# State of U.P v. Santosh Kumar Nat & Anr

- **Citation:** (2022) 4 ILRA 1147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-28
- **Case number:** Capital Case No. 1 of 2019
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-santosh-kumar-nat-anr-48389
- **Pages:** 26

## Headnote

A. Criminal Law - Indian Penal Code,1860
- Sections 302 & 201 - Circumstantial
Evidence.--The last seen evidence is very
important evidence and if proved and found
trustworthy it can singularly lead to the
inference of guilt.

B. In case of circumstantial evidence there
should not be any snap in the chain of
circumstances. If there is any snap in the chain,
the accused is entitled to benefit of doubt. If
some of the circumstances in the chain can be
explained by any other reasonable hypothesis,
then also the accused is entitled to benefit of
doubt.
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Evidence of "last seen together" do not by
themselves lead to the inference that the
accused committed the crime unless and until
there
is
something
more
establishing
connectivity between the accused and the
crime.

D. Section 106 of Evidence Act.--- In case it is
established that the accused was last seen
together with the deceased prosecution is
exempted to prove exact happening of the
incident and burden of proof shifts on the
accused to prove the same.

E. Time gap between last seen alive and
recovery of dead body must be so small that the
possibility of any person other than the accused
being the author of the crime becomes
impossible.

F. It is the nature and gravity of the crime and
the manner in which it is committed which are
germane
for
consideration
of
appropriate
punishment in a criminal trial.

Capital Case is dismissed. Jail Appeal is
partly allowed. (E-11)

List of Cases cited:-

## Text

_Characters 0–39,994 of 88,285. This is a partial read: ask again with offset=39994 for what follows._

4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1147
being found to be trustworthy, reliable and
cogent, it will not be necessary for the
prosecution to prove the motive for the crime.
In the present case, we have already held
hereinabove, that the testimony of the eyewitnesses is wholly reliable and trustworthy.
Even otherwise, as per the prosecution
version, the main motive behind the crime
was with regard to the dispute over bidai of
the second wife of the deceased Hira Lal and
appellants in the instant appeal are the
brothers of the second wife and at the time of
the incident, the second wife of the deceased
was residing at the house of the appellants.
When the deceased along with P.W.1 and
P.W.2 went to take back his second wife
Seema, scuffle took place between appellants
and their father and the deceased Hira Lal.
After that deceased Hira Lal became annoyed
and in an annoyed stage, the deceased Hira
Lal left along with P.W.1 and P.W.2 towards
his house and in the way, the appellants
surrounded and committed the crime. These
all establishes the immediate motive of the
appellants to commit the murder of the
deceased Hira Lal.

62. Considering the aforesaid, we are of
the view that the prosecution has proved his
case beyond reasonable doubt against
appellants Kamlesh alias Ghora and Rajesh
and their conviction and sentence for the
murder of deceased by the impugned
judgment is fully justified.

63. In view of the foregoing
discussions, the conviction and sentence of
the appellants Kamlesh alias Ghora and
Rajesh for the murder of deceased Hira Lal
by means of the impugned order dated
06.04.2009/09.04.2009 does not call for any
interference by this Court.

Appellants Kamlesh alias Ghora
and Rajesh are in jail and they shall serve
out the sentence as ordered by the trial
Court.

64. Both the above-captioned appeals
stand dismissed.

65. Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
necessary information and compliance.
----------
(2022)04ILR A1147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.04.2022

BEFORE

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

Capital Case No. 1 of 2019
connected with
Jail Appeal No. 2322 of 2019

State of U.P. ...Appellant
Versus
Santosh Kumar Nat & Anr. ...Respondents

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:

A. Criminal Law - Indian Penal Code,1860
- Sections 302 & 201 - Circumstantial
Evidence.--The last seen evidence is very
important evidence and if proved and found
trustworthy it can singularly lead to the
inference of guilt.

B. In case of circumstantial evidence there
should not be any snap in the chain of
circumstances. If there is any snap in the chain,
the accused is entitled to benefit of doubt. If
some of the circumstances in the chain can be
explained by any other reasonable hypothesis,
then also the accused is entitled to benefit of
doubt.
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Evidence of "last seen together" do not by
themselves lead to the inference that the
accused committed the crime unless and until
there
is
something
more
establishing
connectivity between the accused and the
crime.

D. Section 106 of Evidence Act.--- In case it is
established that the accused was last seen
together with the deceased prosecution is
exempted to prove exact happening of the
incident and burden of proof shifts on the
accused to prove the same.

E. Time gap between last seen alive and
recovery of dead body must be so small that the
possibility of any person other than the accused
being the author of the crime becomes
impossible.

F. It is the nature and gravity of the crime and
the manner in which it is committed which are
germane
for
consideration
of
appropriate
punishment in a criminal trial.

Capital Case is dismissed. Jail Appeal is
partly allowed. (E-11)

List of Cases cited:-

1. St. of Raj. Vs Kheraj Ram : (2003) 8 SCC 224

2. Vilas Pandurang Patil Vs St. of Mah.: (2004) 6
SCC 158

3. Arun Bhanudas Pawar Vs St. of Mah.: 2008
(61) ACC 32(SC)

4. Vithal Eknath Adlinge Vs St. of Mah. : AIR
2009 SC 2067

5. Vijay Kumar Vs St. of Raj. : (2014) 3 SCC 412

6. Bhimsingh Vs St. of Uttarakhand : (2015) 4
SCC 281

7. Rohtas Kumar Vs St. of Har.: 2013 (82) ACC
401 (SC)

8. Prithipal Singh Vs St. of Pun., (2012) 1 SCC
10

9. Ashok Vs St. of Mah. : (2015) 4 SCC 393
10. St.of Goa Vs Pandurang Mohite : AIR 2009
SC 1066

11. St.of UP Vs Satish : 2005 (3) SCC 114

12. Sardar Khan Vs St. of Karn. : (2004) 2 SCC
442

13. Ravi Vs St. of Karn. : AIR 2018 SC 2744

14. Mohibur Rahman Vs St.of Assam : (2002) 6
SCC 715

15. Malleshappa Vs St. of Karn. : (2007) 13 SCC
399

16. Machi Singh Vs St. of Pun. (1983) 3 SCC 470

17. Ravji Vs St. of Raj. : (1996) 2 SCC 175

18. Swamy Shraddananda (2) Vs St. of Karn.:
(2008) 13 SCC 767

19. Raj Kumar Vs St. of M.P., (2014) 5 SCC 353

20. Selvam Vs State : (2014) 12 SCC 274

21. Tattu Lodhi Vs St. of MP, (2016) 9 SCC 675

22. Sachin Kumar Singhraha Vs St. of MP :
(2019) 8 SCC 371
(Delivered by Hon'ble Ramesh Sinha, J.)

(A) INTRODUCTION

(1) Two accused persons, namely,
Santosh Kumar Nat and Mamman alias
Sonu alias Tejpal, were tried by the
Additional District & Sessions Judge/
Special Judge (POCSO Act), Faizabad in
Special Sessions Trial No 84 of 2014
(C.N.R.
No.
UPFZ01-001666-2014,
Registration No. 466 of 2014) : State Vs.
Santosh Kumar Nat and another, arising
out of Case Crime No. 357 of 2014, under
Sections 302, 376A, 376D, 377 and 201 of
the Indian Penal Code, 1860 (in short,
referred hereinafter as ''I.P.C.') and Section
3/4 of the Protection of Children from
4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1149
Sexual Offences Act, 2012 (in short,
referred hereinafter as ''POCSO Act'),
Police Station Kotwali Bikapur, District
Faizabad.

(2) Vide judgment and order dated
16.11.2019, the Additional District &
Sessions Judge/Special Judge (POCSO
Act), Faizabad, convicted and sentenced
accused persons, Santosh Kumar Nat and
Mamman alias Sonu alias Tejpal, in the
manner as stated hereinbelow :-

i. Under Section 302 I.P.C. to be
hanged to death till they are dead and fine
of Rs.50,000/-. In default of fine, two years
additional rigorous imprisonment;

ii. Under Section 376A I.P.C. to
undergo life imprisonment;

iii. Under Section 376D I.P.C. to
undergo rigorous imprisonment for life
along with fine of Rs.25,000/-. In default of
fine,
one
year
additional
rigorous
imprisonment;

iv. Under Section 377 I.P.C. to
undergo rigorous imprisonment for life
along with fine of Rs.25,000/-. In default of
fine,
one
year
additional
rigorous
imprisonment; and

v. Under Section 201 I.P.C. to
undergo seven years R.I. and fine of
Rs.10,000/-. In default of fine, six years
additional rigorous imprisonment.

All the sentences were directed to
run concurrently.

(3) Aggrieved by the aforesaid judgment
and
order
dated
16.11.2019,
convicts/appellants, Santosh Kumar Nat and
Mamman alias Sonu alias Tejpal, preferred
Jail Appeal No. 2322 of 2019 : Santosh Kumar
Nat and another Vs. State of U.P.

(4) Capital Case No. 1 of 2019 arises
out of the Reference made by the learned
trial Court under Section 366 (1) of the
Code of Criminal Procedure, 1973 to this
Court for confirmation of the death
sentence of convicts Santosh Kumar Nat
and Mamman alias Sonu alias Tejpal.

(5) Since the above-captioned capital
sentence reference and jail appeal arise out of
a common factual matrix and impugned
judgment dated 16.11.2019, we are disposing
of these matters, by this common judgment.

(6) In view of the judgments of the
Apex Court in Bhupinder Sharma Vs. State
of H.P. : (2003) 8 SCC 551 and Nipun
Saxena and another Vs. Union of India
and others : 2018 SCC OnLine 2772, the
name of the victim is not being mentioned
and describe her as "victim X" in the
judgment hereinafter.

(B) FACTS

(7) The informant Sri Prem Chandra
(P.W.1) had filed written report (Ext. Ka.1),
alleging therein that on 11.09.2014, at about
06:00 p.m., his daughter, the ''victim X', aged
about 06 years, had gone from house on the
outer side of village for call of nature, after
informing to her mother Usha (P.W.3) but she
(''victim X') did not return home, then, they
searched a lot but could not trace her. His
daughter's appearance is dark colour; small
hair on the head; short height 23⁄4 feet;
average built; barefoot; and wore pink colour
frock, tight pink-colour paijama, pink colour
underwear, silver ear rings in the ears; and
simple nose pin on the nose. His daughter is
frequent in conversation and is aware of her
name and address. It has further been stated
that he did not have any enmity with anyone
nor has any land dispute.

(8) On the basis of the aforesaid
written report (Ext. Ka.1), an F.I.R. (Ext.
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka.9), bearing Case Crime No. 357 of
2014, was registered under Section 363
I.P.C., Police Station Kotwali Bikapur,
District Faizabad, against unknown person.

(9) The evidence of P.W.6-Constable
Rakesh Kumar shows that on 12.09.2014,
he was posted as Constable at Police
Station Bikapur, District Faizabad. On the
said date, on the basis of the written report
(Ext. Ka.1) submitted by the informant
Prem Chandra (P.W.1), an F.I.R. (Ext.
Ka.9) bearing Case Crime No. 357 of 2014,
under Section 363 I.P.C. was registered by
him against unknown person at 12:30 a.m.
in chik no. 191 of 2014.

In
cross-examination,
P.W.6Constable Rakesh Kumar had deposed that
this case is five years old and it was not
registered in the presence of S.O. but it was
registered in the presence of the officer
present in night. The informant Prem
Chandra (P.W.1) had come to his office
with a written report for lodging F.I.R. He
further deposed that he could not tell
whether informant Prem Chandra (P.W.1)
was literate or not. When the informant
(P.W.1) came for lodging the report, then,
he came with written report with signature
affixed thereon. He saw the written report.
On seeing the written report, it appeared
that it was written by some other person
and the signature only thereon was of the
informant (P.W.1). When the informant
(P.W.1) came with written report, he
immediately started writing the case. He
did not remember how long he (P.W.1)
stayed at police station. He further deposed
that the mobile number, which was written
in the report, was not verified by him.
When the informant (P.W.1) had come to
lodge the case, it was 12:30 in the night. He
did not remember who was the staff present
in the police station at that time apart of
him. The investigation of the case was
handed over to SI Munendra Pal Singh
(P.W.9), In-charge of Chaure Bazar outpost.
The information in this regard was given to
SI Munendra Pal Singh (P.W.9) by post on
the instruction of S.H.O. He was posted at
police station Bikapur from 2012 to 2014.
He did not know when the name of the
accused in this case came to light.

(10) A perusal of the chik F.I.R. (Ext.
Ka. 9) reveals that the distance between the
place of the incident and police station
Bikapur is 12 Kms. It is significant to
mention that a perusal of the chik FIR also
shows that on the basis of written report
(Ext. Ka.1), Case Crime No. 357 of 2014,
under Section 363 I.P.C. was registered
against unknown person.

(11) The evidence of P.W.4-Awadhesh
Kumar shows that on 12.09.2014, he was
posted
as
Naib
Tehsildar,
Bikapur,
Faizabad.
On
the
said
date,
''panchayatnama' of the deceased ''victim
X' daughter of Prem Chandra Kori, resident
of Chaure Chandauli (Bhaujai-Ka-Purwa),
Police Station Kotwali Bikapur, was
conducted on spot between 10:30 a.m.-
01:00 p.m. In the presence of ''panchan'
Prem Chandra Kori, Phool Chandra,
Bhagelu,
Dipak
and
Surjeet,
''panchayatnama' (Ext. Ka.2) was written
before him by SI and got it prepared with
his signature. He got prepared letter to
Reserve Inspector (Ext. K.3), letter to the
Chief Medical Officer (Ext. Ka.4), photo
lash (Ext. Ka 5), Form-13 (Ext. Ka.6) and
specimen seal (Ext. Ka.7), under his
handwriting and signature on the spot.

In
cross-examination,
P.W.4Awadhesh Kumar had deposed that he had
got the ''panchayatnama' prepared of this
case. He had appointed witnesses of
4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1151
inquest, out of whom two persons were of
the family of the deceased and rest from
outside. Out of two persons in the family of
the deceased, one person was the father of
the deceased, namely, Prem Chandra
(P.W.1) and names of others were not
remembered. He took the opinion of
witnesses of inquest collectively as well as
separately. All of them told that death of the
deceased seems to be on account of
drowning in water.

(12) The investigation of the case was
conducted by P.W.9-S.I Munendra Pal
Singh, who, in his examination-in-chief,
had deposed that when he was posted as
Chowki In-charge, Chaure Bazar, Police
Station
Bikapur,
District
Faizabad,
investigation of Case Crime No. 357 of
2014, under Section 363 I.P.C. was handed
over to him against unknown persons. The
copy of the chik report was supplied to him
during the investigation at the place of
incident through Home Guard. He started
to conduct the investigation of the case
from
12.09.2014.
He
recorded
the
statement of the informant (P.W.1), his wife
Smt. Usha (P.W.3) and his mother Smt.
Bachauna
(P.W.2)
and
during
the
investigation, he recovered the dead body
of the missing girl ''victim X' from
''Gadayee' (small pond). On the direction of
Naib Tehsildar,
''panchayatnama'
was
prepared and after preparing it, the dead
body was sent for post-mortem. He,
thereafter, inspected the place of recovery
of the dead body and recorded the
statement of witness of the incident and
witness of inquest Sri Surjeet Bhagelu. He
also inspected the place of the incident. He
prepared the site plan of the place of the
incident (Ext. Ka.11) and also site plan of
the recovery of the deadbody (Ext. Ka.12).
He proved the sealed articles under
recovery memo (Ext. Ka. 13), which were
recovered from the place of the incident
and kept in six different containers. He
further deposed that during investigation on
the basis of evidence of the witnesses, he
found the involvement of Santosh Kumar
Nat and Mamman alias Tej Pal alias Sonu
Nat (appellants) in the incident. He deposed
that after receipt of the second copy of
post-mortem report in the office, after its
perusal and on confirmation of committing
rape and unnatural sex with the ''victim X',
deleted Section 363 I.P.C., added Sections
376 (1), 377, 302, 201 I.P.C. and Section
3/4 of POCSO Act and entry of which was
made in the G.D. The further investigation
of the case was done by S.H.O. Sripal
Singh, who had died. He had seen him
reading and writing. He further deposed
that S.H.O. Sripal Singh, on perusal of the
post-mortem report, found that the cause of
death was due to respiratory obstruction
and ante-mortem injuries and recorded in
CD II. He recorded the statement of Sagar
Nat, Santosh Kumar Nat, Suraj Kumar
Singh, Indra Bahadur Yadav. In CD III, the
search and address clues of the accused
have been observed. In CD No. 4, 5 and 6,
endorsement in respect of clues of address
was made. In GD No. 7, endorsement of
the arrest and recording of statements of
accused Santosh Nat and Mamman Nat was
made and during investigation, Sections
376A and 376D I.P.C. were added.

In
cross-examination,
P.W.-9
Munendra Pal Singh had deposed that
recovered articles were sent to laboratory for
medical examination, which were not
received so far. He did not record the
statement of accused Indra Bahadur Yadav
nor he met him. He was the first Investigating
Officer in this case. He conducted the
investigation of the case till 12.09.2014. He
got the investigation of this case after
midnight on 12.09.2014 but did not
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
remember the time, however, it was almost
1:30 a.m. in the night. He conducted the
investigation till 12.09.2014 at 21:20 hours.
He conducted the investigation for less than
24 hours. The case was not registered in his
presence. On 12.09.2014, the In-charge of the
police station was Inspector Sripal Singh. He
further deposed that during his investigation,
he recorded the statement of the informant
Prem Chandra (P.W.1), his wife (P.W.3) and
his mother Smt. Bachauna (P.W.2). After
receiving material of case, he had perused the
chik F.I.R. In the written report, word ''author'
is not mentioned. He deposed that he did not
see at the moment who wrote Ext. Ka. 1. He
denied the suggestion that written report of
the said case was written by him.

P.W.9 Munendra Pal Singh, in his
cross-examination, had further deposed that
the case was lodged on 12.09.2014. He was
not at the police station when the case was
lodged as he was patrolling in the area. On
the information of villagers, he went to the
village. Home Guard Ashok Pandey had
brought the copy of the FIR on the spot. He
deposed that if any information/Tahrir has
been sent by the informant (P.W.1) to the
police station through post, then, he is not
aware of it. He reached the spot at around
1:00 am in the night. He went alone to the
village. The police force had arrived after 1012 minutes when he reached the spot. He did
not remember, who came at that time.
Inspector in-Charge Sripal Singh had come to
the spot and other people also came. The
Inspector In-Charge had arrived only after
10-12 minutes by the government-vehicle.
Sub-Inspector Rajesh Yadav, Sriprakash
Singh and other police personnel were there.
He saw the Chick F.I.R. on the spot and
started the investigation. On the spot,
informant Prem Chandra (P.W.1) and his wife
Usha Devi (P.W.3) and his mother Bachauna
Devi (P.W.2) were present. Other people of
the village had also gathered. They started to
search the missing girl. The search for the girl
continued till her body was not found. The
body of the girl was found in a ''Gadayee'
(small pond) at 10:00 am. The informant of
the case was also along with him. He did not
write the written report. The Investigating
Officer was changed on 12.09.14. Being a
case of 302 IPC, the investigation was
handed over to SHO Sripal Singh. The
Investigating Officer was changed after
recovery of dead-body. His transfer from
Bikapur Police Station took place after 10-15
days. He did not know who became I.O. after
Sripal. He did not know that the body of the
girl was recovered in the presence of accused
Santosh Kumar s/o Kamala Prasad and Indra
Bahadur Son of Vindeshwari. He is not aware
that accused Santosh Kumar s/o Kamla
Prasad was the driver of a local MLA Abhay
Singh. It is wrong to say that after arresting
the accused Santosh and Indra Bahadur from
the spot, they were released from the police
station under the pressure of Abhay Singh.
The pond from where the corpse was
recovered, was filled with water. Immediately
after the body was found, it was sent for postmortem after ''panchnama' in the same
condition. The body was not washed with
water. He is not aware of the fact that on the
complaint of the informant, his wife and
villagers, the Investigating Officer was
changed. Later on, the Investigating Officer
Sripal Singh had passed away. He did not
arrest the accused. He did not know who had
arrested them. He is not aware that the
villagers had given a complaint to the
Governor. He is also not aware who had sent
the sample for DNA test. He denied the
suggestion that he has not done the
investigation fairly and had implicated the
innocent and saved the accused persons.

(13) The evidence of P.W.8 Manoj
Kumar shows that on 20.09.2014, he was
posted as SSI at police station Bikapur,
4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1153
district Faizabad. On the said date, the
investigation of Case Crime No. 357 of
2014, under Sections 376 (1), 376A, 376 D,
377, 302, 201 I.P.C. and 3/4 of the POCSO
Act was conducted by his erstwhile
Investigating Officer Sripal Singh and after
his transfer, the investigation of the case
was entrusted to him. After taking over the
investigation of the case and on perusal of
the post-mortem report of deceased ''victim
X' as well as original ''panchayatnama', he
made endorsement of the same in the case
diary and also enclosed the same with case
diary. During investigation, on 21.09.2014,
he recorded the statement of witness of
''panchayatnama' Phoolchand s/o Ramraj
resident of Bhujai Ka Purwa, Chaure
Chandauli, witness Dipak Kumar s/o
Rajaram, Prem Chandra s/o Ram Raj
(informant P.W.1). During interrogation,
the aforesaid witnesses confirmed to him
the murder of the deceased ''victim X' by
accused Santosh Kumar and Mamman.
After that, Sub-Inspector Uday Raj Yadav
took over the investigation of the case
being Station In-charge.

In
cross-examination,
P.W.8Manoj Kumar had deposed that on
20.09.2014, the investigation of the case
was entrusted to him. Prior to him, the
investigation of this case was conducted by
the then Inspector-in-charge Sripal Singh.
On account of the transfer of the then
Inspector-in-Charge Sripal Singh to nondistrict, the investigation of the case was
entrusted to him. From 13.9.14 to 18.9.14,
the investigation was conducted by the
former Investigating Officer Sripal Singh
and during that time, his posting was in
Bikapur police station. He was with him
(Sripal Singh) occasionally during the
investigation. It has been mentioned by the
earlier
Investigating
Officer
that
the
accused Santosh Kumar Nat and Mamman
could run away to Mumbai. Accused
Santosh Kumar Nat was not arrested from
Mumbai. He stated that it is true that in the
statement given in the Court by informant
Prem Chandra (P.W.1) on oath, it is
mentioned that Santosh (accused) was
arrested by the police from Mumbai. He
had no knowledge whether the informant or
villagers had given any application against
the Investigating Officer. He further stated
that it is true that the arrest of accused
Santosh Kumar Nat was made on 18.9.14
i.e. a week after the incident. He denied the
suggestion that he also went to Mumbai to
arrest the accused Santosh Kumar Nat.

P.W.8
further
deposed
that
investigation of the case remained with him
for two days. After that, the newly
appointed SHO SI Shri Uday Raj Yadav
(P.W.7) took over the investigation. In these
two days, he was able to take the statement
of witness of ''panchan' only. He was not
present at the time of the recovery of the
dead body. He was at the police station at
that time. He could not tell in whose
presence the body was recovered. He
denied the suggestion that the investigation
was withdrawn from him on account of
some complaint. He further deposed that he
could not tell when the DNA of the accused
was sent for the report. During his
investigation, he did not take action for
DNA report. He did not remember that
when the incident took place and Abhai
Singh was the local MLA or not. He denied
the suggestion that he is deliberately
expressing ignorance about Abhay Singh
was the MLA. He further deposed that he
had no knowledge whether Santosh Kumar
son of Kamala Prasad was the driver of
MLA Abhay Singh or not. He further stated
that he went to the house of the accused in
the past before the investigation came to
him but how long back, he did not
remember. He stated that it is true that after
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
the incident took place, he had gone to the
house
of
the
accused.
After
the
investigation was taken over from him by
the other Investigating Officer, he went a
couple of times along with the second
Investigating Officer. He did not remember
at this time for how long he remained
posted
in
Thana
Bikapur.
Accused
Mamman was not arrested from the truck.
He
was
arrested
from
Kudemar
intersection. He was in the arrest team. He
could not tell the distance of the place of
arrest from the house of the accused
Mamman. He denied the suggestion that
during those two days' of investigation, he
conducted the investigation improperly. He
also denied the suggestion that for
implicating the accused, he dropped the
accused Santosh Kumar S/o Kamala Prasad
under the pressure of MLA.

(14) Further investigation of the case
was conducted by P.W.7-Uday Raj Yadav.
He, in his examination-in-chief, had
deposed that the in-charge of Police Station
Bikapur is called Kotwal. In other words, it
is Inspector. At the time of taking over the
investigation of the case, he was Station
Officer,
Bikapur. Among
the
former
Investigating Officers, Sripal Singh was the
Inspector and other two Investigating
Officers, SSI Manoj Kumar (P.W.8) and
Munendra Pal Singh (P.W.9), were of SI
rank police officers. Both these police
officers were of his rank and were
equivalent in rank to him. Till the time he
remained posted at the police station, the
DNA test report of this case was not
received
from
the
Forensic
Science
Laboratory. The DNA test report has not
yet been received from the Forensic
Science Laboratory on the record. Letter
No. TSF 27/2013 dated 14.2.2014, sent by
the Forensic Science Laboratory, came to
his notice and after redressing the defects,
the letter was sent again but the DNA
report has not been received yet. If it is
received, it should have been attached with
the record. He stated that the local MLA
was Abhay Singh at the time of the incident
and
there
was
a
Samajwadi
Party
Government. The former Investigating
Officer had called Santosh son of Kamala
Prasad for interrogation and subsequently
released him on finding no evidence
against him. This fact was in his
knowledge. Indra Bahadur Yadav was also
interrogated but he was not arrested. The
body of the deceased was recovered on the
next day after the incident from a
''Gadayee' (small pond) located behind the
house of accused Santosh. He did not know
whether Santosh son Kamala Prasad was
the driver of MLA Abhay Singh or not.
Abhay Singh was the MLA of Samajwadi
Party. He was a member of Samajwadi
Party. He stated that he could not say
anything about the statement of the
informant (P.W.1) wherein he had stated
that under the pressure of the police, the
names of Santosh S/o Kamla Prasad and
Indra Bahadur Yadav were dropped from
this case but he did not find any evidence
against
them.
He
conducted
the
investigation of the case on the basis of
circumstantial
evidence.
He
did
not
interrogate Santosh son of Kamala Prasad
and Indra Bahadur. On the basis of the case
diary compiled by the former Investigating
Officer, he found no evidence in the case
diary against the above two persons. He
further stated that he had no knowledge that
Indra Bahadur Yadav was a dominant
person of that village. He stated that in this
case, earlier the missing report of the
deceased was filed. After that, her dead
body was recovered. He further deposed
that according to his knowledge, the
missing report was registered before the
body was found. He had no knowledge
4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1155
after how many days copy of the FIR was
given to the informant (P.W.1). He recorded
the statement of the informant of this case
Prem Chandra (P.W.1), the mother of the
informant, namely, Mrs. Bachauna (P.W.2)
and the wife of the informant, namely,
Usha (P.W.3). He denied the suggestion that
he had arbitrarily written the statements of
Prem Chandra (P.W.1), the mother of the
informant, namely, Mrs. Bachauna (P.W.2)
and the wife of the informant, namely,
Usha (P.W.3). He was appointed as
Investigating Officer of the case after a
week of the incident but did not remember
the date. He further denied the suggestion
that former three Investigating Officers
were removed from this case under the
public pressure. He stated that due to the
change of offences/sections in the present
case, the investigation of the case was
taken over from the previous Investigating
Officers according to the rules. He further
stated that they were not removed by any
order.

P.W.7 had denied the suggestion
that on the basis of the complaint of the
informant
and
villagers,
the
former
Investigating Officers were removed. He
himself had recorded the statement of the
informant, his mother and his wife.
Accused Mamman had told in his statement
under Section 161 Cr.P.C. that he is doing
job of a Cleaner in a truck. Both the
accused were arrested by the earlier
Investigating Officer. The accused in this
case were in jail during the period when he
did investigation. Their names came to
light on the basis of evidences collected by
the earlier Investigating Officers. The
accused were arrested by the Investigating
Officer Sripal Singh and his team. He did
not remember the date on which the arrest
of accused Santosh Kumar Nat was made.
It was mentioned in the case diary. He did
not know from where the arrest was made.
He did not know about the date of arrest of
accused Santosh Kumar Nat. He had not
met the accused before forwarding the
charge sheet. He did not talk to the accused
about the incident as he had many other
evidences. He denied the suggestion that
there was any demonstration at the police
station due to the proceedings in the
investigation of this case. He had no
knowledge whether the demand for a CBI
inquiry was raised in relation to this
incident or not. He denied the suggestion
that he forwarded the charge-sheet against
the accused to the Court without any
evidence.

(15) Going backward, the autopsy on
the dead-body of ''victim X' was conducted
on 12.09.2014 at 03:50 p.m. by Dr.
Devendra Kishor Sarraf (P.W. 5), who
found on her person ante-mortem injuries,
enumerated hereinafter :--

"Ante-mortem
injuries
of
deceased ''victim X'

(1) Contused swelling over Rt.
eye size 3 x 2.5 cm.

(2) Lacerated wound over Rt.
upper lid size 0.5 x 0.5 cm muscle deep.

(3) Abrasion over Lt. upper lid 3
cm x 2.5 cm.

(4) Contusion present over both
upper & lower lip Ċ lower 1/3rd of nose.

(5) Wall of labia majora is tear at
''6' and ''10' O'clock position.

(6) Contusion present around post
and lateral part of anus & 0.5 cm around
anal opening.

(7) Anal wall Ċ skin tear at 6
O'clock.

(8) Goose skin over hand & feet
present."

The cause of death spelt out in
the autopsy report of the deceased ''victim
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
X' was asphyxia as a result of ante-mortem
smothering.

(16) It is significant to mention that in
his deposition in the trial Court, Dr.
Devendra Kishor Sarraf (P.W. 5) has
reiterated the said cause of death and also
stated therein that on 12.09.2014, he was
posted as Ophthalmologist in Sriram
Hospital, Ayodhya, Faizabad. On that day,
his duty was with his colleagues Dr. AK
Singh and Dr. BM Maurya in P.M. House,
Faizabad. On the same day, the body of
deceased ''victim X' daughter of Prem
Chandra Kori resident of Bhulai-Ka-Purwa,
PS Bikapur, Faizabad, was brought by C.O.
Rajat Singh and C.P. Mahendra Verma of
Kotwali Bikapur, Faizabad at 03:45 p.m.
The dead body was identified by the father
of the deceased Prem Chandra (P.W.1). He
started to conduct the post-mortem of the
dead body of the deceased at 03:50 p.m.
and completed it at 05:00 p.m. Ten forms
were sent with the body. He further
deposed that the age of the deceased was
about 6 years; her height was 112 cms; her
physique was of medium average stature;
stiffness was present in the upper and lower
limbs of the body; eyes and mouth were
half-open; teeth were 12/12; the inner part
of the mouth and the nails had become oily;
and the eye membranes were congested.

Dr. Devendra Kishor Sarraf (P.W.
5), in his examination-in-chief, had further
deposed that on internal examination, he
found that skull was normal; brain
membrane was congested; the brain was
congested; the teeth were 12/12, larynx and
vocal cords were normal, trachea & hyoid
bone were normal; ribs in chest, breathing
tube were normal; both lungs were
congested; the membrane around the heart
was congested; the right corner of the heart
was full and the left was empty; the large
blood vessel was normal; abdominal hair
was normal; 150 ml pasty material was
present in the stomach; pasty material and
gases were present in the small intestine;
faecal matter and gas were present in the
large intestine; liver was congested and
gallbladder was empty; pancreas was
congested; both kidneys were congested;
and the bladder was empty. He had deposed
that the expected time of death was
approximately one day and the cause of
death was suffocation due to smothering.

In cross-examination, P.W.5 Dr.
Devendra Kishor Sarraf had deposed that
he had no knowledge with regard to test
results sent in envelops 1 to 6 at the time of
post-mortem. He opined that there can be a
difference of 3 to 6 hours pertaining to the
time of the death of the deceased. After the
autopsy, he handed over the body to the
police. He denied the suggestion that he
had made any carelessness during the
course of post-mortem.

(17) At this juncture, it would be
relevant to mention here that the recovered
items, samples of the deceased as well as
blood samples of the accused were sent for
DNA
Test
to
the
Forensic
Science
Laboratory, Mahanagar, Lucknow. Vide
report dated 21.08.2019, Forensic Science
Laboratory,
Mahanagar,
Lucknow has
reported as under :-

Mh-,u-,- fjiksVZ esa vfHk;qDrx.kks ds
jDr uequks dks %&

izn'kZ&1 1⁄4 vfHk;qDr larks"k dqekj dk1⁄2

izn'kZ&2 1⁄4 vfHk;qDr eEeu mQZ
rstiky uV dk1⁄2

ds :i n'kkZ;k x;k gSA

ihfMrk@e`rdk ls izkIr oLrqvks ,o
LokWc dks fuEu izdkj ls n'kkZ;k x;k gS%&

izn'kZ&3 nhokj dh [kqjph feV~VhA

izn'kZ&4 [kqyh txg dh feV~VhA

izn'kZ&5 dejs ds vUnj dh feV~VhA
4 All. State of U.P. Vs. Santosh Kumar Nat & Anr.
1157

izn'kZ&6 CkkYk

izn'kZ&7 VqdMk diMkA

izn'kZ&8 QzkdA

izn'kZ&9 iStkehA

izn'kZ&10 dPNhA

izn'kZ&11 oStkbuy LykbM lokWcA

izn'kZ&12 ;wjsFkzy LykbM LokWcA

izn'kZ&13 isfjfu;y LykkbM LokWcA

izn'kZ&14 cDdy LykbM LokWcA

izn'kZ&15 usYk dfVaxA

izn'kZ&16 ,uYk LykkbM LokWCkA

" पऱीक्षण पऱीणाम

प्राि प्रदशी 1⁄411⁄2 से 1⁄4161⁄2 का ड़ी-
एन- ए- पऱीक्षण सकया गया ।

स्रोत प्रदशा 1⁄4121⁄2] 1⁄4131⁄2 व 1⁄4161⁄2
1⁄4मृतका से1⁄2 पर उपण्डस्र्थत

बायोलोसजकल द्रव्य के स्रोत व स्रोत प्रदशा
1⁄411⁄2 1⁄4संतोष कुमार से1⁄2 में समानता पाय़ी गय़ी
परन्तु स्रोत प्रदशा 1⁄421⁄2 1⁄4eEeu उफा तेजपाल
से1⁄2 ugh पाय़ी गय़ी। (HID & Y-STR KIT)

स्रोत प्रदशा 1⁄4111⁄2 1⁄4मृतका से1⁄2 में
पुरुष सवसशष्ट एल़ील क़ी उपण्डस्र्थसत

पाय़ी गय़ी परन्तु आंसशक ड़ी-एन-ए-
प्रोफाइल जेनरेि हुआ।

प्रदशा 1⁄431⁄2 से 1⁄461⁄2 से ड़ी-एन-ए-
सनष्कषाण न िो सका।

प्रदशा 1⁄471⁄2 से 1⁄4101⁄2] व 1⁄4151⁄2 में
आंसशक ड़ी- एन- ए- प्रोफाइल जेनरेि हुआA

स्रोत प्रदशा 1⁄4141⁄2 1⁄4मृतका से1⁄2 स्त्ऱी
मूल का पाया गया ।

ड़ी-एन-ए-
पऱीक्षण
में
जेनेसिक
एनालाइजर व ज़ीन मेपर सॉफ्टवेयर का प्रयोग
सकया गया।

उक्त पररक्षण में मानक सवसधयों
प्रयोग में लाय़ी गय़ी।"

(18) The medical examination of
convicts/appellants Santosh Kumar and
Mamman alias Tejpal were conducted on
18.09.2014 at 12:15 p.m. and 12:05 p.m.,
respectively, at Community Health Centre,
Bikapur, Faizabad by Dr. Satish Chandra,
who found the following injuries on their
person :-

"Injury of Santosh Kumar, s/o
Ram Kumar

A black mole over right side of
face about 2.5 c.m. below from the lower

lid."

Injury of Mamman alias Tejpal,
s/o Late Hari Ram

A black mole over right side of
face about 5.5 cm below from the lateral

of the Rt. eye."

(19) It is pertinent to mention that Dr.
Satish
Chandra
was
not
examined.
However, he stated in the injury report that
there is no injury.

(20) The case was committed to the
Court of Sessions in usual manner where
the convicts/appellants were charged for
the offence punishable under Sections
376A, 376D, 377, 302, 201 I.P.C. and
Section 3/4 of the Protection of Children
from Sexual Offences Act, 2012. They
pleaded not guilty to the charges and
claimed to be tried. Their defence was of
denial.

(21) During the trial, in all, the
prosecution examined 9 witnesses viz.
P.W.1-Prem Chandra, who is the father of
the deceased and informant of this case,
P.W.2-Smt. Bachauna, who is the grandmother of the deceased, P.W.3-Smt. Usha,
who is the mother of the deceased, P.W.4Sri Awadhesh Kumar, in whose presence
''panchayatnama' was conducted, P.W.5-Dr.
Devendra Kishor Sarraf, who conducted
the post-mortem of the deceased, P.W.6-CP
Sri Rajesh Kumar Pal, who had lodged the
chik F.I.R. on the basis of written report of
informant P.W.1-Prem Chandra and P.W.7-
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
Uday Raj Yadav, P.W.8-Sri Manoj Kumar
and P.W.9-Sri Munendra Pal Singh, who
were the Investigating Officers of the case.
From the side of appellants/convicts, Sri
Saeed Husain was examined as D.W.1.

(22) P.W.1-Prem Chandra, in his
examination-in-chief, had deposed that he
had one daughter and three sons, out of
whom his daughter had died in the
incident. The incident is of 11.09.14. His
daughter ''victim X', aged about 6 years,
went from home at 6 o'clock in the
evening for urinal after informing his
wife Usha (P.W.3) but his daughter did
not return. He searched his daughter in
the village but could not find her. On the
same day, he went to the police station
Bikapur for giving information to the
police about the incident. After getting
scribed the report (5A) of the incident
from a man in the village itself and
putting his signature thereon, he gave that
to the police station. He proved the
written report (Ext. Ka.1). He further
stated that on the next day of the incident,
his mother and wife told him that on the
day of the incident, his mother was sitting
in front of Raja Pradhan's house and saw
that
''X'
(deceased)
was
going
to
Santosh's house with some items. The
name of Santosh's father is Ram Kumar
Nat. In the house of Santosh (appellant
no.1), Indra Kumar Yadav, Mamman alias
Sonu (appellant no.2) and Santosh Kumar
(appellant no.1) were sitting and drinking
alcohol. On the second day, around 9-10
a.m., the dead body of ''X' was found in
the ''Gadayee' (small pond) next to the
house of Santosh Nat (appellant no.1). He
had full belief that Santosh Nat (appellant
no.1), Mamman alias Sonu (appellant
no.2) and Indra Bahadur Yadav sexually
assaulted his daughter ''victim X' under
intoxication, thereafter, killed her and
thrown her body in a ''gadayee' (small
pond). The Inspector came to the spot.

P.W.1-Prem
Chandra,
in
his
cross-examination, had deposed that he did
not go to work on the day of the incident.
He worked in brick slurry. He also go
outside the village to work. He goes to
work for a distance of 10-15 kms. On the
day of the incident, he was at home. He
went to the farm for about two hours. He
went to the farm at around 2.30 p.m. and
came back in about two hours. He came to
know about the missing of his girl around
6:30 p.m. His wife and his mother told him.
On getting information, first he searched
around the village along with family
members. He searched whole night in the
village but no trace was found. Even
outside the village, about 10 km distance
trace was made with the help of family
members. She was found around 9:30 a.m.
and till then they were still searching. For
lodging the report of the incident, he had
gone to the Village Pradhan's house at
around 8.30 a.m., where the Village
Pradhan had telephoned the police station.
Then, around 09:00 p.m., the police had
come to village. The policemen were also
co-operating in the search in the night. He
further deposed that he did not go to the
police station to lodge the report. The
report was written in the village itself by
the Inspector, whose name is not known.
The report was written in front of the house
of Santosh Kumar.

P.W.1 Prem Chandra was shown
the said report (Ext. Ka.1), then, he stated
that this report was not written in front of
the house of Santosh. However, his
signature was on Exhibit Ka-1.