# Sunil v. State of U.P - **Citation:** (2022) 8 ILRA 909 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-07-21 - **Case number:** Criminal Appeal No. 6079 of 2009 - **Bench:** Manoj Misra, Syed Aftab Husain Rizvi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-v-state-of-u-p-48952 - **Pages:** 17 ## Headnote (A) Criminal Law - Indian Penal Code, 1860 - Section 377 - Section 302 - The Code of criminal procedure, 1973 - Section 53-A, 173(8), 437-A - appeal against conviction - Murder - unnatural offence fouler the crime stricter the proof - howsoever strong suspicion might be it cannot par take the character of proof - absence of disclosure in the FIR about presence of a witness is not by itself a ground to reject his/her testimony if his/ her presence is otherwise natural.(Para - 20, 23 , ) Murder and unnatural offence upon child victim - confirmed by medical evidence - no forensic evidence to link appellant to the crime - ocular 910 INDIAN LAW REPORTS ALLAHABAD SERIES account of PW-1 untrustworthy and unreliable .(Para - 28,30 ) HELD:-Prosecution failed to prove charge against appellant beyond reasonable doubt. Trial court failed to evaluate and test prosecution evidence in correct perspective and took evidence as gospel truth. Judgment and order of trial court set aside. Accused-appellant acquitted of charge.(Para -31 ) Criminal Appeal allowed. (E-7) List of Cases cited:- ## Text _Characters 0–39,952 of 57,765. This is a partial read: ask again with offset=39952 for what follows._ 8 All. Sunil Vs. State of U.P. 909 gave its custody to its owner with condition that it shall be produced when required. It is quite possible that the witnesses, who were having custody of those daily use articles, were not instructed to produce them. In such circumstances, when PW-2 and PW-10 both deposed about existence of lantern light and there was no serious challenge to their deposition mere failure on the part of the prosecution to secure their production during trial is not sufficient to discard the oral testimony regarding the source of light. The ocular account of PW-2 and PW-10 gives a pictorial account of the incident and there appears no shadow of doubt that they had witnessed the incident. More so, when their ocular account is corroborated by medical evidence and by collection of plain/blood stained earth from inside the room, where the deceased was shot at, the spot was confirmed. The site plan discloses that the witnesses were in close proximity and could have witnessed the incident. No doubt, the testimony of PW-1 may not inspire our confidence with regard to his statement that two shots were fired and that he witnessed the shot being fired at the deceased through the window of that room, because PW-2 and PW-10 speak of solitary shot and the probability of him having escaped from the spot seeing the assailants is quite high. But that does not fail the prosecution case which finds support from the unshaken testimony of PW-2 and PW-10. 44. In view of the discussion above, we are in agreement with the view of the trial court that the prosecution has been successful in proving the guilt of the accused-appellant beyond the pale of doubt in respect of the offences punishable under Sections 452 and 302 I.P.C. There is, therefore, no merit in this appeal. The same is dismissed. The judgment and order of the trial court is affirmed. The accusedappellant is reported to be in jail. He shall serve out the sentence awarded by the trial court. 45. Let a copy of this order be sent to the trial court for information and compliance. ---------- (2022) 8 ILRA 909 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 21.07.2022 BEFORE THE HON'BLE MANOJ MISRA, J. THE HON'BLE SYED AFTAB HUSAIN RIZVI, J. Criminal Appeal No. 6079 of 2009 Sunil ...Appellant Versus State of U.P. ...Opposite Party Counsel for the Appellant: Sri P. C. Yadav, Sri Ajit Kumar Singh Solanki, Sri Manoj Yadav, Sri R.P.S, Chauhan, Sri Shailendra Pratap Singh Counsel for the Opposite Party: Govt. Advocate (A) Criminal Law - Indian Penal Code, 1860 - Section 377 - Section 302 - The Code of criminal procedure, 1973 - Section 53-A, 173(8), 437-A - appeal against conviction - Murder - unnatural offence fouler the crime stricter the proof - howsoever strong suspicion might be it cannot par take the character of proof - absence of disclosure in the FIR about presence of a witness is not by itself a ground to reject his/her testimony if his/ her presence is otherwise natural.(Para - 20, 23 , ) Murder and unnatural offence upon child victim - confirmed by medical evidence - no forensic evidence to link appellant to the crime - ocular 910 INDIAN LAW REPORTS ALLAHABAD SERIES account of PW-1 untrustworthy and unreliable .(Para - 28,30 ) HELD:-Prosecution failed to prove charge against appellant beyond reasonable doubt. Trial court failed to evaluate and test prosecution evidence in correct perspective and took evidence as gospel truth. Judgment and order of trial court set aside. Accused-appellant acquitted of charge.(Para -31 ) Criminal Appeal allowed. (E-7) List of Cases cited:- 1. S.D. Soni Vs St. of Guj., 1992 Supp (1) SCC 567 2. Lakshmi Singh Vs St. of Bihar, (1976) 4 SCC 394 3. Shankarlal Gyarasilal Dixit Vs St. of Maha., (1981) 2 SCC 35 4. Shahaja @ Shahajan Ismail Mohd. Shaikh VS St. of Maha., 2022 SCC OnLine SC 883 (Delivered by Hon'ble Manoj Misra, J. & Hon'ble Syed Aftab Husain Rizvi, J.) 1. This appeal is against the judgment and order dated 22.08.2009/24.08.2009 passed by the Additional Sessions Judge, Court No.1, Budaun in S.T. No.1151 of 2007, arising out of case crime no.155 of 2007, P.S. Kadar Chowk, district Budaun, whereby the appellant Sunil Singh has been convicted under Section 377 and 302 IPC and sentenced as follows: 10 years R.I. as well as fine of Rs.25,000/-, coupled with a default sentence of one year, under Section 377 IPC; and imprisonment for life as well as fine of Rs.25,000/-, coupled with a default sentence of one year, under Section 302 IPC. Both sentences to run concurrently. INTRODUCTORY FACTS 2. On 28.05.2007 a written report (Ex. Ka-1) was submitted by Raj Kumar (PW-1) at P.S. Kadar Chowk, Budaun, at 11.00 hours, giving rise to Case Crime No.155 of 2007 in respect whereof GD entry, vide report No.19 (Ex. Ka-13), and chik FIR (Ex. Ka-12) was prepared by S.I. Jagdish Prasad Verma (PW-6) . In the written report it was alleged that in the morning, at about 7 am, on 28.05.2007, the appellant Sunil, who is brother of informant's brother's Sadhoo, came to informant's house in a drunken condition. At that time, informant's Bua and informant's son Kamal (the deceased), aged about two years, were present and fritters (Pakaudi) were being cooked. Sunil had fritters and, as usual, took Kamal to play with him. But when he did not return with Kamal, informant, his brothers Krishna Pal and Tussam (PW-2), along with other villagers went in search of Kamal and Sunil. While they were searching for Sunil and Kamal, in the sugarcane field of Viram Singh, Sunil was noticed lying over Kamal and committing unnatural offence. When informant and others raised alarm, Sunil left Kamal and escaped. When informant went near Kamal, he found him dead. Alleging that the body is lying in the sugarcane field, the written report was lodged with a prayer to take appropriate action. 3. After registration of the FIR, inquest was conducted by Sri Nivas Yadav (PW-4) and an inquest report (Ex. Ka-2) was prepared. The inquest report was witnessed by Krishna Pal Singh (i.e brother of the informant - not examined), Raj Kumar (the informant- PW-1), Tussam Singh (another brother of the informant - PW-2), Ram Singh (not examined) and Rajveer Singh (not examined). As per the inquest report, the inquest was conducted in 8 All. Sunil Vs. State of U.P. 911 a sugarcane field and was completed by 13.30 hours on 28.05.2007. 4. The cadaver was sent for autopsy. Autopsy was conducted by Dr. D.V. Shakya (PW-5) on 28.05.2007 at 4.30 pm. The autopsy report (Ex. Ka-11) records:- Age - about two years. External Examination:- Average built body. R.M. passed off from upper limbs present in lower limbs. Eyes closed. Mouth closed. Conjunctivitis both eyes congested. Ante-mortem injuries. (1) An abrasion of size 9 cm x 5 cm on left side face near cheek lateral to angle of mouth. (2) An abraded contusion of size 11 cm x 3 cm present on front and both sides of neck at the level of thyroid cartilage underneath on dissection subcutaneous tissues and muscle found congested. Right side hyoid bone found fractured. Trachea found congested. (3) An abraded contusion of size 7 cm x 5 cm on top of left shoulder. (4) An abrasion of 1 cm x 1.5 cm on exterior aspect of left wrist joint. (5) Multiple abrasions in an area of 15 cm x 10 cm on back of chest both sides. (6) Lacerated wound of size 1 cm x 0.7 cm x muscle deep present on posterior margin of anus with clotted blood. (7) Abrasion of size 4 cm x 2 cm on back of left thigh just below left buttock. Internal examination: Skull: NAD Thorax:- Larynx and Trachea (see above). Lungs- congested. Abdomen:- Stomach contains 50 gram of semi digested food matter; Small intestine- Chyme and gases; Large intestine- faecal matter and gases. Cause of death:- asphyxia as a result of ante mortem injury over neck. Duration after death: About one day. Note:- Two glass slides smear prepared by anal swab for pathological examination of dead sperm and handed over to accompanying constable in a sealed condition. One sealed bundle of clothes containing Kachchha (under wear), half shirt, one Kardhani, one Gale Ki Mala, one Gale Ka Dhaga was handed over to constable. 5. During the course of investigation, on 28.05.2007, the investigating officer (PW-4) prepared a site plan (Ex. Ka-8) on the instructions of the informant and witnesses. The I.O. disclosed arrest of the appellant on 29.05.2007 and seized the underwear worn by him at the time of arrest of which a seizure memo (Ex. Ka-9) was prepared. The seizure memo indicated that there were semen stains on the underwear. After completing the 912 INDIAN LAW REPORTS ALLAHABAD SERIES investigation, the I.O. submitted charge sheet (Ex. Ka-10) on 09.06.2007. Cognisance was taken on the charge sheet. The case was committed to the court of session. The court of session on 11.02.2008 charged the appellant for offences punishable under Sections 377 and 302 IPC. The appellant pleaded not guilty and claimed trial. PROSECUTION EVIDENCE 6. During the course of trial, the prosecution examined six witnesses. Their testimony, in brief, is as follows:- 7. PW-1- Raj Kumar- informant. PW-1 stated that the accused Sunil, present in court, is younger brother of Sadhoo (wife's sister's husband) of informant's brother; Sunil resided in the same village and being a relative was a regular visitor of informant's house. In respect of the incident, PW-1 stated that on the date of the incident, at about 7 am, Sunil came to informant's house. At that time, informant's mother (Maya Devi - PW-3) and Bua (Bhagwati - not examined) were making fritters (Pakaudi); Kamal (the deceased - informant's son), aged about two years, was present and was being fed by informant's mother; Sunil was in a drunken state, he took the deceased in his lap and while playing with him, took him outside the house. When Sunil went out with informant's son, informant was sweeping the floor of his house, near its door. But, when Sunil did not return with informant's son, after about an hour, PW-1, his brothers Tussam (PW-2) and Krishna Pal as well as other members of the village went in search of Kamal and Sunil. During search operation, when they arrived near the southern boundary of Gulzari's field, they noticed from a distance of 20-25 paces that Sunil (the appellant) was lying over informant's son and committing unnatural offence. Seeing the informant and company, Sunil escaped towards west. PW1 stated that informant and others tried to catch Sunil but he ran away. When informant came near Kamal, he was found dead. In respect of the incident written report was given at the police station. PW-1 proved the written report, which was marked Ex. Ka-1. During cross examination, PW1 stated that the report was scribed at about 10 am; when the report was scribed, the body of the deceased was in the sugarcane field and was not shifted; that the body was not carried to the police station; that they reached the police station at quarter to 11 and after lodging the report, they returned on a bus but the police arrived at the spot on motorcycle and jeep. The police arrived before they could; and that the police sealed the body at about 11.15 am. Whereafter, he did not visit the police station. PW-1 stated that the police had interrogated him in the village at about 11 am. Immediately thereafter, in paragraph 9, PW-1 stated that the body was found in sugarcane field at around 11 am, whereas the accused had taken the deceased at about 7 am. PW-1 stated that he has no enmity with the accused; that the accused used to visit PW-1's house on a daily basis and used to play with the child (the deceased); that the house of the accused was 4-5 houses away from the house of the informant; that the accused was already married; that the accused used to visit PW1's house morning as well as evening; that the accused used to play with PW-1's son and sometimes used to take him away to play with him; sometimes the child used to stay with the accused for 2-4 hours; whereafter he used to return the child. PW- 8 All. Sunil Vs. State of U.P. 913 1 stated that, at the time, when the accused took away the victim, PW-1's mother Maya, his aunt Bhagwati and wife Neetu were there in the house. Immediately thereafter, PW-1 clarified that his wife had gone to offer prayers at a temple in front of his house about 10 paces away. At this stage, the witness was confronted with an omission in his written report that he was sweeping near the outer door of the house when victim was taken away by the accused. On being confronted with this omission in the written report, PW-1 stated that he had mentioned this fact to the I.O. but if the I.O. had not recorded this in the statement or in the written report, he cannot give a reason for it. On further query, PW-1 stated that the accused had never earlier come in a drunken condition to his house; that was the first day when he had come drunk. PW1 could notice that the appellant was drunk because of the smell coming from appellant's mouth. PW-1, however, clarified that the accused was not staggering and had fritters that were being cooked in his house. In respect of the time he took to sweep the floor on that day, PW-1 stated that he swept for about 30-45 minutes. When he got free from sweeping the house, he went to his field. In respect of dress worn by the accused at the time when he visited PW-1's house, PW-1 stated that the accused was wearing pant and shirt. In respect of when the search started, PW-1 stated, in paragraph 16 of his deposition, that when PW-1's wife arrived from temple and could not find the victim, search for the victim was made by PW-1. At that time, it must be quarter to 8 (7.45 am). PW-1 stated that first search was made in the village. The field where victim's body was found is about half to 3⁄4 km away from PW-1's house; the field was having sugarcane crop of the height of about one foot. However, the body of the victim was found on the boundary of the field. At that time, along with PW-1, his elder brother Tussam Singh (PW-2) and younger brother Krishna Pal (not examined) and other villagers were there. In paragraph 18 of his deposition, PW-1 stated as follows:- "tc ge cPps dks s ogkW bRryk feyh rks eS vkSj esjs lk<+w ogkW ls pys jkr es jkexaxk uko ls ikj dhA 9- mlds ckn cfYy;k ls vius lkys dh llqjky ls eksVj lkbfdy ekaxh esjk lkyk eq>s o v'kksd tks eqyfte dk lxk HkkbZ gS vkSj esjk lk<+w gS dks nsopjk rd NksM+dj x;k tc nsopjk NksM+k ml le; jkr ds nks cts Fks ogkW ls ge yksx cl ls vk;sA fQj ge yksx cnk;Ww ls VsEiks ls x;sA VsEiks ls ge 914 INDIAN LAW REPORTS ALLAHABAD SERIES yksx lqcg lk<+s Ng cts igqWp x;sA fQj ge ?kj igqWps ml le; cPps dh yk'k bZ[k ds [ksr es j[kh FkhA reke xkao okys o ?kj okys bdV~Bs FksA 10-Qksu ls ges bRryk feyh Fkh esjh llqjky ls esjk ?kj djhc 82 fdyksehVj nwj gSA** After stating as above, in paragraph 11 of his deposition, PW-2 denied the suggestion that he did not witness any incident. He also denied the suggestion that what he is saying is false. 9. PW-3- Smt. Maya Devi- mother of the informant. PW-3 stated that she is grand mother of the deceased; that on the date of the incident, at about 7 am, she was cooking fritters (Pakaudi) when Sunil arrived at her house. At that time, Tussam (PW-2), Tussam's wife and her Nanand (Bhagwati) were present and informant Raj Kumar was sweeping near the door of the house; that Sunil was drunk and his mouth was smelling; he asked for fritters (Pakaudi), ate them and took Kamal in his lap; and took him away. When Sunil did not return, within an hour, a search for Kamal and Sunil was made. Whereafter the body of Kamal was found in a sugarcane field. She stated that her sons Raj Kumar (PW-1), Tussam (PW3) had seen Sunil committing unnatural offence with the deceased. During cross examination, PW3 stated that Sunil was a regular visitor of her house and often use to take Kamal to play with him. Sometimes, he used to play with him for an hour or so and then bring him back. PW-3 stated that when she gave fritters (Pakaudi) to Sunil, Sunil was holding the hand of the child (victim). Child (victim) was also eating fritters (Pakaudi). At that time, it was 7 am. In paragraph 7 of her deposition, PW-3 stated as follows:- ^^7- lquhy ds tkus ds ,d ?kaVs ckn cPps dh ryk'k dh Fkh ryk'k djus dey ds firk o mldk rqLle x;s Fks cPps dh yk'k nksigj ds ckjg cts feyh Fkh ckjg ,d cts yk'k ykdj ?kj ds njokts ij j[k yh FkhA** After stating as above, in paragraph 8, PW-3 stated as follows:- ^^8- Fkkus bRryk nsus eS xbZ Fkh esjs lkFk esjk yM+dk jkt dqekj Hkh Fkkus x;k FkkA nks ^^9- idkSM+h eS ?kj es [kqys es lSd jgh FkhA tgkW eS idkSM+h lsad jgh Fkh og txg ?kj ds vUnj eq[; njokts ls fd/kj Fkh ;g eq>s irk ughA 10- idkSM+h lSdus okyh txg ?kj ds eq[; njokts ls nks pkj Ng dne gksxh tgkW pwYgk ty jgk Fkk og txg [kqyh Fkh eS idkSM+h Lo;a cuk jgh Fkh eSus njksxk th dks og txg crk vkSj fn[kk nh Fkh tgkW eS idkSM+h cuk jgh FkhA** After stating as above, PW-3 denied the suggestions that Sunil had not arrived at her house; that he had not taken her grand child Kamal; and that she was not in the village but was in her Maika and she came back after receiving information. 10. PW-4 - Sri Nivas Yadav - Investigating Officer. He stated that after registration of the case on 28.05.2007, he took over the investigation of the case, visited the spot, carried out inquest, prepared inquest report and documents for autopsy. He stated that he had sealed the body and handed it over to constable Rajesh Kumar and constable Veerpal Singh for autopsy; that he recorded the statement of witness Tussam Singh, inquest witnesses and thereafter prepared site plan at the behest of the informant and witnesses. He proved the site plan which was marked Ex. 8 All. Sunil Vs. State of U.P. 915 Ka-8. He stated that he arrested the accused on 29.05.2007 and seized and sealed the underwear worn by him at the time of arrest in respect whereof seizure memo (Ex. Ka-9) was prepared. He stated that after completing the investigation, he submitted charge sheet (Ex. Ka-10). During cross examination, he stated that he left the police station to go to the spot at 11 hours though the time is not mentioned in the case diary. He arrived at the spot at 12.30 hours. The spot was 10-11 kilometer away from the police station. He stated that he arrested the accused on 29.05.2007 from Yatri Shed near Kadar Chowk, Budaun. The arrest was made at about 5.30 am. He stated that he did not enter the time in the case diary when he returned after conducting the investigation on 28.05.2007. He stated that on 29.05.2007 he left the police station at 4.05 hours of which GD entry was made and returned at 6.55 hours. He stated that the underwear of the accused was sealed at the place where he was arrested. He stated that he had not mentioned in the case diary the clothes worn by the accused at the time of his arrest. The semen stains on the under wear were noticed after the accused was requested to remove his trouser. He stated that at the time when underwear was seized, there was no public witness available. He stated that when the appellant was arrested dawn was about to break. The arrest was made near the main road. He stated that he had not handed over copy of the seizure memo to the accused. He denied the suggestion that the accused was lifted from home. He stated that he had not prepared site plan of the place from where the accused was arrested and underwear recovered. In paragraph 13 of his deposition, PW-4 stated that at the spot he did not notice any blood. He also stated that he did not send the underwear for forensic examination till submission of charge sheet but sent it later though he does not remember the date as the case diary is not with him. He denied the suggestion that the investigation was not conducted in a fair manner. 11. PW-5 - Dr. D.V. Shakya. He proved the autopsy report and the injuries noticed therein, as already noticed by us above. He also specifically stated, in paragraphs 7 and 8 of his deposition, as follows:- ^^7- e`rd dh xqnk ls nks LykbZM rS;kj dj lkFk vk;s iqfyl dehZ dks lhYM dj LieZ dh tkap gsrq isFkksyksth Hksth x;hA 8- '''ko foPNsnu ds mijkUr lkFk vk;s iqfyl dehZ dks 9 iqfyl isij esjs }kjk gLrk{kfjr rFkk ,d lhYM diM+ks dk cUMy ftles ,d dPNk o ,d gkQ'kVZ] ,d dj/kuh] ,d xys dh ekyk xys dk /kkxk dqy 5 vnn lqiqnZ fd;s x;sA** In paragraph 10 of his deposition, PW-5 accepted the possibility of death of the victim at 7 am on 28.05.2007 as a result of ante mortem injuries noticed by him. During cross examination, PW5, in paragraph 12 of his deposition, stated as follows:- ^^12- iksLVekVZe dh QkbZfUMx ds vk/kkj ij e`rd dh ekSr fnukd 27-5-07 dh 'kke dks 4 cts gksuk laHko gSA** 12. PW-6 - S.I. Jagdish Prasad Verma. He is the person who prepared the GD entry of the written report and the chik FIR thereof which was exhibited on the basis of his statement. 916 INDIAN LAW REPORTS ALLAHABAD SERIES During cross examination, PW6 stated that to lodge the report, along with the informant, his brother Krishna Pal had also come to the police station. He stated that the I.O. had left for the spot, as per the GD entry, at 11 hours. The S.H.O. had returned to the police station on that day at 1300 hours. On that day, the I.O. had not deposited any goods at the Maalkhana. He stated that on that day, the I.O. had returned at the Thana in the night at 8.35 hours (8.35 pm). He denied the suggestion that the report was ante-timed. Statement of the appellant under Section 313 CrPC 13. The incriminating circumstances appearing in the prosecution evidence were denied by the appellant. He stated that he has been falsely implicated on account of enmity. TRIAL COURT FINDING 14. The trial court held that from the prosecution evidence it was established that the deceased was taken from home in the morning; that the accused was noticed committing unnatural offence with the deceased; that the autopsy report of the deceased confirms commission of unnatural offence; that the ocular account finds support in the medical evidence and therefore the prosecution was successful in bringing home the charge against the appellant. Consequently, the trial court convicted the appellant and sentenced him, as above. 15. We have heard Sri Shailendra Pratap Singh for the appellant; Sri Pankaj Saxena, learned AGA, for the State; and have perused the record. Submissions on behalf of the appellant 16. The learned counsel for the appellant submitted that the prosecution evidence does inspire confidence for the following reasons:- (i) PW-1, who states that the victim was taken from home at 7 am in his presence, has not made any such statement in the written report and had also not given any such statement to the investigating officer during the course of investigation. In the site plan also his presence at the house, when the deceased was allegedly taken by the appellant, is not disclosed. Therefore, his testimony is not reliable in respect of victim being taken from home by the appellant at 7 am; (ii) In so far as PW-1's testimony that he saw the appellant committing unnatural offence with the deceased in the sugarcane field is concerned, the same appears doubtful. Firstly, because that spot was far away from his house, and, secondly, it is unbelievable that a child two years of age could sustain an onslaught that long. Notably, the child was allegedly taken from home at 7 am and was discovered by about 11 am. Interestingly, the FIR is also lodged at 11 am. All of this would suggest that after discovery of body the story was developed on suspicion. Further, PW-1 states that he was with his brother Tussam (PW-2) and Krishna Pal when he noticed the accused lying over the child and committing unnatural offence. Tussam (PW-2) in his testimony, during crossexamination, stated that he was attending Bhagwat at his Sasural and on receipt of information about the incident, he came and saw the body of the deceased in the field. The testimony of PW-2 therefore runs contrary to that of PW-1. The other witness Krishna Pal has not been examined. Further, from the testimony of PW-1 it is clear that by the time he arrived at the spot, the accused had escaped more so because they were searching by loudly calling the 8 All. Sunil Vs. State of U.P. 917 name of the victim. The mode of search would, for sure, alert the accused to effect his escape from the scene well in advance. Thus, the testimony of PW-1 is not wholly reliable and cannot on its own form the basis of conviction. (iii) The testimony of PW-2 demolishes the prosecution case as it not only contradicts the statement of PW-1 with regard to PW-2 accompanying PW-1 to the spot and witnessing the accused committing the crime but also probabilizes the occurrence of the incident on previous day evening i.e. evening of 27.05.2007, which is in sync with the autopsy report and the statement of the autopsy surgeon (PW-5) made during cross-examination; (iv) The testimony of PW-3 to the effect that deceased was taken by appellant from home does not inspire confidence because her presence at home is neither disclosed in the written report nor in the site plan. She also could not convincingly answer the question as to where she was cooking fritters when, allegedly, the victim was taken by the appellant while she was making fritters. In fact, she goes on to shatter the prosecution case by stating that after the body of the deceased was found, the same was brought to the house, between 12.00 to 13.00 hours, and kept at the door of the house when, otherwise, the prosecution case is that the inquest was conducted at the spot in the field and, as per the inquest report, the body was sealed at 13.30 hours. All of this would suggest that either PW-3 was not a witness or that the case was developed after discovery of the body. The testimony of PW-3 is therefore not at all reliable; (v) Prosecution has suppressed an important witness i.e. informant's Bua (Bhagwati), whose presence alone was shown in the house both in the written report (Ex-Ka-1) as well as the site plan (Ex. Ka-8) yet, she has not been examined. (vi) The ocular account appears in conflict with the medical evidence, inasmuch as, according to the prosecution case, the deceased was taken from home at 7 am on 28.05.2007, whereas, the autopsy report which was prepared on 28.05.2007 at 4.30 pm estimates occurrence of death a day before and the Autopsy Surgeon, during crossexamination, accepted the possibility of occurrence of death in the evening of 27.05.2007 at about 4.30 pm. 17. The learned counsel for the appellant submitted that this is a case where the appellant was a regular visitor of the house of the informant. He was admittedly pally with the child (i.e. the deceased) and used to play with him. The deceased went missing and therefore suspicion fell on the appellant. On the basis of this suspicion, the prosecution story was developed. If there had been any truth in the prosecution story, the anal swab slides, clothes of the deceased and the underwear of the appellant would have been sent for forensic examination in the true spirit of the provisions of Section 53-A of the Code of Criminal Procedure. Admittedly, the doctor had taken the anal swab slides and had handed it over to the police personnel for forensic examination. The clothes of the deceased were also sealed and handed over to the police but they were not sent for forensic examination. The prosecution is, therefore, guilty of suppressing the best evidence. Not only forensic evidence was absent but even the witnesses of fact, namely, Krishna Pal (alleged eye witness present with PW-1) and Bhagwati (whose presence alone was shown in the house, both in the written report and in the site plan), have not been produced. Under these circumstances, there is a ring of doubt encircling the prosecution case entitling the appellant to its benefit. Learned counsel for 918 INDIAN LAW REPORTS ALLAHABAD SERIES the appellant therefore submits that the appeal be allowed and the judgment and order of the trial court be set aside. Submissions on behalf of the State 18. Per contra, learned AGA, submits that the accused could not demonstrate that the informant side had any animosity with the accused. Further, the presence of the prosecution witnesses of fact is natural in their house. In these circumstances, there was no good reason for the prosecution witnesses to lie. The prosecution story is straightforward which is that the accused was a regular visitor of the house and used to play with the child. On the date of the incident, he was drunk, he took the child and when a search for the child was made, his body was found and the accused was found lying over the body of the child and seeing the informant and the witnesses, he escaped. The autopsy report clearly disclosed that the victim was subjected to anal intercourse. The medical evidence corroborates the ocular account to that extent. In so far as the estimate in respect of time of death disclosed in the autopsy report is concerned, it is well settled that that estimate cannot overrule a reliable ocular account. Moreover that estimate is on the basis of rigor mortis which in case of a child sets early and passes off early, therefore it cannot be taken as a ground to discard the ocular account. Learned AGA also submitted that the testimony of PW-2 cannot be utilised to discredit the testimony of PW-1, inasmuch as, PW-2 is related to the accused and therefore, his testimony may have deliberately come to rescue the accused. Similarly, the testimony of PW-3 that the body was brought to the door of her house cannot be utilised to demolish the testimony of PW-1, inasmuch as, PW-3 might have got confused. Learned AGA also submitted that assuming that there was no forensic examination/DNA profiling of the anal swab smear slides/clothes collected/recovered from the the body of the deceased and the underwear or other body fluid collected from the accused, but that, by itself, would not make the prosecution story doubtful or unacceptable, particularly, when the same finds support from other evidences on record. 19. Learned AGA also submitted that even if the name of PW-1 and PW-3 is not mentioned in the written report as person present in the house when the deceased was taken from home, their testimony cannot be disbelieved as their presence in their own home is natural and therefore, in ordinary course, they would have witnessed the deceased being taken from home by the accused. Learned AGA submits that this is a case where the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt therefore the conviction and sentence recorded by the trial court deserves to be sustained and the appeal is liable to be dismissed. ANALYSIS 20. Having noticed the rival submissions and the entire prosecution evidence, before we proceed to evaluate the evidence we must bear in mind the well settled legal principle that is to be applied while appreciating evidence concerning brutal/ heinous crimes. The principle is that fouler the crime stricter the proof (vide S.D. Soni v. State of Gujarat, 1992 Supp (1) SCC 567; Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394). Further, different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with 8 All. Sunil Vs. State of U.P. 919 brutal crimes, to spin stories out of strong suspicions (vide Shankarlal Gyarasilal Dixit Vs. State of Maharashtra: (1981) 2 SCC 35, para 33). On scanning the prosecution evidence of the instant case it is noticed that there is no serious challenge to the prosecution testimony that the appellant was a regular visitor of informant's house and was very pally with the child (i.e. the deceased). He used to play with the child for hours and sometimes used take the child with him and after playing with him for hours used to return him back. Notably, the appellant resided in the same village few houses away. In this backdrop any untoward incident of the kind noticed in this case would naturally trigger a suspicion on the appellant putting him under the scanner. But, howsoever strong suspicion might be it cannot partake the character of proof. Thus, it would not be appropriate on our part to give undue weightage to the circumstance, as canvassed by the learned AGA, that since there is no proven enmity between the appellant and the complainant party, why would they falsely implicate the appellant. Rather, it would be appropriate on our part to evaluate the prosecution evidence to determine whether it succeeds in proving the guilt of the appellant beyond reasonable doubt. 21. In a recent decision of the Supreme Court, dated July 14, 2022, in Criminal Appeal No.739 of 2017 of 2017 : Shahaja @ Shahajan Ismail Mohd. Shaikh V. State of Maharashtra, 2022 SCC OnLine SC 883, in paragraph 27 of the judgment, judicially evolved principles for appreciation of ocular evidence were summarised. As to what ought to be the approach of the Court while appreciating the evidence, in sub para (I) of para 27, it was observed: "I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief." After enumerating several principles, the key principle to be borne in mind while assessing the value of the evidence of an eyewitness was laid down, in paragraph 28 of the judgment (supra), as follows: "28. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. 22. In the instant case, apart from the medical evidence, the prosecution evidence 920 INDIAN LAW REPORTS ALLAHABAD SERIES can be divided into two parts. The first is with regard to a circumstance, which is, that the appellant took away the child from home in the morning at 7.00 am on 28.05.2007 and the second is, the ocular account with regard to witnessing the appellant committing unnatural offence in the field. In respect of the circumstance i.e. child being taken from home, key witnesses are PW-1 and PW-3 whereas, in respect of ocular account of the crime the witnesses are PW-1 and PW-2. Before we proceed to deeply evaluate their testimony on the above two aspects, it would be worthwhile to notice the key features in the prosecution evidence. These are:- (a) In the written report (Ex. Ka1), PW-1 had disclosed the presence of his aunt (Bua) at the time when the deceased was taken from home by the accused. The written report does not disclose the presence of any other person in the house when the deceased was taken from home by the accused. Similarly, the site plan (Ex. Ka-8) prepared at the instance of PW-1 and the other witnesses discloses only the presence of PW-1's aunt in the house; (b) The statement of PW-1, during the course of trial, that he was sweeping at the door of his house when the appellant took away the deceased from home is made for the first time in court. The written report as well as the statement of the informant during the course of investigation omits to mention that fact. PW-1 was confronted with this omission; (c) According to PW-1, in paragraph 16 of his deposition, search for the child started, upon his wife's return from temple within 45 minutes to one hour of the appellant walking away with the child; (d) The eye witness account with regard to the accused-appellant being noticed committing unnatural offence in the sugarcane field is rendered by PW-1 only, because PW-2, who is stated to have accompanied PW-1 to the spot, backs out during cross-examination and claims that he arrived from his sasural on getting information about the incident. PW-2 has not been declared hostile by the prosecution to enable a cross-examination by the prosecution; (e) The presence of PW-3 at the place from where the deceased was taken away by the appellant is neither disclosed in the written report (Ex. Ka-1) nor in the site plan (Ex. Ka-8). Rather, a suggestion is made to her that she was at her Maika. Though, PW-3 denied the suggestion but when closely cross-examined as to the place where she was making fritters (Pakaudi), PW-3 falters. Not only that, PW3 makes a statement which runs contrary to the prosecution case, which is, that the body of the deceased after being found in the field was brought at the door of her house between 12.00 and 13.00 hours when, according to the prosecution, the body was left at the spot and was sealed at 13.30 hours; (f) The autopsy report as regards the duration of time since death estimates death a day before i.e. on 27.5.2007. Though it might not be conclusive but throws a possibility of death to have occurred much before the time when the deceased was taken from home. This possibility gets corroboration from the testimony of PW-2 which discloses that information about the incident was received in the evening of the preceding day and upon receipt of the information, PW-2 came back from his Sasural and on 8 All. Sunil Vs. State of U.P. 921 reaching the village he noticed the body in a sugarcane field; (g) There is no forensic report in respect of anal swab smear slides, the clothes recovered from the deceased and the underwear recovered from the appellant even though the incident is of a date post the insertion of section 53-A in the Criminal Procedure Code, 1973. 23.