# State v. Ram Naresh Gupta & Ors

- **Citation:** (2024) 5 ILRA 306
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Government Appeal No. 137 of 1983
- **Bench:** Rajiv Gupta, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-v-ram-naresh-gupta-ors-52101
- **Pages:** 12

## Headnote

Criminal Law-Indian Penal Code-1860Sections 302/34, 323- Government Appeal
against the impugned judgment and order
whereby accused-appellants have been convicted
for the offence under section 323/34 I.P.C and
acquitted from the charges under Sections 302,
302/34 I.P.C- Major contradictions in the
testimonies of the witnesses to the extent that
the accused Ram Naresh snatched the female
child from the lap of P.W.-6 Kabutari and
thereafter threw her on the ground due to which
she died, which has also not been supported by
the medical evidence-It is also impossible to
believe that if a man snatches a one year-old girl
from the lap and throws her on the ground from
about five palm length, she will definitely sustain
any mark of injury. Absence of any injury having
been found on the body of the deceased Lilawati
makes the prosecution version fabricated and
doubtful.

Initially charge against the accused Ram Naresh
Gupta has been framed by simply under Section
302 I.P.C. and not under Section 302 r/w Section
34 I.P.C., whereas on the same day another
charge has been framed by the trial court against
the accused-respondents under Section 302
I.P.C. r/w Section 34 I.P.C. and Section 323 r/w
5 All. State Vs. Ram Naresh Gupta & Ors.
307
Section 34 I.P.C. Such alteration in the charge
framed against the accused-respondents on the
same day has not been explained by the
prosecution, which also makes the prosecution
case
doubtful-
Result-Government
Appeal
dismissed. (E-15)

List of Cases cited:

Bhajandas Vs Emperor reported in Cr.L.J. Reports
1923 Lahore High Court 421

## Text

306 INDIAN LAW REPORTS ALLAHABAD SERIES
present matter have been independently
proved and there is failure to complete the
chain of circumstances.

41. The non-examination of any
witness who was illustrated in the list of
charge sheet will not destroy the prosecution
version in entirety. On appreciation of
evidence, unless it is shown that a particular
accused caused these injuries, no-one can be
held responsible and guilty. Mere heinous
and gruesome crime is not enough to punish
the accused. Suspicion however, strong it
may be, can not take place of legal proof.
There is no satisfactory explanation about
the serious infirmities, inconsistencies and
contradictions in the prosecution case.

42. In the light of prolix and verbose
discussion of evidence made herein above and
also regard being had to the entire facts and
circumstances of the case, we are of the opinion
that the prosecution has completely failed to
establish such a chain of circumstantial evidence
as would fasten the guilt of the accused/
appellants leaving no room of reasonable doubt.
The trial court has accepted the prosecution
evidence holding the accused appellants guilty
for the offence punishable under section 302 IPC
on fragile and feeble evidence, while there are
material contradictions in the statements of
prosecution witnesses, medical testimony etc
which does not inspire confidence .

43. Resultantly, the appeal is allowed.
The conviction of the accused appellants
under section 302 IPC and the sentence
passed thereon by the trial court vide
judgment and order dated 24.5.2022 are set
aside. The accused appellants are acquitted
of all the charges. They shall be released
forthwith, if not required to be detained in
any other offence.

44. Lower court record be sent back.
----------
(2024) 5 ILRA 306
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 137 of 1983

State ...Appellant
Versus
Ram Naresh Gupta & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Ram Shiromani Shukla

Criminal Law-Indian Penal Code-1860Sections 302/34, 323- Government Appeal
against the impugned judgment and order
whereby accused-appellants have been convicted
for the offence under section 323/34 I.P.C and
acquitted from the charges under Sections 302,
302/34 I.P.C- Major contradictions in the
testimonies of the witnesses to the extent that
the accused Ram Naresh snatched the female
child from the lap of P.W.-6 Kabutari and
thereafter threw her on the ground due to which
she died, which has also not been supported by
the medical evidence-It is also impossible to
believe that if a man snatches a one year-old girl
from the lap and throws her on the ground from
about five palm length, she will definitely sustain
any mark of injury. Absence of any injury having
been found on the body of the deceased Lilawati
makes the prosecution version fabricated and
doubtful.

Initially charge against the accused Ram Naresh
Gupta has been framed by simply under Section
302 I.P.C. and not under Section 302 r/w Section
34 I.P.C., whereas on the same day another
charge has been framed by the trial court against
the accused-respondents under Section 302
I.P.C. r/w Section 34 I.P.C. and Section 323 r/w
5 All. State Vs. Ram Naresh Gupta & Ors.
307
Section 34 I.P.C. Such alteration in the charge
framed against the accused-respondents on the
same day has not been explained by the
prosecution, which also makes the prosecution
case
doubtful-
Result-Government
Appeal
dismissed. (E-15)

List of Cases cited:

Bhajandas Vs Emperor reported in Cr.L.J. Reports
1923 Lahore High Court 421

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

1. We have heard Mr. Purshottam
Upadhyay, learned Additional Government
Advocate for the State-appellant and Mr.
Nikhil Kumar, learned Amicus Curiae, for
the accused-respondents as well as perused
the materials available on trial court's
record.

2. This Government Appeal is directed
against the impugned judgment and order
dated
30.09.1982,
passed
by
IVth
Additional Sessions Judge, Mirzapur in
Sessions Trial No. 7 of 1981 (State Vs. Ram
Naresh
Gupta
and
others),
whereby
accused-appellants Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta have been convicted for the offence
under section 323/34 I.P.C. and sentenced to
undergo
three
months
rigorous
imprisonment alongwith fine of Rs. 150/-
each; in default thereof, they have to further
undergo 15 days additional imprisonment
each. By the impugned judgment, the
accused-respondents have been acquitted
from the charges under Sections 302, 302/34
I.P.C.

3. During pendency of the instant
Government Appeal, accused-respondent
nos. 1, 2 and 4, namely, Ram Naresh Gupta,
Basdeo Gupta and Madan Gupta have
already died, hence the instant Government
Appeal at their behest have also been abated
by this Court vide order dated 6th May,
2024.

4. As per the prosecution case, there
was enmity between the accused persons
and Mahendra Prasad (complainant/P.W.-1)
with regard to some land situated in village
Khetkatawa. On 4.7.1979 a first information
report (Ex. Ka-17) was lodged by P.W.-1
Mahendra Prasad at Police Station Kon,
District Mirzapur against accused persons,
namely, Ram Naresh Gupta, Basdeo Gupta,
Ram Nath Gupta and Madan registered as
Case Crime No. 16 of 1979 under Sections
148, 149, 302 and 323 of I.P.C. at Police
Station-Kone, District Mirzapur, as per
which on 4.7.1979 at about 6:00 a.m. the
accused persons went to the village
Khetkatawa and asked the complainant
(P.W.-1) as to why he had set up hut
(Mandai) on the land which the accused
persons claimed to be their own. The
complainant is alleged to have replied that
he erected the hut (Mandai) to look after his
land. An altercation ensued, whereafter the
accused Basudeo is alleged to have wielded
a lathi on the complainant's brother
Rajendra and when complainant Mahendra
went to rescue Rajendra, accused Madan
Gupta attacked him with lathi, wife of
Rajendra Smt. Kabootari also rushed to the
spot to rescue him but Ram Naresh Gupta
beat her with lathi and also snatched the
female child Lilawati aged about 9 months
from her lap and threw her on the ground.
Ramnath stuck a lathi on Halkeri, father of
the complaint and he too was injured. In the
meantime, other villagers arrived there and
on their intervention, the accused ran away
from the place of incident. Thereafter, the
complainant Mahendra Prasad took all the
injured persons along with the female child
to the police station Kone, District-
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Mirzapur. While going to the police station,
the female child died on the way.

5. On the basis of the written report,
chick first information report Ex. Ka-17 was
prepared. Details of the incident were
entered in the general diary of 4.7.1979 at
Rapat No. 7 at 6:45 a.m. and the crime was
registered at No. 16/1979, under Sections
148, 149, 302, 323 I.P.C..

6. After registration of the first
information
report,
Sub-Inspector
Dharmdeo Singh prepared the inquest report
(Ex. Ka-2) of the dead body of the deceased
female child. He also prepared the photo
lash (Ex. Ka-11) and sealed the dead body
and sent it for post-mortem by Constable
Ram Gopal.

7. An autopsy of the dead body of the
deceased Lilawati has been conducted by
Dr. R.A. Mishra (P.W.-4) on 5th July, 1979
at 02:00 p.m. He did not found any visible
injury on the body of the deceased. He
opined that the death of the deceased is
shock and haemorrhage due to rupture of
enlarged spleen.

8. P.W.-4 has also medically examined
the injured Halkhori on 5th July, 1979 at
11:00 a.m. and found following injuries on
her body:

"1. Lacerated wound 3 1⁄2 cm. x 2
cm. x 1⁄2 cm. on middle of head, 11 cm. above
root of nose. Pus present.

2. Contusion abrasion 4 cm. x 1
cm. on back of left forehand, 5 cm. above
wrist joint."

9.
The
injuries
of
injured/complainant/P.W.-1
Mahendra
Prasad has also been examined by Dr. R.A.
Mishra, P.W.-4 and he found following
injuries on his person:

"1. Contusion with swelling 3 cm.
x 1 cm. on back and middle of right palm.

2. Contusion 6 cm. x 1 1⁄2 cm. on
back of left chest. 8 cm. below lower part of
scapula.

3. Contusion 2 cm. x 1 cm. on left
chest on its back 6 cm. below shoulder joint.

4. Contusion 2 cm. x 1 cm. on back
of right elbow joint.

5. Contused abrasion 1 cm. x 1⁄2
cm. on left side of head, 12 cm. above the left
ear."

10. Following injuries have also been
found by the same doctor i.e. P.W.-4 on the
person of injured Rajendra Prasad P.W.-2:

"1. Lacerated wound 6 cm. x 1 cm.
x bone deep on left side of head. 5 cm. above
left eye brow.

2. Lacerated wound 2 cm. x 1⁄2 cm.
x 1⁄2 cm. on right side of head 12 cm. above
right ear.

3. Contusion 2 cm. x 1 cm. on back
of left forearm 6 cm. above wrist joint.

4. Contusion 16 cm. x 1/2 cm. on
back of chest crossing middle at level of 6 cm.

5. Contusion 10 cm. x 11⁄2 cm. on
back of chest crossing middle transic 8 cm.
below injury No. 4.

6. Contusion 10 cm. x 1 cm. on
back of left chest, 4 cm. below injury No. 5.

7. Contusion 4 cm. x 1 cm. on left
thigh, 8 cm. above left knee joint."

11. P.W.-4 found following injury on the
person of injured Smt. Kabutari (P.W.6) :-

"1. Lacerated wound 5 cm. x 1 cm. x
bone deep on right side of head, 7 cm. above right
ear."
5 All. State Vs. Ram Naresh Gupta & Ors.
309

12. The injury reports of the injured
persons have been exhibited as Ex. Ka-3,
Ka-4, Ka-5, Ka-6 and post mortem report of
the deceased has been exhibited as Ex. Ka7.

13. The investigating officer made spot
inspection and prepared the site plan (Ex.
Ka-13). The injured were also sent for their
medical examinations. The statements of the
witnesses were recorded by the investigating
officer. Thereafter, the investigation of the
case was taken over by the Station House
Officer, Sri Ram Dular Ram. He recorded
the statements of Sarjoo, Ramjeth and
Nankakoo.

14. After completion of the statutory
investigation under Chapter XII Cr.P.C., Sri
Ram Dular Ram, the investigating Officer
submitted charge-sheet (Ex. Ka-14) against
all the accused persons under Sections
302/323 I.P.C.

15. On the basis of material so
collected and produced by the prosecution,
the trial court on 23rd June, 1981 following
charge was framed against the accusedrespondent Ram Naresh Gupta:

"I, U.S. Pandey, Vth Addl.
Sessions Judge, Mirzapur hereby charge
you Ram Naresh Gupta as follows:

That you on 4.7.1979 at about
6.00 A.M. in village Khetkatawa within
police circle Kon, District Mirzapur did
commit murder by intentionally causing the
death of Lilawati, a child aged about one
year and thereby committed an offence
punishable under section 302 I.P.C. and
within my cognizance.

And I hereby direct that you be
tried by me on the said charge."

16. On the same day i.e. 23rd June,
1981 following charges were framed against
the
accused-respondents
Ram
Naresh
Gupta, Basdeo Gupta, Ram Nath Gupta and
Madan Gupta jointly:

"I,
U.S.Pandey,
IVth
Addl.
Sessions Judge, Mirzapur hereby charge
you Ram Naresh Gupta, Basdeo Gupta, Ram
Nath Gupta, and Madan Gupta as follows:

Firstly that you on 4.7.1979 at
about 6.00 Α.Μ. in village Khetkatawa
within police circle Kon, District Mirzapur
in furtherance of your common intention in
commit murder by intentionally causing the
death of Lilawati, a child aged about one
year and thereby committed an offence
punishable under section 302/34 1.P.C. and
within my cognizance.

Secondly, that you on the same
date, time and place and in-furtherance of
the same common intention caused simple
hurt to Halkhori, Mahendra Prasad,
Rajendra Prasad and Smt. Kabutari and
thereby committed an offence punishable
under section 323/34 I.P.C. and within my
cognizance.

And I hereby direct that you be
tried by me on the said charges."

The charges were read over and
explained to the accused persons in Hindi,
who pleaded not guilty and claimed to be
tried.

17. During the course of trial, the
prosecution
has
produced
following
documentary evidences:-

"1. F.I.R. dated 04.07.1979 is
exhibited as Ex. Ka-17.

2.
Written
Report
dated
04.07.1979 is exhibited as Ex. Ka.-16.

3.
Written
Report
dated
04.07.1979 is exhibited as Ex. Ka-15.
310 INDIAN LAW REPORTS ALLAHABAD SERIES

4.
Written
Report
dated
04.07.1979 is exhibited as Ex. Ka-1.

5. Injury Report of Halkhori dated
05.07.1979 is exhibited as Ex. Ka-3.

6. Injury Report of Mahendra
Prasad dated 05.07.1979 is exhibited as Ex.
Ka-4.

7. Injury Report of Rajendra
Prasad dated 05.07.1979 is exhibited as Ex.
Ka-5.

8. Injury Report dated Smt.
Kabootari 05.07.1979 is exhibited as Ex.
Ka-6.

8. Post mortem report of deceased
child Km. Lilawati dated 05.07.1979 is
exhibited as Ex. Ka-7.

9. Charge Sheet mool dated
28.07.1979 is exhibited as Ex. Ka-14.

10. Site Plan with index dated
07.07.1979 is exhibited as Ex. Ka-13."

18. The prosecution also examined
total nine witnesses in the following
manner:-

"(1). P.W.-1/Informant, namely,
Mahendra Prasad, who is the informant and
received injuries in the incident.

(2). P.W.-2, namely, Rajendra
Prasad, who is the father of the deceased
female child namely Km. Lilawati and also
received injuries in the incident;

(3) P.W.-3, namely, Sarju Prasad,
who is stated to be the eye-witness of the
incident.

(4) P.W.-4, namely, Dr. R. A.
Mishra, who has medically examined the
injured persons and also conducted the post
mortem report of the deceased female child
namely, Km. Lilawati on 5h July, 1979 at
C.H.C., Robertsganj, Mirzapur.

(5) P.W.-5, namely, Halkhori
Saav, who is the father of the informant,
grand-father of the the deceased female
child namely, Km. Lilawati and also
received injuries in the incident.

(6) P.W.-6, namely, Kabutari, who
is the mother of the deceased female child
namely, Km. Lilawati and also received
injuries in the incident.

(7) P.W.-7, namely, Dharmdev
Singh, who was the first investigating
officer; has prepared the panchayatnama
and recorded the statements of Rajendra
Prasad, Halkhori, Kabootari

(8) P.W.-8, namely, Ramdular,
who was the investigating officer and
submitted the charge-sheet against the
accused persons.

(9) P.W.-9, namely Ramvilas
Singh, Constable."

19.

After
completion
of
the
prosecution evidence, statement of the
accused was recorded under Section 313
Cr.P.C. The accused-respondents, namely,
Ram Naresh Gupta, Basdeo Gupta, Ram
Nath Gupta and Madan Gupta, while giving
their statements in the Court, denied the
prosecution evidence and stated that they
have been falsely implicated on account of
harbouring grudges qua land in question.

20. On the basis of above evidence oral
as well as documentary adduced during the
course of trial, on the issue whether the
female child Kumari Lilawati had been
snatched from the lap of P.W.-6 Smt.
Kabutari by the accused Ram Naresh and
thereafter he had thrown her on the ground
due to which the child sustained internal
injuries and died on the way of police
station, the trial court, relying upon the
version as unfolded in the first information
report, testimonies of P.W.-1/Informant
Mahendra Prasad, P.W.-2 Rajendra Prasad,
P.W.-3 Sarjoo Prasad, P.W.-5 Halkhori and
P.W.-6 Smt. Kabutari Mahajan, has opined
that the prosecution evidence qua forcibly
5 All. State Vs. Ram Naresh Gupta & Ors.
311
throwing down of Smt. Kabutari after
receiving lathi blow is self contradictory.
The trial court further recorded its finding
that after receiving lathi blow Smt. Kabutari
fell down and as soon as she fell down, the
female child had also slipped from her lap
on the ground. Automatically, the female
child would have fallen down from her lap
on the ground.

21. Further while dealing with the
testimony of witnesses a question arose as to
whether mere falling down from the lap
would cause the death of the female child or
not, the trial court while relying upon the
testimony of P.W.-4 Dr. R.A. Mishra,
recorded its finding that the spleen of the
female child would rupture if the female
child had fallen down on the ground from
the lap of PW.-6 Kabutari, while the latter
had fallen down on receiving lathi blows on
her head.

22. On the basis of such finding, the
trial court has come to the conclusion that
the prosecution has failed to prove beyond
reasonable doubt that the accused Ram
Naresh had snatched the female child from
the lap of P.W.-6 Smt. Kabutari and threw
her on the ground which caused rupture of
her spleen resulting in her death. The trial
court also opined that there is no evidence
on record that the accused Ram Naresh had
any knowledge about the weakness or
illness of the deceased female child, as such,
even if it is taken to be correct that the
accused Ram Naresh had snatched and
threw the female child on the ground which
resulted in her death would not amount to
murder. Relying upon the judgment of the
Lahore High Court in the case Bhajandas
Vs. Emperor reported in Cr.L.J. Reports
1923 Lahore High Court 421, the trial court
also opined that the accused would be guilty
only of causing simple injury and from that
view also, the charge under Section 302 of
I.P.C. hereby fails and further the charge
under Section 302 read with Section 34 of
I.P.C. also fails.

23. On the basis of such finding, the
trial court has held that the accused are
found guilty of the charge under Section
323/34 I.P.C. Consequently, the trial court
convicted the accused Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta under Section 323/34 I.P.C. and
sentenced them to undergo three months
rigorous imprisonment along with fine of
150/- each and in case default of fine, they
have to further undergo 15 days additional
rigorous imprisonment.

24. Being aggrieved with the
impugned judgment and order of conviction
passed by the trial court, the State has
preferred the present Government Appeal
against the impugned judgment of acquittal
of
accused-respondents,
namely,
Ram
Naresh Gupta, Basdeo Gupta, Ram Nath
Gupta and Madan Gupta by the trial court.

25. Assailing the impugned judgment
and order of conviction, the learned A.G.A.
for the State in the present government
appeal,
has
advanced
following
submissions:

(i). The first information report
(Exhibit-ka/17) lodged on 4th July, 1979 at
06:00 a.m. in the morning on the basis of
written report (Exhibit-ka/1) given by the
first
informant/P.W.-1
Ram/Mahendra
Prasad on 4th July, 1981 is prompt first
information report.

(ii) There is clinching and direct
evidence against the accused by way of
testimonies of ocular-cum-injured witnesses
i.e. P.W.-1 Mahendra Prasad, P.W.-2
Rajendra Prasad, P.W.-5 Halkhori Saav and
312 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.-6 Kabutari, and independent eye
witnesses i.e. P.W.3 Sarju Prasad and the
same has also been supported by the medical
and other material evidence as available on
trial court record.

(iii) Since the incident occurred in
broad day light i.e. at 06:00 a.m., all the
prosecution
witnesses
have
correctly
identified the accused persons while
commissioning of the alleged offence and
also assigned their role in such offence
successfully.

(iv) There is strong motive for the
accused-respondents to commit the alleged
offence including the heinous murder of one
year female child, namely, Lilawati, as there
was long standing dispute pending before
the prescribed authority under Section 145
Cr.P.C. with regard to title and possession
over the land over the plot no. 118Ka (the
new number of which was 267 Ka, Kha, Ga,
Gha.

(iv)
Except
the
minor
inconsistencies/contradictions,
the
testimonies of all the prosecution witnesses
including injured and independent eyewitnesses i.e. P.W.-1 Mahendra Prasad,
P.W.-2 Rajendra Prasad, P.W.3 Sarju
Prasad, P.W.-5 Halkhori Saav and P.W.-6
Kabutari are throughout consistent either in
their-examination--in-chief and also in their
cross-examinations, which have also been
supported
by
the
other
prosecution
witnesses like Investigating Officer, who
conducted the investigation of the case and
the Doctor who conducted the post-mortem
examination of the body of both deceased
and the Doctor who conducted the medical
examinations of the four injured prosecution
witnesses.

(v) The site plan also supports the
prosecution case.

(vi) The defence has failed to
establish its theory of private defence. It is a
not case of cross case in which it is alleged
by the defence that they have committed the
offence in private defence, as no case or
complaint has been lodged by the defence
side.

vii. On the basis of the aforesaid
submissions, learned A.G.A. submits that as
this is a case of direct and clinching
evidence, the testimonies of eye witnesses,
namely, P.W.-1 Mahendra Prasad, P.W.-2
Rajendra Prasad, P.W.3 Sarju Prasad, P.W.-
5 Halkhori Saav and P.W.-6 Kabutari who
are
consistent
throughout
in
their
examination-in-chief
and
the
crossexaminations inspire confidence in the facts
and circumstances of the case and they have
disclosed about the commissioning of the
offence of murder of the deceased Lilawati
and the same has also been supported by the
medical evidence in all material particulars,
therefore, trial court has committed gross
error in acquitting the accused-respondents
for the offence under Section 302/34 I.P.C.
The trial court while ignoring the entire
evidence produced by the prosecution, has
passed the impugned judgment, which
suffers from illegality and perversity. As
such the same is liable to be set aside and the
accused-respondents are liable to be
convicted for the offence punishable under
Section 302/34 I.P.C. also. Hence, the
instant Government Appeal filed by the
State is liable to be allowed.

26. On the other-hand, learned counsel
for the accused-respondents have advanced
following counter submissions:

(i). The first information report
lodged on 8th July, 1981 at 04:50 p.m. on
the basis of written report of the first
informant/P.W. dated 8th July, 1981 is ante
time.

(ii) Non recovery of crime weapon
i.e. lathi or any other weapon makes the
prosecution case doubtful.
5 All. State Vs. Ram Naresh Gupta & Ors.
313

(iii)
There
are
major
contradictions in the testimonies of the
prosecution witnesses.

(iv) Instead of the defence, the
prosecution has motive to falsely implicate
the accused in the present case.

(v). The prosecution side is
aggressor in commissioning of the alleged
fight (maarpeet) in which the injured
persons have sustained simple injury, as
they have illegally encroached upon the land
of the accused by making a hut, of which
litigation is pending before the appropriate
court of law. Qua the said fight, the accused
Ram Naresh Gupta gave a letter to the
Superintendent of Police, Mirzapur and
Deputy Superintendent of Police, Turi
(Renukut), District Mirzapur for lodging of
the first information report against the
members of prosecution.

(vi). During the alleged fight
(maarpeet), the accused have exercised their
right of private defence of their property.

(vii). As per the post-mortem
report, no visible injury was seen on the
body of the deceased Lilawati. The Autopsy
Surgeon has opined that the cause of death
of the deceased is shock and haemorrhage
due to enlarged spleen. Therefore, the
prosecution
version
specially
the
prosecution eye witnesses that the accused
Ram Naresh Gupta had snatched the
deceased Lilawati from the lap of her mother
i.e. Kabutari (P.W.-6) and threw her on the
ground due to whichshe died on the way to
the Police Station, has no legs to stand.

On the cumulative strength of the
aforesaid submissions, learned counsel for
the accused-respondents submits that the
instant case is based on weak piece of
evidence, therefore, the impugned judgment
and order of acquittal under Section 302/34
I.P.C. does not suffer from any illegality and
infirmity so as to warrant any interference
by this Court. As such the present
Government Appeal filed by the State is
liable to be dismissed.

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

28. It is in the context of above
submissions and materials placed on record
before the Court that this Court is required
to consider as to whether the prosecution has
established the guilt of accused-appellants
on the basis of evidence on record beyond
reasonable doubt? And secondly, whether
impugned judgment of the trial court, which
on the basis of evidence oral as well as
documentary led during the course of trial
has acquitted the accused-respondents under
Sections 302/34 I.P.C. is legally sustainable
or not?

29. Before entering into the merits of
the case set up by the learned counsel for the
accused-appellant
in
criminal
appeal,
learned counsel for the accused-respondent
in government appeal and the learned
A.G.A. as also the learned counsel for the
first informant in both the appeals qua
impugned judgment and order of acquittal
passed by the trial court, it is desirable for us
to briefly refer to the statements of the
prosecution witnesses as well as the defence
witnesses.

30. Firstly, we may refer to the
versions as unfolded in the first information
report on the basis of written report given by
the
first
informant/P.W.-1
Mahendra
Prasad, which read as follows:

"Today i.e. on 4-7-79, at 6:00
o'clock in the morning, everyone was
present inside and outside the hut of the
314 INDIAN LAW REPORTS ALLAHABAD SERIES
farm along with the family. Tehsildar Survey
Settlement has registered the case qua the
land in dispute between his father Halkhori
Sah and the accused Basdeo. Because of the
said case, there was animosity between his
family and the accused. Ram Naresh Gupta,
Basdeo, Ramnath Gupta and Madan Gupta
reached at his hut and asked as to why they
have erected the hut on the land in dispute
on which the first informant/P.W.-1 and his
family members replied that they had set up
the said hut for protecting their field.
Consequently, altercation started between
them. In the meanwhile, the accused started
beating his brother Rajendra Prasad (P.W.-
2) by lathi due to which he fell down. When
the first informant went to rescue him,
accused Madan started beating him with a
stick. When the wife of Rajendra, namely,
Kabutary (P.W.-6), who was having about
one year female child in her lap, ran to
rescue them, the accused Ram Naresh Gupta
hit her by lathi due to which she sustained
injuries on her head and also the accused
Ram Naresh Gupta snatched the female
child of Kabutari from her lap and threw her
on the ground. When the first informant and
his family members came to the police
station, the female died. His father Halkhori
Sah was also beaten by Ramnath Gupta with
a stick due to which he sustained injuries on
his head and neck. Sarju Prasad, Nanhku
and Ram ji saw the incident and several
other people of the village came to their
rescue and the accused persons ran away
towards the east."

31. P.W.-1/first informant Mahendra
Prasad stated in his examination-in-chief
that it was 06:00 o'clock in the morning,
when he was inside his hut and his brother
Rajendra, his father Halkhori Saav, wife of
Rajendra, namely, Kabutari having his
female child aged about one and half years
in her lap, were also present there. At the
relevant time, all the accused persons,
namely, Ram Naresh Gupta, Ram Nath,
Basdeo and Madan being armed with lathi in
their hands, reached there. All the accused
persons abusing the first informant/P.W.1,
his brother Rajendra, his father Halkhori
Saav, wife of Rajendra, namely, Kabutari
asked as to why they have constructed hut
on the land in question. The first informant
replied that they were present there for
taking care of their field. Thereafter,
altercation started between them and
meanwhile the accused Basdeo abusing his
brother Rajendra, started hitting him with
lathi. When he ran to rescue him, then the
accused Madan hit him with lathi. The
accused Ram Naresh gave one blow of lathi
to Kabutari and snatched her daughter from
her lap and threw her on the ground. The
accused Ram Nath hit his father with lathi.
Ram Ji, Nanhku, Sarju etc. witnessed the
entire incident. The aforesaid witnesses
intervened and rescued them. After beating
them, all the accused ran away towards east.
The first informant took the daughter of
Kabutari. Rajendra and other injured
persons to the Police Station, however, on
the way she died.

32. In the cross-examination, this
witness stated that Rajendra's daughter, i.e.
the deceased, who was killed was not sick,
but was healthy. This witness further stated
that the accused persons did not enter into
the hut. There was a fight on the east side of
the hut. He could not disclose as to whether
there was blood on the ground or not. At the
time of the incident, P.W.-6 Kabutari was
inside and they were outside. When the fight
started, she also came out. When the
accused Ram Naresh hit P.W.-6 Kabutari
with a stick, she fell down. After hitting
P.W.-6 Kabutari, the accused Ram
Naresh
snatched
the
female
child
(deceased) and threw her and then
5 All. State Vs. Ram Naresh Gupta & Ors.
315
pushed her due to which she fell down. He
further stated that the female child was
pulled from the side of P.W.-6 Kabutari
by the accused Ram Naresh and thrown.
The female child was thrown from a
height of five palm length. The female
child was picked up after being thrown.
There was no visible injury on the body of
female child. The clothes of the female
child and her body were covered with
dust. They took the female child to the
police station in the same clothes. No
blood was coming out from any part of
the body of the female child from
anywhere.
(Emphasis added)

33. On deeper scrutiny of the above
testimony of P.W.-1, it is apparent that
there is no inconsistency or contradiction
in his testimony that when P.W.-1 and his
family members were present in the hut,
all the accused persons came and
altercation/fight
took
place
for
constructing the said hut on the land in
dispute and thereafter all the accused had
beaten P.W.-1 Mahendra Prasad, P.W.-2
Rajendra Prasad, P.W.-5 Halkhori Saav
and P.W.-6 Kabutari by lathi due to
which they sustained simple injuries. As
per their medical examination reports and
testimony of P.W.-4 Dr. R.A. Mishra who
medically examined them, all the injuries
found on the bodies of the injured were
simple in nature and caused by blunt
object like lathi. The said testimony of
P.W.-1 has been supported by the
medical as well as other oral and
documentary evidence. However, in the
testimony of P.W.-1 to the extent that the
accused Ram Naresh first hit P.W.-6
Kabutari by lathi on her head and
snatched her female child from her lap
and threw her on the ground, there are
major contradictions.

34. Similarly, there is no inconsistency
or contradiction in the testimonies of the
other prosecution eye witnesses i.e. P.W.-2
Rajendra Prasad, P.W.3 Sarju Prasad, P.W.-
5 Halkhori Saav and P.W.-6 Kabutari who
are
consistent
throughout
in
their
examination-in-chief
and
the
crossexaminations that all the accused persons
had beaten them with their lathis as a result
of which they sustained simple injuries as
per their medical examination reports.
However, in their testimonies to the extent
that the accused Ram Naresh snatched the
female child from the lap of P.W.-6 Kabutari
and thereafter threw her on the ground due
to which she died later on the way of police
station, there are major contradictions,
which has also not been supported by the
medical evidence.

35. For examining the said prosecution
version that the accused Ram Naresh Gupta
after snatching the female child of P.W.-6
Kabutari from her lap, threw her on the
ground due to which she died on way to the
Police Station, on the litmus test, we are
required to refer relevant statements of the
prosecution eye witnesses:

"The
testimony
of
P.W.-1
Mahendra Prasad (cross-examination):

"रामनरेश ने कबूतरी को लाठी मारा तो वह गिर िई।
कबूतरी को मारने के बाद रामनरेश ने लड़की को छीन कर पटक गदया
गिर धक्का दे गदया गिससे वह गिर िई। उस लड़की को रामनरेश ने
बिल से खींचकर पटक गदया था। पााँच बीता की ऊाँचाई से लड़की।
को पटका था। पटकने के बाद लड़की उठाया था। लड़की के शरीर पर
कोई िागहरा चोट नहीं थी। लड़की कपड़ा व बदन में धूल लि िई थी।
थाने हम लोि लड़की के उसी कपड़े में लेकर िए थे। लड़की को कहीं
से खून नहीं गनकल रहा था।"

The
testimony
of
P.W.-2
Rajendra Prasad (cross-examination):

"चोट खाकर मैं िमीन पर गिर िया था। मेरी औरत
लाठी खाकर नहीं गिरी थी। िब रामनरेश ने मेरी लड़की को पटक
गदया और मेरी औरत को ढकेल गदया तब वह गिर िई थी। ऐसी बात
316 INDIAN LAW REPORTS ALLAHABAD SERIES
नही है गक रामनरेश मेरी लड़की को छीन रहे थे और मेरी औरत छीनने
नहीं दे रही थी। लड़की को रामनरेश ने िोर से पटका था यह धीरे से
यह मैं नही बता सकता। लड़की रामनरेश से 2-4 हाथ पर गिरी थी।
मुझे याद नही है गक लड़की मुुंह के बल गिरी थी या पीठ के बल
िमीन वहाुं ककरीली पथरीली नही थी। यह कहना िलत है गक मैं झूठ
बयान दे रहा ह ुं"

The testimony of P.W.-3 Sarju
Prasad (cross-examination):

"रामनरेश ने कबूतरी को एक लाठी सर पर मारा था।
लाठी की चोट से रािेन्द्र व हलखोरी गिर पड़े थे और कोई नही गिरा
था। इस मारपीट में कबूतरी नही गिरी थी, ढकेलने के बाद गिरी थी।
रामनरेश ने िब लीलावती को िेंका तो 2-1 कदम पर वह गिरी। यह
कहना िलत है गक रामनरेश आगद से रुंगिश के कारण मैं मुगजिमान
के गवरूद्ध िवाही दे रहा ह ुं।"

The
testimony
of
P.W.-5
Halkhori (cross-examination):

रामनरेश के लाठी लिने पर कबूतरी चोट खाकर गिरी
नहीं। दरोिा िी के बयान में यह बयान गक "वह चोट खाकर गिर िई
गक - - - मैंने नहीं' गदया था, अिर गलखा है तो कोई विह नहीं बता
सकता।
.........."लीलावती पहले से बीमार नहीं थी। 4-5 िीट ऊपर से
रामनरेश ने लीलावती को िोदी से खीचकर पटका था। यह कहना
िलत है गक मैं लीलावती को रामनरेश द्वारा िोद से खीचकर पटकने
वाली बात मैं िलत कह रहा ह ाँ। यह भी कहना िलत है गक मैं खेत
लेने के गलए कत्ल का झूठा मुकदमा चलाया और झूठा बयान गदया।"

The testimony of P.W.-6 Kabutari
(examination-in-chief):

रामनरेश ने हमको मारा था। मेरे माथा पर चोट लिी
थी। िब मुझे मारा तो उस समय मेरे िोद में मेरी लड़की लीलावती थी।
वह 2-2/2 वर्ष की थी। रामनरेश ने लड़की को मेरे िोद से छीनकर
पटक गदया।

(Cross-examination)

"मुगजिमान िब आए तब उस समय मैं मड़ई में थी।
िब मैं बाहर गनकली तो मारपीट हो रही थी। बाहर गनकलते ही रामनरेश
की लाठी मेरे सर पर लि िई। मारपीट के पहले मेरे ससुर, मैसुर? व
मेरे पगत से मुगजिमान में क्या बाते हुई थी मुझे नहीं मालूम। लाठी लिने
पर मैं गिर पड़ी थी। उसके बाद उठ िई थी। रामनरेश ने िब लाठी मारा
था उस समय लडकी मेरी िोद में ही थी। गकस गकस मुगजिम ने गकतनी
गकतनी लाठी चलाई थी मैं नही बता सकती। गकसकी लाठी कहा कहा
लिी मैं यह भी नही बता सकती।"

36.

Apart
from
the
above
contradictions
in
the
testimonies
of
prosecution
eye
witnesses,
the
said
prosecution version has not been supported
by the post-mortem examination report of
the deceased and also by the testimony of
P.W.-4 Dr. R.A. Mishra, who conducted the
post-mortem examination of the body of the
deceased.

37. P.W.-4, while conducting the postmortem examination of the body of the
deceased Lilawati, found that there was no
external injury on the body of the deceased.
On internal examination, this witness found
that the spleen was torn at a distance of 2 cm
x 1/2 cm. In his opinion the cause of death
was shock and haemorrhage caused by
rupture of an enlarged spleen. Further in his
opinion the above ruptured spleen could
have resulted in death.

38. In the cross examination, this
witness has opined that the deceased girl
was lean and thin and pale. Considering the
principles mentioned in the Modi Legal
Jurisprudence/Laws, he further opined that a
lot of force was required for a normal spleen
to rupture. He again opined that the enlarged
spleen sometimes bursts due to contraction
of the stomach or by coughing or sneezing.

39. The above testimony of P.W.-4
read with the post-mortem examination
report completely discards the prosecution
version that the accused Ram Naresh Gupta
has committed the murder of deceased
Lilawati by snatching her from the lap of her
mother Kabutari (P.W.-6) and thereafter
throwing her on the ground due to which she
died after short interval enroute to the Police
Station.

40. It is also impossible to believe that
if a man snatches a one-year-old girl from
her lap and throws her on the ground from
about five palm length, she will definitely
5 All. State of U.P. Vs. Sughar Singh
317
sustain any mark of injury. Absence of any
injury having been found on the body of the
deceased Lilawati makes the prosecution
version fabricated and doubtful.

45. Apart from the above, we may also
record that initially charge against the
accused Ram Naresh Gupta has been framed
by the trial court on 23.6.1981 simply under
Section 302 I.P.C. not under Section 302
read with Section 34 I.P.C., whereas on the
same day on 23.6.1981 another charge has
been framed by the trial court against the
accused-respondents Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
under Section 302 I.P.C. read with Section
34 I.P.C. and Section 323 read with Section
34 I.P.C. Such alteration in the charge
framed against the accused-respondents on
the same day has not been explained by the
prosecution,
which
also
makes
the
prosecution case doubtful.

46. However, after considering the
facts and circumstances of the case and
examining the findings recorded by the trial
court in acquittal of accused-respondents
Ram Naresh Gupta, Basdeo Gupta, Ram
Nath Gupta and Madan Gupta under Section
302/34 I.P.C., we are of the view that the
trial court has examined the evidence led by
the prosecution in correct perspective and
the finding returned by it that the
prosecution has not succeeded in proving its
case beyond reasonable doubt against the
accused-respondents
can
be
legally
sustained. The prosecution has not fully
established the guilt of the accusedrespondents on the basis of evidence led at
the stage of trial by the prosecution. The
acquittal
of
the
accused-respondents,
namely, Ram Naresh Gupta, Basdeo Gupta,
Ram Nath Gupta and Madan Gupta under
Section 302/34 I.P.C. is consequently,
affirmed.

47. We are also in full agreement with
the finding returned by the trial court that the
prosecution has fully established its case
beyond the reasonable doubt against the
accused-respondents under Section 323/34
of I.P.C.

48. In view of the aforesaid facts and
the findings recorded by us herein above, we
are of the firm opinion that the finding of the
Court below with regard to accusedrespondents, namely, Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta is correct and the guilt of the accusedrespondents, namely, Ram Naresh Gupta,
Basdeo Gupta, Ram Nath Gupta and Madan
Gupta under Section 323/34 I.P.C. has been
proved beyond reasonable doubt by the
prosecution, which is sustainable.

49. Consequently, in view of the
deliberations held above the Government
Appeal filed on behalf of the State stands
dismissed.

50. There shall be no order as to
costs.

51. Let a copy of this judgment be sent
to the Chief Judicial Magistrate, Mirzapur,
henceforth, for necessary compliance.
----------
(2024) 5 ILRA 317
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Government Appeal No. 205 of 1984

State of U.P. ...Appellant
Versus
Sughar Singh ...Respondent