# State of U.P v. Sarvan

- **Citation:** (2022) 9 ILRA 1075
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-06
- **Case number:** Capital Case No. 3 of 2017
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-sarvan-48965
- **Pages:** 43

## Headnote

(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 313, 354(3),
366(1), 374(2) & 415 - Indian Penal
Code, 1860 -Sections 201, 302, 304 &
323 - Evidence Act, 1872 - Section -
134, - Allahabad High Court Rules,
1952 - Rule 45 of Chapter XVIII -
Conviction
and
Sentenced
-
Capital
sentence - reference and criminal appeals -
offence of Murdered of six persons inflicting
injuries using an axe - Defence of plea of
retaliation - Appreciation of evidence -
allegation that convicted appellant on the
account of illicit relationship with his
Bhabhi, accused murdered his wife and
three minor children as well as informant's
wife and one minor child and also assaulted
informant's daughter - contradictory stand
was taken by the Defence witnesses - as
well
as
convict/appellant
admitted/supported the testimonies of PW2
under section 313 - testimony of defence
witness not reliable - plea not acceptable.
(Para 46, 53, 55)
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Criminal Procedure
Code, 1973
- Sections 313, 354(3),
366(1), 374(2) & 415 - Indian Penal
Code, 1860 -Sections 201, 302, 304 & 323
- Evidence Act,1872 - Section - 134, -
Allahabad High Court Rules, 1952 - Rule
45 of Chapter XVIII - Conviction and
Sentenced - Capital sentence - reference and
two criminal appeals from accused & co-accused
- offence of Murdered of six persons by using an
axe - Appreciation of evidence - Examination of
prosecution witnesses - FIR lodges promptly, -
illicit relationship with his Bhabhi (co-accused) &
quarrels with his wife proves motive - recovery
of weapon 'axe' was recovered on the pointing
out of accused & co-accused, at that time blood
was found on axe, - inquest report, site plan
and arrest on same day was also proved -
medical evidence showed that all the deceased
were done to death on same day & time and
injuries found on the body of deceased persons
could be caused with recovered weapon 'axe' -
further, no contradiction in testimonies of Eyewitnesses - merely because injured witness &
eye-witnesses
are
related
witnesses
their
testimonies could not be rejected unless any
material, - prosecution proved that the accused
in a pre-meditated manner armed with 'axe'
caused death of six person and assault to one
person by inflicting fatal injuries - conviction
proper. (Para 63, 67, 74, 75, 76)

(C) Criminal Law - Criminal Procedure
Code, Section - 313, 354(3), 366(1),
374(2), 415 - Indian Penal Code, Section
- 201, 302, 304, 323 - Evidence Act,
Section - 134, - Allahabad High Court
Rules, 1952 - Rule 45 of Chapter XVIII -
Conviction and Sentenced - Death Penalty -
reference for confirmation - offence of murdered
was
committed
when
convict
has
illicit
relationship with his Bhabhi - for quench his
thirst he murdered his wife & three minor
children including his neighbour/informant's wife
& minor child in most brutal, grotesque,
diabolical and dastardly manner - the magnitude
of crime places the present incident in the
category of anti-social or socially abhorrent
nature of crime which calls for an exemplary
punishment
-
balancing
mitigating
and
aggravating circumstances high court finds that
instant case can be said to in the category of
'rarest of rare' case and hence death penalty is
liable to be confirmed. (Para 95, 96, 97)

(D) Criminal Law - Criminal Procedure
Code, Section - 313, 354(3), 366(1),
374(2), 415 - Indian Penal Code, Section
- 201, 302, 304, 323 - Evidence Act,
Section - 134, - Allahabad High Court
Rules, 1952 - Rule 45 of Chapter XVIII -
Conviction and Sentenced - Death Penalty -
reference for confirmation - execution of
sentence - until the disposal of the appeal as
provided under section 415 Cr.P.C. the execution
of sentence is postponed - punishment shall be
executed in accordance with law laid down by
the Hon'ble Apex Court time and again.

Capital Case is allowed & both the
Criminal Appeals are dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,821 of 147,294. This is a partial read: ask again with offset=39821 for what follows._

9 All. State of U.P. Vs. Sarvan
1075
of U.P. Act No.24 of 2006. Establishing an
institution and administering it are two
different happenings. If a society or a Trust
did not comprise of members of any
Minority Community (either linguistic or
religious) at the time when it established an
educational institution and subsequently
attains the status of a minority and starts
administering such an institution, in our
considered opinion, in such a situation the
educational
institution
concerned
will
neither be a Minority Institution within U.P.
Act No.24 of 2006, nor shall it be Minority
Educational Institution within Act, 2004.

38. For the reasons given and
discussion made above, we do not find any
illegality in the decision of the State
Government not to treat the petitioner no.2
as Minority Institution so as to exclude it
from the purview of U.P. Act No.24 of
2006 and accordingly we also do not see
any
illegality
in
the
orders
dated
05.10.2010 and 07.10.2010 whereby the
Director General Medical Education and
Training had sought the proposal from the
petitioner no.2 for the purposes of fixation
of fee to be charged from the students
pursuing their MBBS and BDS Courses for
the academic year 2020-21. For these
reasons, we also do not find any illegality
in the impugned order dated 06.11.2020
passed by the State Government in the
Department of Medical Education whereby
fee to be charged from its students was
fixed.

39. For all the reasons given above,
we
are
unable
to
agree
with
the
submissions made by the learned counsel
for the petitioners. Accordingly, we find
that the instant writ petition lacks merit.

40. Resultantly, the writ petition is
hereby dismissed.

41. There will be no order as to costs.
----------
(2022) 9 ILRA 1075
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2022

BEFORE

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

Capital Case No. 3 of 2017
Along with
Criminal Appeal No. 1540 of 2017 with 1552 of
2017

State of U.P. ...Appellant
Versus
Sarvan ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondent:
Manjusha Kapil

(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 313, 354(3),
366(1), 374(2) & 415 - Indian Penal
Code, 1860 -Sections 201, 302, 304 &
323 - Evidence Act, 1872 - Section -
134, - Allahabad High Court Rules,
1952 - Rule 45 of Chapter XVIII -
Conviction
and
Sentenced
-
Capital
sentence - reference and criminal appeals -
offence of Murdered of six persons inflicting
injuries using an axe - Defence of plea of
retaliation - Appreciation of evidence -
allegation that convicted appellant on the
account of illicit relationship with his
Bhabhi, accused murdered his wife and
three minor children as well as informant's
wife and one minor child and also assaulted
informant's daughter - contradictory stand
was taken by the Defence witnesses - as
well
as
convict/appellant
admitted/supported the testimonies of PW2
under section 313 - testimony of defence
witness not reliable - plea not acceptable.
(Para 46, 53, 55)
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - Criminal Procedure
Code, 1973
- Sections 313, 354(3),
366(1), 374(2) & 415 - Indian Penal
Code, 1860 -Sections 201, 302, 304 & 323
- Evidence Act,1872 - Section - 134, -
Allahabad High Court Rules, 1952 - Rule
45 of Chapter XVIII - Conviction and
Sentenced - Capital sentence - reference and
two criminal appeals from accused & co-accused
- offence of Murdered of six persons by using an
axe - Appreciation of evidence - Examination of
prosecution witnesses - FIR lodges promptly, -
illicit relationship with his Bhabhi (co-accused) &
quarrels with his wife proves motive - recovery
of weapon 'axe' was recovered on the pointing
out of accused & co-accused, at that time blood
was found on axe, - inquest report, site plan
and arrest on same day was also proved -
medical evidence showed that all the deceased
were done to death on same day & time and
injuries found on the body of deceased persons
could be caused with recovered weapon 'axe' -
further, no contradiction in testimonies of Eyewitnesses - merely because injured witness &
eye-witnesses
are
related
witnesses
their
testimonies could not be rejected unless any
material, - prosecution proved that the accused
in a pre-meditated manner armed with 'axe'
caused death of six person and assault to one
person by inflicting fatal injuries - conviction
proper. (Para 63, 67, 74, 75, 76)

(C) Criminal Law - Criminal Procedure
Code, Section - 313, 354(3), 366(1),
374(2), 415 - Indian Penal Code, Section
- 201, 302, 304, 323 - Evidence Act,
Section - 134, - Allahabad High Court
Rules, 1952 - Rule 45 of Chapter XVIII -
Conviction and Sentenced - Death Penalty -
reference for confirmation - offence of murdered
was
committed
when
convict
has
illicit
relationship with his Bhabhi - for quench his
thirst he murdered his wife & three minor
children including his neighbour/informant's wife
& minor child in most brutal, grotesque,
diabolical and dastardly manner - the magnitude
of crime places the present incident in the
category of anti-social or socially abhorrent
nature of crime which calls for an exemplary
punishment
-
balancing
mitigating
and
aggravating circumstances high court finds that
instant case can be said to in the category of
'rarest of rare' case and hence death penalty is
liable to be confirmed. (Para 95, 96, 97)

(D) Criminal Law - Criminal Procedure
Code, Section - 313, 354(3), 366(1),
374(2), 415 - Indian Penal Code, Section
- 201, 302, 304, 323 - Evidence Act,
Section - 134, - Allahabad High Court
Rules, 1952 - Rule 45 of Chapter XVIII -
Conviction and Sentenced - Death Penalty -
reference for confirmation - execution of
sentence - until the disposal of the appeal as
provided under section 415 Cr.P.C. the execution
of sentence is postponed - punishment shall be
executed in accordance with law laid down by
the Hon'ble Apex Court time and again.

Capital Case is allowed & both the
Criminal Appeals are dismissed. (E-11)

List of Cases cited:

1. Bachan Singh Vs St. of Punj., AIR 1980 SC
898,

2. Bipin Kumar Mondal Vs St. of W.B., (2010)
12 SCC 91,

3. Abdul Sayeed Vs St. of M.P., (2010) 10 SCC
259,

4. Namdeo Vs St. of Mah. : (2007) 14 SCC 150
: (2009) 1 SCC (Cri) 773,

5. Gulam Sarbar Vs St. of Bihar : (2014) 3 SCC 401,

6. Furman Vs Georgia, (1972) SCC On-Line US
SC 171,

7. Machhi Singh Vs St. of Punj., (1983) 3 SCC
470,

8. Haresh Mohandas Rajput Vs St. of Mah. :
(2011) 12 SCC 56,

9. Ramnaresh& ors. Vs St. of Chhattisgarh,
(2012) 4 SCC 257,

10. Dharam Deo Yadav Vs St. of UP, (2014) 5
SCC 509,

11. Kalu Khan Vs St. of Raj., (2015) 16 SCC 492,
9 All. State of U.P. Vs. Sarvan
1077
(Delivered by Hon'ble Ramesh Sinha, J.)

(A) INTRODUCTION

1. Two accused, namely, Sarvan
and Smt. Suman, were tried by the
Special
Judge,
C.B.I.
Court
No.2/Additional
Sessions
Judge,
Lucknow in Sessions Trial No 754 of
2009 : State Vs. Sarvan and another,
arising out of Case Crime No. 265 of
2009, under Sections 302, 201 of the
Indian Penal Code, 1860 (in short,
referred hereinafter as ''I.P.C.'), Police
Station Mohanlalganj, District Lucknow.

2. Vide judgment and order dated
29.08.2017, the Special Judge, C.B.I.
Court No.2/Additional Sessions Judge,
Lucknow,
convicted
and
sentenced
accused, Sarvan and Smt. Suman, in the
manner as stated hereinbelow :-

"Accused Sarvan

I. Under Section 323 I.P.C. to
undergo
one
year's
rigorous
imprisonment;

II. Under Section 201 I.P.C. to
undergo four years' R.I. and a fine of
Rs.2000/-. In default of payment of fine
to
undergo
additional
one
month's
imprisonment; and

III. Under section 302 I.P.C. to
be hanged to death till he is dead and fine
of Rs.5000/-. In default of payment of
fine to undergo additional five months'
imprisonment.

Accused Smt. Suman

I. Under section 201 I.P.C. to
undergo
four
years'
rigorous
imprisonment and a fine of Rs.2000/-. In
default of payment of fine to undergo
additional one month's imprisonment.

All the sentences were directed
to run concurrently and the period of
incarceration was directed to be set off
against the sentence of imprisonment.

3 . Aggrieved with their aforesaid
conviction and sentences, accused Smt.
Suman has preferred Criminal Appeal No.
1540 of 2017 : Smt. Suman vs. State,
whereas
accused
Sarvan
preferred
Criminal Appeal No. 1552 of 2017 :
Sarvan Vs. State.

4. Capital Case No. 3 of 2017 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 convict/appellant Sarvan.

5. Since the above-captioned capital
sentence reference and criminal appeals
arise out of a common factual matrix and
impugned judgment dated 29.08.2017, this
Court proceeds to decide the same by the
common judgment.

(B)

CASE
OF
THE
PROSECUTION

6. The informant Kolai (P.W.1) was
resident of Village Gaura, Police Station
Mohanlalganj, District Lucknow. In front
of his house, the house of Sarvan
(convict/appellant) was situated. It has been
alleged by the informant Kolai (P.W.1) that
a gossip/talk spread throughout the village
that Sarvan (convict/appellant) had an illicit
relationship with his bhabhi (sister-in-law)
Suman, on account of which, there was a
lot
of
quarrel
between
Sarvan
(convict/appellant) and his wife Smt.
Santoshi (deceased). Often this quarrel
escalated and Sarvan (convict/ appellant)
would beat his wife (deceased Santoshi).
Smt. Madhuri (informant's wife) would
usually intervene in such situation to
protect Santoshi (deceased), because of
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
which, Sarvan (convict/appellant) remained
angry with Smt. Madhuri (informant's
wife).

In the morning of 25.04.2009, at
06:30 a.m., altercation took place between
Sarvan (convict/appellant) and his wife
(deceased Santoshi). After that a sound of
shouting
came
from
Sarvan's
(convict/appellant) house. Sarvan (convict/
appellant), while yelling inside his house, told
his wife Santoshi (deceased) that ''EkS vkt rq>s
o rsjs cPpks dks ftUnk ugh NksMqxkk'' (today he
would not leave her and her children alive)
and the wife of Sarvan (deceased Santoshi)
was screaming to save her. On hearing the
screams, Smt. Madhuri (informant's wife) ran
to save her (deceased-Santoshi). At that
moment, Sarvan (convict/appellant) armed
with blood stained ''axe' came out of his
house saying to Smt. Madhuri (wife of the
informant) that "lUrks"kh o rhuks cPpks dks vkt
fBdkus yxk fn;k gS rq cgqr chp cpko djrh gS" (he
had put Santoshi and three children in their
place and you intervene a lot). Saying this,
Sarvan (convict/appellant) assaulted Madhuri
(informant's wife) with the same ''axe' many
times, as a consequence of which, Madhuri
(informant's wife), while sustaining injuries,
fell down on the khadanja (dirt road) and
succumbed to her injuries on the spot. When
Rajendra (informant's son) and Sangeeta
(informant's daughter) ran to save their
mother Madhuri (deceased), Sarvan (convict/
appellant) also assaulted and injured them.

7. Thereafter, informant Kolai
(P.W.1) got the FIR scribed by one
person,
namely,
Sewak,
who
after
scribing read it over to him. He,
thereafter, affixed his thumb impression
on it and then proceeded to Police Station
Mohanlalganj, where he lodged it.

8. The evidence of S.I. Anand
Kumar Pandey (P.W. 8) shows that on the
date of the incident i.e. on 25.04.2009, he
was posted as Head Moharrir at Police
Station Mohanlalganj. On the said date, at
07:30 a.m., informant Kolai (P.W.1)
came to the police station Mohanlalganj
and filed written report (Ext. Ka.1), on
the basis of which, he prepared the chik
FIR (Ext. Ka.9) and on the basis of which
F.I.R. was registered against the accused.

In cross-examination, P.W.8 S.I.
Anand Kumar Pandey had deposed before
the trial Court that informant Kolai
(P.W.1) and injured Sangeeta came to the
police
station
Mohanlalganj
with
a
written report. The informant Kolai
(P.W.1) had handed over the written
report to him on 25.04.2009 at 07:30 a.m.
and at that time, S.H.O. Ashok Kumar
Shukla was present at the police station.
On the basis of the written report, the
F.I.R. was registered by him. He further
deposed that he prepared Chithi Mazroobi
(letter for medical examination) for
medical examination of injured Sangeeta.
Except injured Sangeeta, no other injured
or villager came along with informant
Kolai (P.W.1) at the police station nor
were brought for medical examination. At
that time, Sangeeta (injured) was aged
about 18 years. He further deposed that
immediately after lodging the F.I.R.,
S.H.O. along with police personnel went
to the place of occurrence at about 07:30
a.m. He denied that he gave false
evidence under pressure. He also denied
that informant (P.W.1) did not come
along with scribed written report but it
was written at police station.

9. A perusal of the chik FIR (Ext.
Ka.9) shows that the distance between the
place of incident and Police Station
Mohanlalganj was three kilometers. It is
significant to mention that a perusal of the
chik FIR also shows that on its basis, a case
9 All. State of U.P. Vs. Sarvan
1079
under Section 302 I.P.C. was registered
against Sarvan (convict/ appellant).

10. It is pertinent to mention here that
the investigation of the instant case was
conducted by In-charge Inspector Shri
Ashok Kumar Shukla but he was not
examined by the prosecution as he died on
29.05.2014 during pendency of the trial. In
order to prove the death of the Investigating
Officer Shri Ashok Kumar Shukla, C.W.1Constable CP 840 Sri Satish Kumar
Kushwaha was examined, whose evidence
shows that since 2013, he was posted as
Constable at police station Mohanlalganj.
He stated that S.I. Shri Ashok Kumar
Shukla had conducted the investigation of
the instant case and he (C.W.1) himself
went as special messenger to serve
summon notice to S.I. Shri Ashok Kumar
Shukla. He had also filed the report in the
Court wherein it was mentioned that S.I.
Ashok Kumar Shukla died on 29.05.2014.
He proved the said report (Ext. Ka. 16)

11. The evidence of P.W.12-S.I. Ram
Vishal Suman shows that on 25.04.2009, he
was posted as Sub-Inspector at Police
Station Mohanlalganj. On the said date, he
was accompanied with In-Charge Inspector
Shri Ashok Kumar Shukla and on his
direction, he went to village Gaura and
prepared the ''panchayatnama' of the dead
bodies of Smt. Santoshi, w/o Sarvan aged
35 years (Ext. Ka.17), Ramroop s/o Sarvan
aged 6 years (Ext. Ka. 18), Sumiran d/o
Sarvan aged 4 years (Ext. Ka.19), Ravi son
of Sarvan aged 11⁄2 years (Ext. Ka.20)
under his handwriting, upon which there
was signature of the Investigating Officer
Ashok Kumar Shukla. On the said date
also, on the direction of Investigating
Officer, ''panchayatnama' of the dead body
of deceased Madhuri (informant's wife)
(Ext.
Ka.20)
was
prepared
by
S.I.
Dhrampal Singh (P.W.13), upon which
there was signature of the Investigating
Officer Shri Ashok Kumar Shukla. He
further deposed that Dharmpal Singh
(P.W.13) was posted along with him at
police station Mohanlalganj, therefore, he
knew his signature and handwriting.

P.W.12 had further deposed that
in his presence, dead-bodies of the
deceased were sealed and sent for postmortem. He proved the signature of the
Investigating Officer Ashok Kumar Shukla
on Police Form No.13 (deceased Ravi,
Ramroop, Madhuri, Sumiran, Santoshi) as
Ext. Ka. 22 to Ext. Ka. 26. He also proved
the photo lash (Paper nos. A14/1 to A14/5)
prepared by the Investigating Officer Shri
Ashok Kumar Shukla. He also proved the
specimen seal of the dead bodies of the
deceased (Paper Nos. A15/1, A15/2, A15/3,
A15/5 and A15/6) prepared by the
Investigating Officer Shri Ashok Kumar
Shukla as Ext. Ka. 27 to Ext. Ka.31. He
also proved the recovery memos (Ext. Ka.
32 to Ext. Ka.36) of blood stained soil and
plain soil collected from the different
places by S.I. Shri Dharmpal Singh
(P.W.13), upon which there was signature
of Shri Ashok Kumar Shukla.

In cross-examination, P.W.12 had
deposed
that
proceedings
of
''panchayatnama' were conducted in his
presence and at that time, he, Investigating
Officer Shri Ashok Kumar Shukla, Shri
Dharm Pal Singh, S.S.I. Shri P.K. Khare,
other police personnel and villagers were
present. He deposed that he prepared the
''panchayatnama' in his own handwriting
on the direction and dictation of the
Investigating Officer. He denied that he
gave false evidence.

12. The evidence of P.W.13-S.I. Shri
Dharam
Pal
Singh
shows
that
on
24.04.2009, he was posted as Sub-Inspector
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
at police station Mohanlalganj. On the said
date,
he
was
accompanied
with
Investigating Officer Shri Ashok Kumar
Shukla. On 26.04.2009, the ''axe' used in
commission of crime was recovered in his
presence on the pointing out of accused
Sarvan and the recovery memo of it was
prepared by him on the dictation of the
Investigating Officer Shri Ashok Kumar
Shukla.
On
the
same
date,
Suman
(convict/appellant no.1) was arrested from
her house. He proved the recovery memo
of ''axe' as well as arrest of Suman
(convict/appellant no.1) as Ext. Ka. 39. The
site plan of the recovery of ''axe' (Ext.
Ka.40) was prepared by the Investigating
Officer
under
his
handwriting
and
signature. He also proved the site plan of
the place of the occurrence (Ext. Ka.41)
prepared by the Investigating Officer. He
prepared the charge-sheet (Ext. Ka.42) on
the dictation of the Investigating Officer
under his handwriting and signature.

13. The evidence of P.W.10-Sri
Balkrishna Singh shows that he was doing
the work of agriculture. He was living in
the village where the incident occurred.
The ''panchayatnama' of the dead-bodies of
children of Sarvan, namely, Ravi, aged
about 11⁄2 years, Sumiran aged 4 years,
Ramroop aged 5 years and his wife
Santoshi aged 35 years were conducted at
the house of Sarvan in his presence,
whereas ''panchayatnama' of the dead-body
of Madhuri wife of Kolai aged 50 years
was conducted on khadanja (dirt road)
outside the house of Sarvan. The injuries of
''axe' were on the bodies of the deceased.
He
proved
his
signature
on
''panchayatnama'. The dead-bodies were
sent for post-mortem. The proceeding for
''panchayatnama' started at 09:00 a.m. on
25.04.2009 and it continued for about 1-11⁄2
hours. On the said date also, the Inspector
had collected blood stained soil and plain
soil in containers from both the places i.e.
from the place where the dead-body of
Madhuri was lying and from the courtyard
of the house of Sarvan where the deadbodies were lying, under recovery memo.
On seeing the recovery memos, he proved
his signature thereon.

In cross-examination, P.W.10 had
deposed that his house was at a distance of
300-400 meters from the house of Sarvan.
On the date of the incident, he was present
in his house. He knew Sarvan from
childhood, who was doing the work of
Labour. He did not know whether on the
date of the incident, Sarvan had gone for
work or not nor he knew whether
psychiatric treatment of Sarvan was going
on somewhere or not. He did not know
whether any quarrel of Sarvan took place
with his neighbour Kolai. He stated that on
the date of ''panchayatnama' , he was
present at the place of the incident. Apart
from him, the signature of Pramod,
Sambhoo, Banwari Ghasitey etc. were also
taken in the ''panchayatnama'. He could
not say whose ''panchayatnama' was done
at hospital nor he could tell the reason for
the incident. The signature of none of the
family members of Kolai (P.W.1) was
taken on the ''panchayatnama' in his
presence nor Kolai (P.W.1) and his family
members were interrogated in his presence.
The sons and daughters of Kolai were
present at the place of occurrence. He
denied
the
suggestion
that
incident
occurred in his presence and also after
preparation of ''panchayatnama', it was not
read over to him and only his signature was
taken thereon.

14. The injury of injured Sangeeta
was examined on 25.04.2009 at 02:20 p.m.
in
Community
Health
Centre,
Mohanlalganj, Lucknow by Dr. Shailendra
9 All. State of U.P. Vs. Sarvan
1081
Kumar Dwivedi (P.W.4), who found on her
person the following injuries :-

"Injury of injured Sangeeta,
daughter of Kolai, aged about 16 years

L.W. 1.5 cm x 0.25 cm x skin
deep. Left side of Arm, ant. aspect, 1.5 cm
above left elbow joint. Clotted blood seen."

15. P.W.4-Dr. Shailendra Kumar
Dwivedi, in his examination-in-chief, had
reiterated the aforesaid injury and had
deposed that on 25.04.2009, he was posted
as Medical Officer at Community Health
Centre, Mohanalalganj, Lucknow. On the
said date, at 02.20 p.m., he examined the
injury of injured Km. Sangeeta aged 16
years, who was brought by Woman
Constable No. 2997 Anita Kashyap and
Constable 2926 Rajesh Kumar Shukla of
police station Mohanlalganj, Lucknow. He
further deposed that after examining the
injured Km. Sangeeta, he found that the
injury was simple in nature; it could be
caused by blunt and hard object; and it was
half day's old. He stated that the injury on
her person could be attributable from the
back of the ''axe' on 25.04.2009 at 06:30
a.m.

In cross-examination, P.W.4 had
deposed that the medical examination of
injured Km. Sangeeta was conducted on
25.04.2009 at 02:20 p.m. The injury
occurred on her person could be 12-14
hours old and it could be attributable to
falling on hard object but it was not from a
sharp edged weapon. He further deposed
that injury could be caused by falling upon
kharanja (dirt road) and it could also be
caused by lathi, danda but it could not be a
self-inflicted injury.

16. The post-mortem examination of
the dead-bodies of the deceased Ramroop,
Smt. Santoshi and Ravi were conducted on
25.04.2009 at 08:30 p.m., 08:00 p.m and
09:30 p.m., respectively, at T.B. Hospital,
Thakurganj, Lucknow by Dr. G.P. Tiwari
(P.W.6), who found the ante-mortem
injuries on their persons as enumerated
hereinafter :-

"(I) Ante-mortem injuries of
Ramroop, son of Sarvan, aged about 6
years

1. Abraded contusion 6 x 5 cm on
Rt. side of face just below Rt. eye.;

2. Abrasion 3 x 1 cm on Rt. side
of forehead 1 cm above Rt. eyebrow;

3. Incised wound 5 x 3 cm muscle
deep on the side of neck 3 cm below Rt.
ear, margins clear cut, sharp, well defined
on opening echymosis present under neath
all above injuries, soft tissues & large
blood vessels, carotid Rt. cut.

(II) Ante-mortem injuries of
Santoshi, wife of Sarvan, aged about 35
years

1. Abraded contusion 8 x 6 cm on
Rt. side of face 1 cm below Rt. eye;

2. Incised wound 8 x 3 cm muscle
deep on top of Rt. shoulder;

3. Incised wound 3 x 1 cm,
muscle deep present on front of neck 2 cm
above top of sternum;

4. Incised wound 4 x 2 cm,
muscle deep present on front of neck 2 cm
above injury no.3;

5. Incised wound 7 x 3 cm,
muscle deep on front of neck 2 cm above
injury no.4.

6. Incised wound 3 x 2 cm on top
of Lt. shoulder.

All above injuries contain clear
cut & well defined margin on opening
echymosis
present
underneath
above
injuries. Soft tissues & large blood vessels
larynx, trachea are cut.

(III) Ante-mortem injuries of
Ravi son of Sarvan aged about 11⁄2 years
1082 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Incised wound 3 x 1 cm muscle
deep on back of neck 2 cm below occipital;

2. I.W. 1 x 1 cm on mid of chest;

3. Abraded contusions 6 x 4 cm
on forehead 2 cm above root of nose.
Margins are clean, sharp, well defined. On
opening echymosis present underneath soft
tissues & blood vessels clear cut.

The cause of death spelt out in
the
autopsy
report of
the deceased
Ramroop, Santoshi and Ravi was due to
shock and haemorrhage as a result of antemortem injuries.

17. It is significant to mention that
P.W.6-Dr. G.P. Tiwari, in his examinationin-chief, had reiterated the aforesaid cause
of death of deceased Ramroop, Santoshi
and Ravi and had deposed that on
25.04.2009, he was posted as Medical
Officer in T.B. Hospital, Thakurganj,
Lucknow. On the said date, he was
nominated by the District Magistrate to
conduct
post-mortem
examination
in
artificial light, of the dead-bodies of
deceased Ramroop, Santoshi and Ravi,
which were brought in a sealed condition
by Constable 130 Mohd. Shamim and
Constable 129 Brij Kishore Patel of police
station Mohanlalganj, Lucknow. He further
deposed that on external examination of the
dead-body of deceased Ramroop son of
Sarvan, he found that deceased Ramroop
was aged about six years; his physique was
normal; rigor mortis on his both the hands
and legs were present; his both eyes were
closed; and his mouth was half opened. On
internal examination of deceased Ramroop,
he found that his brain and membranes
were pale; his spinal cord, ribs, lungs,
larynx, trachea, bronchi etc. were normal;
his both chambers of heart were empty; his
peritoneum was pale; his teeth was 8/9; in
his stomach, 100 ml. semi digested food
was present; in his small intestine, digested
food and gas were present; in his large
intestine, faecal matter and gases were
present; his liver was 450 gm and was pale;
his gall bladder was half full; his pancreas
and spleen was pale; his both the kidneys
were also pale; and his urinary bladder was
empty. He further deposed that the antemortem injuries of the deceased Ramroop
could be attributable on 25.04.2009 at
06:30 a.m. by a sharp edged weapon.

P.W.6-Dr. G.P. Tiwari had also
stated that on internal examination of the
deceased Smt. Santoshi, he found that her
physique was normal; rigor mortis was
present on her whole body; her eyes were
closed; and her mouth was half opened. On
internal examination of the deceased Smt.
Santoshi, he found that her scalp and skull
were normal; her membranes and brain
were pale; her base and vertebrae were
normal;
ribs,
cartilages,
pleura
were
normal; her both the lungs and pericardium
were pale; her both portion of heart were
empty; her peritoneum was pale; her teeth
was 16/16; in her stomach, 200 ml. semi
digested food was present; in her small
intestine, digested food and gas was
present; in her large intestine, faecal matter
and gases were present; her liver was pale
and was 1100 gm; her gall bladder was half
full; her pancreas, spleen and both the
kidneys were pale; and her urinary bladder
was empty. He further deposed that injuries
of deceased Smt. Santoshi could be
attributable on 24.04.2009 at 06:30 a.m. by
sharp edged weapon. He proved antemortem injuries of Smt. Santoshi as Ext.
Ka. 6.

P.W.6 had further deposed that
on external examination of the deceased
Ravi, he found that his physique was
average; rigor mortis was present over his
whole body; his eyes were closed; and his
mouth was half opened. On internal
examination of the deceased Ravi, he found
9 All. State of U.P. Vs. Sarvan
1083
that his brain membrane was pale; his outer
membrane of lungs was pale; his both the
lungs were also pale; his pericardium was
also pale; his both the chambers of heart
were empty; his teeth was 6/6; in his
stomach, 50 ml. fluid was present; his liver
and both the kidneys were pale; and his
urinary bladder was empty. He proved the
post-mortem report of Ravi as Ext. Ka. 7.

In cross-examination, P.W.6 had
deposed that he conducted the post-mortem
examination of deceased in the light of
Petromax Gas. All the injuries of the
deceased have been sustained about the
same time. He further deposed that it was
not possible to ascertain that the injuries
inflicted by sharp edged weapon was
attributable by same weapon or by different
weapons. He further deposed that he
conducted the post-mortem examination of
the deceased Ramroop, Ravi and Smt.
Santoshi. At the time of post-mortem, Dr.
Ravi Awasthi was also along with him. He
found three ante-mortem injuries on the
dead body of the deceased Ravi. He
deposed that injury no.1 caused to the
deceased Ravi was attributable by sharp
edged weapon; and injury no.1 of the
deceased Ravi could be caused by banka or
hasiya or from falling upon sharp edged
iron. He reiterated the same opinion in
respect of injury no.2 caused to the
deceased Ravi. However, injury no.3
caused to the deceased Ravi could be
attributable by blunt object like danda. All
three injuries caused to the deceased Ravi
were lethal.

P.W.6, in his cross-examination,
had further deposed that he found six
ante-mortem injuries on the dead body of
the deceased Santoshi. He deposed that
injury no.1 caused to the deceased
Santoshi could be attributable by a blunt
object like lathi, danda and her injury
no.2 could be attributable by a sharp
edged weapon like hasiya, banka etc. He
reiterated the same opinion in respect of
other injuries caused to the deceased
Santoshi. He further deposed that he
found three injuries on the body of the
deceased Ramroop. He deposed that
injury no.1 caused to the deceased
Ramroop could be attributable due to
friction against any hard surface, whereas
injuries no. 2 and 3 could be attributable
by sharp edged weapon like hasiya and
banka etc. The Investigating Officer did
not record his statement with regard to
post-mortem
examination
of
the
deceased.

18. The post-mortem examination of
the dead-bodies of the deceased Sumiran
and Smt. Madhuri was conducted on
25.04.2009 at 08:30 p.m. and 09:00 p.m.,
respectively,
in
T.B.
Hospital,
Thakurganj, Luckow by Dr. Rajesh
Awasthi (P.W.9), who found the antemortem
injuries
on
their
person
enumerated hereinafter :-

"(I) Ante-mortem injury of
Sumiran daughter of Sarvan aged
about 4 years

Lacerated wound in the back of
neck trachea, larynx, vessels, oesophagus
lacerated.

The cause of death spelt out in
the autopsy report of the deceased
Sumiran
was
due
to
shock
and
haemorrhage as a result of ante-mortem
injuries.

(II) Ante-mortem injury of
Smt. Madhuri, wife of Kolai aged
about 50 years

1. Lacerated wound 6 x 3 cm on
the frontal and occipital region on
exploration underneath bone fracture.
haematoma in brain, margins lacerated
and haematoma present.
1084 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Lacerated Rt. eye 6 x 2 cm into
bone deep underneath orbit bone fracture.
Brain membranes lacerated;

3. Lacerated wound 7 x 3 Rt.
cheek bone underneath bone fracture;

4. Lt. ear lacerated;

5. Lacerated wound Rt. wrist
joint."

The cause of death spelt out in
the autopsy report of the deceased Smt.
Madhuri was due to shock and hemorrhage
as a result of ante-mortem injury no. 4.

19. It is significant to mention here
that
P.W.9-Dr.
Rajesh
Awasthi
had
reiterated the aforesaid cause of death of
the deceased Sumiran and Smt. Madhuri
before the trial Court and had further
deposed,
in
his
examination-in-chief,
before the trial Court that on 25.04.2009,
he was posted as Medical Officer in T.B.
Hospital. On that date, on the direction of
the District Magistrate, he conducted the
post-mortem examination of the dead
bodies of deceased Sumiran d/o Sarvan
aged about 04 years and deceased Smt.
Madhuri, w/o Kolai, which were brought
by C.P. 1301 Mohd. Shamim and C.P. 129
Braj Kishore Patel of police station
Mohanlalganj. He deposed that on external
examination of deceased Sumiran, he found
that rigor mortis was present over her upper
and lower parts of the body; and the
deceased Sumiran died on account of antemortem injuries caused to her. He deposed
that the deceased Sumiran could have died
before 6-12 hours of the post-mortem. He
proved the post-mortem report of the
deceased Sumiran and Smt. Madhuri as
Ext. Ka. 11 and Ext. Ka. 12, respectively.

In cross-examination, P.W.9 had
deposed that ante-mortem injury caused to
deceased Sumiran could be attributable by
sharp edged weapon and she could have
died before six hours of the post-mortem.
He further deposed that injury no.1 caused
to
the
deceased
Madhuri
could
be
attributable by sharp edged weapon; injury
no.1 could also be attributable by blunt
object; injury no.2 could be attributable by
any weapon, however, injury was lacerated;
injuries no. 3, 4 and 5 could be attributable
by blunt object. The injuries caused to the
deceased Madhuri could be attributable
before 12 hours of the post-mortem.

20. It is pertinent to mention that
during the incident, son of the informant
(P.W.1), namely, Rajendra, also sustained
injuries in the incident. On the date of the
incident, Rajendra was admitted in Trauma
Centre, Lucknow by the police. During his
treatment, Rajendra aged about 10 years
died on 03.05.2009 in the night. After the
death of Rajendra, informant (P.W.1) gave
information about the death of his son
Rajendra to the police on 06.05.2009 (Ext.
Ka.2).

21 . The evidence of P.W.11-Sri
Pramhans
Prasad
shows
that
on
04.05.2009, he was posted as Sub-Inspector
at Medical College Chowki of police
station Chowk. On the information of S/A
Monu Kumar, he and Constable Chandrika
Prasad reached Medical College Mortuary
along with requisite papers at 09:40
O'clock. The dead-body of the deceased
Rajendra aged about 10 years was in
mortuary, wherein the family members of
the deceased Rajendra were also present.
The ''panchayatnama' of the dead body of
the deceased Rajendra was prepared by
him.

In cross-examination, P.W.11 had
deposed that he only conducted the
''panchayatnama' of the dead body of the
deceased Rajendra, which started at 09:40
a.m. and ended it at 10:10 a.m.. The family
members of the deceased Rajendra, who
9 All. State of U.P. Vs. Sarvan
1085
were present there, had put their signature
in the ''panchayatnama', which was written
on spot.

22. P.W.7-Guddu, who is the real
brother of the deceased Rajendra, in his
examination-in-chief, had deposed that
deceased Rajendra was aged about 10
years. The ''panchayatnama' of the dead
body of the deceased Rajendra was
conducted by the Inspector at Medical
College Mortuary in his presence on
04.05.2009
at
10:00
a.m.
The
panchayatnama was written in his presence
and it was read over to him by the Inspector
and after that he put his signature thereon.

In
cross-examination,
P.W.7Guddu had deposed that on 04.05.2009,
''panchayatnama' was made and at that
time, he (Guddu), Inspector, Sangeeta
(injured), Ram Naresh and Adesh were
present. In the panchayatnama, he put his
signature and four persons also affixed
their thumb impression. He further deposed
that there were about 6-7 injuries on the
head of the deceased Rajendra.

23. The post-mortem examination of
the dead body of the deceased Rajendra
was conducted on 04.05.2009 at 01:00 p.m.
in Balrampur Hospital, Lucknow by Dr.
U.K. Prasad (P.W.5), who found the antemortem injuries on his person enumerated
hereinafter :-

"Ante-mortem
injuries
of
deceased Rajendra, son of Kolai

1. Contusion 8.0 cm x 5.0 cm
present on forehead 2.0 cm above root of
nose.

2. Contusion 10.0 cm x 8.0 cm
present on back of head over occipital
region.

3. Contusion 5.0 cm x 4.0 cm
present on Rt. temporal region 2.0 cm
above Rt. ear. On opening echchymosis
present
underneath
above
mentioned
injuries. Fracture of Rt. temporal, Rt.
parietal
bones
present
and
subdural
haematoma present all over the brain
underneath the fracture brain meninges
lacerated & extra dural haematoma present.

The cause of death spelt out in
the autopsy report of the deceased Rajendra
was coma as a result of ante-mortem head
injuries.

24. It is significant to mention here
that P.W.5-Dr. U.K. Prasad, in his
examination-in-chief, had reiterated the
aforesaid cause of death of the deceased
Rajendra before the trial Court and had
further deposed that on 04.05.2009, he was
posted as Senior Surgeon at Balrampur
Hospital, Lucknow. On the same date, at
about 01:00 p.m., he conducted the postmortem of the unsealed body of the
deceased Rajendra aged about 10 years,
which was brought and identified by C.P.
2666 Chandrika Prasad of Police Station
Chowk, Lucknow. The deceased Rajendra
died at Gandhi Memorial & Associated
Hospital on 03.05.2009 at 08:40 p.m. He
further
deposed
that
on
external
examination of the dead body of the
deceased Rajendra, he found that his
physique was average; rigor mortis was
present all over his body; P.M. staining was
present on his back; tracheotomy tube was
present in his neck; I.V. cannula was
present on his right wrist joint; ryles tube
was present on his right nostril; eyes were
closed; and mouth was half open. On
internal examination, he found that brain
membrane was torn; pleura, both lungs and
pericardium were congested; left chamber
of heart was empty; right chamber of heart
was empty; in the stomach, 60 ml fluid was
present; in the small intestine, digested
food and gas were present; in the large
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
intestine, faecal matter and gases were
present; liver was 850 gms and was
congested; his gall bladder was half full;
his pancreas was congested; his spleen was
90 gms and was congested; both the
kidneys were 125 gms and was congested;
urinary bladder was empty; and the organ
of generation was normal. He further
deposed that it was difficult to say how old
are the injuries but injuries could be
attributable from back of the ''axe'. He
proved the post-mortem report (Ext. Ka. 4).

In cross-examination, P.W.5 had
deposed that injuries could be attributable
from back of the ''axe'.

25. The case was committed to the
Court of Sessions in usual manner where
the convicts/appellants were charged for
the offence punishable under Sections 302,
323, 201 I.P.C.. They pleaded not guilty to
the charges and claimed to be tried. Their
defence was of denial.

26. During trial, the prosecution, in
order to prove its case, had examined
thirteen
witnesses
viz.
P.W.1-Kolai
(informant);
P.W.2-Sangeeta
(injured),
daughter of the informant and deceased
Madhuri; P.W.3-Ram Naresh, son-in-law
of the informant (P.W.1); P.W.4-Dr.
Shailendra Kumar Dwivedi, who conducted
the
medical
examination
of
injured
Sangeeta (P.W.2); P.W.5-Dr. U.K. Prasad,
who conducted the post-mortem of the
deceased Rajendra; P.W.6-Dr. G.P. Tiwari,
who conducted the post-mortem of the
deceased Ramroop, Smt. Santoshi, Ravi;
P.W.7-Guddu, who is the witness of
conducting panchayatnama of the dead
body of the deceased Rajendra; P.W.8-S.I.
Anand Kumar Pandey, who registered the
chik F.I.R. on the basis of the written report
of informant (P.W.1); P.W.9-Dr. Rajesh
Awasthi, who conducted the post-mortem
of the dead body of the deceased Sumiran
and Smt. Madhuri; P.W.10-Bal Krishna
Singh, who is witness of ''panchayatnama'
of the dead bodies of the deceased
Ramroop, Smt. Santoshi, Ravi, Sumiran
and Smt. Madhuri; P.W.11-S.I. Pramhans
Prasad,
who
conducted
the
''panchayatnama' of the dead body of the
deceased
Rajendra;
P.W.12-S.I.
Ram
Vishal ''Suman', who accompanied the
Investigating Officer Ashok Kumar Shukla
while conducting the investigation of the
case and prepared the panchayatnama of
the deadbodies of the deceased Ramroop,
Santoshi, Ravi, Sumiran and Madhuri; and
P.W.13-Dharam Pal Singh, who also
accompanied the Investigating Officer
Ashok Kumar Shukla while conducting the
investigation of the case. The trial Court
had also examined Constable C.P. 840 Sri
Satish Kumar Kushwaha as C.W.1 in order
to prove the fact that the Investigating
Officer of the case, namely, Ashok Kumar
Shukla died on 29.05.2014.

27. P.W.1-Kolai, informant, in his
examination-in-chief, had deposed before
the
trial
Court
that
Sarvan
(convict/appellant) was residing in front of
his house in the village.