Vimal
Srivastava, learned Government Advocate
submitted that the prosecution has proved
its case against the convict by examining
nine witnesses, before the trial court. P.W.-
1 Kunti the daughter of both the deceased
persons is the eye- witness of the case and
she has supported the prosecution story and
the learned trial court after evaluating the
evidence available on record held guilty
and convicted the appellant by awarding
him capital sentence. The appellant/ convict
is a habitual offender having criminal
history of three more cases prior to the
present case. He also submitted that the
convict committed murder of the parents of
the complainant in a ghastly manner
without showing any mercy towards them
and also without thinking about the
informant, the daughter of the deceased
persons.He also submitted that the medical
evidence
corroborates
the
prosecution
version as the doctors who conducted postmortem on the cadavers of the deceased
persons, have found that the death was
caused by ante-mortem strangulation. He
also submitted that there is no reason to
disbelieve the evidence of eye-witness Km.
Kunti hence learned trial court has rightly
held guilty the convict Rahul Singh under
Section 302 I.P.C. and punished him with
capital sentence. The appeal of the convict
should be dismissed and the reference
made by the trial court should be
confirmed.

16. Considered the rival submissions
and perused the original record. The main
principles of Criminal Law Jurisprudence
in Indian Judicial System are as under :-

i). Prosecution has to prove its
case beyond reasonable doubt.

ii).
The
accused
shall
be
presumed innocent until proved guilty.

iii). The burden of proof i.e. onus
of proving the accused guilty beyond
reasonable doubt never shifts.

17. The Hon'ble Supreme Court of
India in the case of Rajeev Singh Vs. State
of Bihar and another : (2015) 16 SCC
369, has held as under :
102 INDIAN LAW REPORTS ALLAHABAD SERIES

"66.
It
is
well-entrenched
principle of criminal jurisprudence that a
charge can be said to be proved only when
there is certain and explicit evidence to
warrant legal conviction and that no
person can be held guilty on pure moral
conviction. Howsoever grave the alleged
offence may be, otherwise stirring the
conscience of any court, suspicion alone
cannot take the place of legal proof. The
well-established canon of criminal justice
is "fouler the crime higher the proof". In
unmistakable terms, it is the mandate of
law that the prosecution in order to succeed
in a criminal trial, has to prove the
charge(s) beyond all reasonable doubt."

71. In his treatise, The Law of
Evidence, Professor Ian Dennis while
dwelling on the theme of allocation of
burden in criminal cases, elaborated on the
significance and purport of presumption of
innocence and the general rule of the
burden of proof. While reiterating the
fundamental
notion
of
criminal
jurisprudence, that a person is presumed to
be innocent until proven guilty and that the
burden of proof in a criminal case is on the
prosecution to establish the guilt of accused
beyond reasonable doubt, the author
underlined
that
the
acknowledged
justification of such presumption is that the
outcome of a wrong conviction is regarded
as a significantly worse harm than
wrongful acquittal.

72. Viewed from the moral and
political perspectives, it has been observed
that in liberal states, the rule about the
burden of proof has been elevated to the
status
of
fundamental
human
right
encompassing the assurance of liberty,
dignity and privacy of the individual and
from this standpoint it is essential that the
state should justify fully its invasion of the
individual's interest by proving that he had
committed an offence, thereby abusing the
freedom of action accorded to him or her
by the liberal state. The significance of
such
presumption
finds
insightful
expression in the following extract of State
Vs. Coetzee [1997] 2 L.R.C.593, South
African Constitutional Court in the words
of Sachs,J.:

"There is a paradox at the heart
of all criminal procedure in that the more
serious the crime and the greater the public
interest in securing convictions of the
guilty, the more important do constitutional
protections of the accused become. The
starting point of any balancing enquiry
where constitutional rights are concerned
must be that the public interest in ensuring
that innocent people are not convicted and
subjected to ignominy and heavy sentences
massively outweighs the public interest in
ensuring that a particular criminal is
brought to book .... Hence the presumption
of innocence, which serves not only to
protect a particular individual on trial, but
to maintain public confidence in the
enduring integrity and security of the legal
system. Reference to the prevalence and
severity of a certain crime therefore does
not add anything new or special to the
balancing exercise. The perniciousness of
the offence is one of the givens, against
which the presumption of innocence is
pitted from the beginning, not a new
element to be put into the scales as part of
a justificatory balancing exercise. If this
were not so, the ubiquity and ugliness
argument could be used in relation to
murder,
rape,
car-
jacking,
house
breaking,drug-smuggling, corruption... the
list is unfortunately almost endless, and
nothing would be left of the presumption of
innocence, save, perhaps, for its relic status
as a doughty defender of rights in the most
trivial of cases."

The
quintessence
of
the
philosophy embedded in the above extract
3 All. State of U.P. Vs. Rahul Singh @ Govind Singh
103
is that the presumption of innocence serves
not only to protect a particular individual
on trial but to maintain public confidence
in the enduring integrity and security of the
legal system.

77. Distraught though one would
be, by the calamitous incident, judicial
adjudication has to be assuredly guided by
the recognised legal dicta and cannot be
swayed by emotional or sentimental surges.
Justice has to be administered essentially in
accordance with law and uninfluenced by
individual
predilections,
notions
and
prejudices......"

18. Now, we have to examine this
matter
and
appreciate
the
evidence
available on record keeping in mind the
aforesaid cardinal principles of criminal
jurisprudence.

19. Admittedly, there is no eyewitness of the crime except Km. Kunti
P.W.1 the daughter of both the deceased
and also the complainant of the case. No
doubt it is settled law that the evidence of a
relative witness cannot be doubted or
discarded only for the reason that he or she
is a relative of the deceased, if the evidence
is worthy of raising confidence of the court.
Km. Kunti has mentioned in the F.I.R. that
she alongwith her deceased parents were
sitting in front of the door of her house at
2.00 A.M. in the night. The accused Rahul
alongwith his two aides came there and
asked for drinking-water. Thereafter, he
asked her father to go and call Chotu Neta
from a nearby village Chandi Ka Purwa.
When her father came back, Rahul and his
two aides locked her and her mother inside
her house and took her father away towards
orchard. They again came back and Rahul
tied her hands on the back and tied a cloth
on the eyes of her mother. They left her in
the house and took her mother away
towards the orchard and killed her mother
and father by throttling their necks and
hanged them separately on the tree. She
somehow escaped and went in the village
and told everything to the village people.
When village people came there, Rahul
alongwith his aides ran away towards the
north of the pond. This witness was
examined
in
the
court
initially
on
20.10.2011. In her examination-in-chief,
she has stated that she knew accused Rahul
Singh. He used to come at her house quiteoften. The incident occurred about one year
ahead. She alongwith her mother Manju
and father were sleeping outside the house.
At that time, Rahul alongwith two other
persons came there and asked for drinkingwater. She gave him water in a 'lota' ( a
small vessel in round shape) but her father
asked her to bring the water in a bucket.
Then she brought water in a bucket and
also some sugar. Her father handed over the
water and sugar to them. They went away.
After some time, Rahul came back to return
the bucket and asked her father to go and
call Chotu Yadav. Chotu Yadav is a resident
of village Chandi Ka Purwa and is a leader.
Her father was not ready to go, then Rahul
asked him "you go nothing will happen to
you". Thereafter her father went to call
Chotu to his village. When his father went,
Rahul asked his aides to tie her and her
mother's hands and locked them inside a
room in the house. She and her mother
could not raise cry due to fear. When her
father came back, Chotu Yadav was not
with him. Thereafter, Rahul took her father
away tying her hands, towards the orchard.
At that time one lamp (chimni) was
lightening there. About half an hour later,
Rahul and his aides came back and they
picked up two pairs of silver payals(
anklets) one gold nose pin of her mother
and one mobile, forcibly. Thereafter they
tied cloth on the eyes of her mother and
104 INDIAN LAW REPORTS ALLAHABAD SERIES
took her away towards the orchard and
forgot to lock the door. They killed her
parents. Police personnel asked her to lodge
a report so she went to the police station
and got written the report by someone and
lodged the F.I.R. She proved her written
report as Exhibit -Ka-1. She has further
stated that the investigating officer asked
her about the incident and she told
whatever he asked. She has further stated
that at the time of incident, one electricbulb was lightening at the door of her
house. In the light of electric-bulb, she
witnessed that Rahul Singh and two other
persons were killing and hanging her
parents. She has further stated that accused
persons first pressed the neck of her parents
and tied the hands on the back thereafter
they hanged them on the tree. She has
further stated that in the room where she
was locked, one 'Chimni' (lamp) was
lightening. She somehow came from her
house and saw that Rahul and other persons
were killing and hanging her parents on the
tree. She has further stated that the accused
persons were seen by the village-people
also. The accused persons were armed with
small guns. She identified the accused
persons present in the Court and told that
these are the accused persons who killed
her parents.

20. P.W.-2 Shri Ram is brother-in-law
of the deceased Raju. He has stated that he
did not see anything. Whatever he has
stated was told by Ms. Kunti, P.W.-1.

21. P.W.-3 is Shiv Baran Singh, who
was the Gram Pradhan at that time. He
stated in the Court that the incident occurred
at about 2-3 O' Clock in the night. He
reached on the spot after hearing the noise
and found the dead bodies of the deceased
persons hanging on a mango-tree, in the
orchard. Km. Kunti and other persons were
present there. He asked Km. Kunti about the
incident. She told him about the incident.
This witness has stated that these facts were
narrated to him by Kunti at about 5.00 A.M.
in the morning. He did not see the incident
himself. When he reached the spot, police
was present there.

22. P.W.-4 is Dr. Arvind Kumar
Srivastava who conducted post-mortem on
the cadavers of both the deceased and found
the following ante-mortem injuries on the
cadaver of Raju :-

"Ante Mortem Injuries

Ligature mark around the neck 15
cm x 2-1/2 cm (front side mostly) present,
transversely circular over the prominence
adam, Base of ligature mark pale soft,
reddish margins. As described - C gap of 2
cm. post and lateral aspect of neck. Total
circumference of neck 43 cms."

The cause of death has been
mentioned "due to asphyxia as a result of
ante mortem strangulation."

23. On the cadaver of deceased Manju,
the following ante mortem injuries were
found :-

"Ante Mortem injuries

i). Circular ligature mark of 12
cm x 2 cm over adam apple. C-Gap on
lateral and Postirior aspect of 28 cm.
Transversely placed over the front and
lateral aspect of neck. Base of ligature
mark
pale,
soft
reddish
margins.
Ecchymosis on the either side of the
ligature mark. Perchamentization of skin
under the ligature mark present.

Total Circumference of neck - 40
cm. Hyoid Bone on Palpation fractured."

Cause
of
death
has
been
mentioned "due to asphyxia as a result of
ante mortem strangulation."
3 All. State of U.P. Vs. Rahul Singh @ Govind Singh
105

24. The time of death has been
mentioned within one day from the time of
post-mortem and has been explained i.e.
within twenty four hours.

25. We examined the evidence of
P.W.-1 Km. Kunti who is the only eyewitness of the incident, we found that Km.
Kunti in her statement has stated that
accused persons forcibly picked up two
pairs of silver payals (anklets) and one gold
nose-pin and one mobile-set from her
house at the time of the incident but
nothing has been mentioned about this loot
or picking up of jewellery in the F.I.R. Km.
Kunti who is also the complainant of the
case has mentioned in the F.I.R. that she
alongwith her deceased parents was sitting
in front of the door of her house at 2.00
A.M. in the night and accused Rahul
alongwith his two aides came there. But
when she was examined in the court as
P.W.-1, she has stated that at about 10-11
A.M. in the night, she alongwith her
parents was sleeping outside the house and
accused Rahul alongwith his two aides
reached there. The time mentioned in the
F.I.R. and stated as P.W.-1 has a remarkable
difference and it is a major contradiction in
the statement of the alleged eye-witness.

26. The motive of crime has neither
been alleged nor proved. Though it is not
always necessary to prove the motive of the
crime because no one can peep into the
mind of a miscreant but where the direct
evidence is of weak type, then it gives
strength to the prosecution case. Km. Kunti
has stated in her cross- examination that
there was no enmity of her with Rahul or
his aides. In the examination-in-chief, she
has also stated that accused were armed
with small guns but nothing is there in the
F.I.R. about these guns which is a material
fact. She has stated that some villagepeople saw the incident, at another place
she denies the same. The evidence of P.W.-
1 does not have a ring of truth. The story of
prosecution and the evidence led to prove
the same is not worthy of credence, to
prove the charge levelled against the
convict Rahul beyond reasonable doubt.
The evidence is not such as to raise the
confidence of the court. In the present
matter, the prosecution could not prove the
charges levelled against the convict beyond
reasonable doubt as evidence of only eyewitness of the incident i.e. P.W.-1 is not
worthy
of
credence.
There
are
contradictions on the point of time and also
what have been written in the F.I.R. and
what have been stated in the court.

27. The source of light though stated
by the P.W.-1 has not been shown in the
site-plan Exhibit- Ka-6, the distance from
the house of the deceased where P.W.-1
was present, and of the place of
occurrence was about 70-72 paces. In the
darkness of in a night, it is not possible to
witness the incident which is being
caused in a orchard without proper and
direct light. Hence to sum up, that the
prosecution could not prove the charges
levelled against the accused beyond
reasonable doubt. The learned trial court
has erred in appreciating the evidence of
P.W.-1 and holding guilty and convicting
the accused on the basis of that evidence.
The Court is conscious of the fact that the
parents
of
the
complainant
were
murdered but whether it was the appellant
who has killed them that has not been
proved by the prosecution by cogent and
clinching evidence. Thus, the appellant is
entitled
for
acquittal
hence,
he
is
acquitted of the charges. The impugned
judgement and order passed by the trial
court deserves to be set-aside and death
reference is liable to be rejected.
106 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Consequently, the criminal appeal
preferred by the convict is allowed. The
impugned judgement and order dated
15.6.2017 passed by the trial court in
Sessions Trial No.341 of 2011 State Vs.
Rahul Singh @ Govind Singh arising out of
Crime No.858 of 2010 under Section
302/34, 394, 411, 120-B I.P.C., Police
Station
Dalmau,
District
Rae
Bareli
wherein the convict Rahul Singh @ Govind
Singh has been punished with death
sentence under Section 302 I.P.C., is hereby
set aside.

29. Capital sentence Reference
registered as Capital Sentence No.2 of
2017, referred under Section 366 of Cr.P.C.
for confirmation of Capital sentence
awarded
to
the
convict/appellant,
in
aforesaid Sessions Trial, is hereby rejected.

30. Let the convict Rahul Singh @
Govind Singh convict in Sessions Trial
No.341 of 2011 State Vs. Rahul Singh @
Govind Singh arising out of Crime No.858
of 2010 under Section 302/34, 394, 411,
120-B I.P.C., Police Station Dalmau,
District Rae Bareli be released from the
concerned jail, if not required in any other
case.

31. Appellant Rahul Singh @ Govind
Singh is directed to file personal bond and
two sureties each in the like amount to the
satisfaction of the court concerned in
compliance with Section 437-A of the Code
of Criminal Procedure, 1973.

32. Let a copy of this order alongwith
original record be transmitted to the trial
court concerned forthwith for necessary
information and further action.
----------
(2022)03ILR A106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Case No. 4 of 2020
With
Reference No. 3 of 2020

Upendra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Abhay Raj Yadav, Sri Dinesh
Kumar, Sri Rakesh Prasad

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

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code,1860 - Section 302, 376challenge
to-conviction/death
penaltyblind murder-FIR anti-timed-testimony of
PW-1 renders the testimony of PW-3 and
PW-4 unreliable and unacceptable-PW-3
is a chance witness whose presence at the
spot appears unnatural and her testimony
that she narrated everything to PW-1 is at
variance with what PW-1 states-PW-3
though speak of being a witness of both
rape and murder but gives no description
of how the victim was murdered-ligature
marks found on the neck, have no
explanation in the ocular account and
there is no recovery of ligature, either
from the spot or from anywhere elserecovery of vest is completely bogus, the
vest could not be forensically connected
with the crime-the testimony of PW-4 that
he saw accused running away from a
distance is also unrelaible becuase the
sugarcane crops would have blocked his
view, even otherwise, PW-3 could not
disclose the colour of clothes worn by the
accused when he noticed him runnning
away-no presence of spermatozoa in