# Ubhan Yadav @ Abhai Kumar Yadav v. State of U.P

- **Citation:** (2021) 6 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-02
- **Case number:** Criminal Appeal No. 1202 of 2014
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ubhan-yadav-abhai-kumar-yadav-v-state-of-u-p-47134
- **Pages:** 29

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 374 - Section
366 - Death Reference - Indian Penal
Code, 1860 - Sections 302 376 & 201
I.P.C. - Indian Evidence Act, 1872 -
Section
25,26,27
-
Section
27
only
becomes applicable when the confession
St. ment leads to the discovery of a new
fact
-Appeals
from
conviction
,
circumstantial evidence - All links in the
chain of circumstances must be prove
beyond
reasonable
doubt
-
proved
circumstances must be consistent only
with the hypothesis of guilt of the accused
alone and none else, as also inconsistent
with his innocence.(Para - 42,51)

(B) Constitution of India - Article 20(3) -
no
accused
of
an offence
shall
be
compelled into being a witness against
himself - confession made by any person
to a police officer is inadmissible as
evidence, except for the singular cases
where
such
St.
ment
results
in
a
consequent discovery of fact. (Para - 46,47)

(C) Practice and Procedure - presumption of
certain facts by the Courts in the absence
of direct evidence of an offence has been
an accepted practice - presumption must
be an inference of fact drawn from
another proved fact that is likely to flow
as a common course of natural events,
human
conduct
and
public/private
business vis-avis the facts - Courts in
drawing such presumption must look at
the facts from an angle of common sense
and common experience of man. (Para - 54)

In the present case, 12 years' old girl has been
sexually assaulted and done to death by
throttling - fact remains -whether it was the
accused-appellant who has committed the
alleged crime appears to be doubtful .

HELD:- The prosecution failed to prove its case
beyond reasonable doubt. The incident does not
appear to have happened in the manner in
which the prosecution want the Court to believe
it had happened. Therefore, the accusedappellant becomes entitle for the benefit of
doubt and the appeal deserves to be allowed.
(Para -71)
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
61
Criminal Appeal allowed. (E-6)

List of Cases cited:-

## Text

_Characters 0–39,772 of 100,080. This is a partial read: ask again with offset=39772 for what follows._

60 INDIAN LAW REPORTS ALLAHABAD SERIES
on 17.7.2011, thus, finds corroboration from
the injuries on the body of the deceased and
the sequences of the events and manner of
incidents as claimed by the prosecution. PW1, the informant and PW-2 neighbour of the
deceased
have
fully
supported
the
prosecution case. We are fully satisfied that
the trial court did not commit any error in
convicting the appellants. Therefore, we
affirm the conviction and sentence awarded
to the appellants and hold them guilty for
offence punishable under Section 302 read
with Section 34 I.P.C. We, thus, do not find
any merit in this appeal. The criminal appeal
is dismissed accordingly. The appellants are
in jail.

Let a certified copy of this judgment
with record be sent to the trial court for
information forthwith. The office is directed
to provide the certified copy of the judgment
separately to the appellants promptly.
----------
(2021)06ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 1202 of 2014
and
Capital Sentence No. 6 of 2014

Ubhan Yadav @ Abhai Kumar Yadav
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Anand Dubey, Arvind Kumar, Piyush Kumar
Singh, Santosh Kumar Kanaujia

Counsel for the Respondent:
Govt. Advocate
(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 374 - Section
366 - Death Reference - Indian Penal
Code, 1860 - Sections 302 376 & 201
I.P.C. - Indian Evidence Act, 1872 -
Section
25,26,27
-
Section
27
only
becomes applicable when the confession
St. ment leads to the discovery of a new
fact
-Appeals
from
conviction
,
circumstantial evidence - All links in the
chain of circumstances must be prove
beyond
reasonable
doubt
-
proved
circumstances must be consistent only
with the hypothesis of guilt of the accused
alone and none else, as also inconsistent
with his innocence.(Para - 42,51)

(B) Constitution of India - Article 20(3) -
no
accused
of
an offence
shall
be
compelled into being a witness against
himself - confession made by any person
to a police officer is inadmissible as
evidence, except for the singular cases
where
such
St.
ment
results
in
a
consequent discovery of fact. (Para - 46,47)

(C) Practice and Procedure - presumption of
certain facts by the Courts in the absence
of direct evidence of an offence has been
an accepted practice - presumption must
be an inference of fact drawn from
another proved fact that is likely to flow
as a common course of natural events,
human
conduct
and
public/private
business vis-avis the facts - Courts in
drawing such presumption must look at
the facts from an angle of common sense
and common experience of man. (Para - 54)

In the present case, 12 years' old girl has been
sexually assaulted and done to death by
throttling - fact remains -whether it was the
accused-appellant who has committed the
alleged crime appears to be doubtful .

HELD:- The prosecution failed to prove its case
beyond reasonable doubt. The incident does not
appear to have happened in the manner in
which the prosecution want the Court to believe
it had happened. Therefore, the accusedappellant becomes entitle for the benefit of
doubt and the appeal deserves to be allowed.
(Para -71)
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
61
Criminal Appeal allowed. (E-6)

List of Cases cited:-

1. Anokhilal Vs St.of M.P. , 2019 SCC OnLine SC
1637

2. Shadaan Ansari Vs St.of U.P. & ors. , 2020
SCC OnLine All 19

3. Gargi Vs St. of Har. ,(2019) 9 SCC 738

4. Chandmal Vs St. of Raj., (1976) 1 SCC 621

5. St. of U.P. Vs Hari Mohan, (2000) 18 SCC 598

6. Raj Kumar Singh Vs St. of Raj., (2013) 5 SCC
722

7. Ganpat Singh Vs St. of M.P. ,(2017) 16 SCC
353

8. Baiju Kumar Soni Vs St. of Jharkh.,(2019) 7
SCC 773

9. Rajendra Vs St. (NCT of Delhi), (2019) 10
SCC 623

10. Hanumant Govind Nargundkar Vs St. of M.P.
,AIR 1952 SC 343

11. Shivaji Shahabrao Bobade Vs St. of Mah.
,(1973) 2 SCC 793

12. CBI Vs Mahender Singh Dahiya ,(2011) 3
SCC 109

13. Ramesh Harijan Vs St. of U.P. ,(2012) 5 SCC
777

14. Sujit Biswas Vs St. of Assam ,(2013) 12 SCC
406

15. Anjan Kumar Sarma Vs St. of Assam ,(2017)
14 SCC 359

16. Kali Ram Vs St. of H.P. ,(1973) 2 SCC 808

17. Hanumant Govid Nargundkar Vs St. of M.P.
,AIR 1952 SC 343

18. Gurpreet Singh Vs St. of Har. ,(2002) 8 SCC
18
19. Ram Singh Vs Sonia ,(2007) 3 SCC 1

20. Musheer Khan Vs St. of M.P. ,(2010) 2 SCC
748

21. Shivaji Sahabrao Bobade Vs St. of Mah.
,(1973) 2 SCC 793

22. St. of Karn. Vs J. Jayalalitha ,(2017) 6 SCC
263

23. Ashok Debbarma Ram Vs St. of Tripura
,(2014) 4 SCC 747

24. St. of U.P. Vs Deoman Upadhyay ,AIR 1960
11 SCC 1125

25. Bodhraj @ Bodha Vs St. of J&K, (2002) 8
SCC 45

26. Aghnoo Nagesia Vs St. of Bihar, AIR 1966 SC 119

27. Vasanta Sampat Dupare Vs St. of Mah.,
(2015) 1 SCC 253

28. Ishwari Lal Yadav Vs St. of Chattisgarh
,(2019) 10 SCC 437

29. Limbaji Vs St. of Mah., (2001) 10 SCC 340

30. St. of A.P. Vs Vasudeva Rao ,(2004) 9 SCC
319

31. Ram Chander Vs St. f Har., (1981) 3 SCC
191

32. Laxman Naik Vs St.of Orissa , (1994) 3 SCC
381

33. Dhananjoy Chatterjee @ Dhana Vs St.of
W.B. , (1994) 2 SCC 220

34. Shivaji @ Dadya Shankar Alhat Vs St.of Mah.
, (2008) 15 SCC 269

35. Krishan Kumar Malik Vs St. f Har., (2011) 7
SCC 130

36. Aghnoo Nagesia Vs St. of Bihar, AIR 1966
SC 119

37. Vsanta Sampat Dupare Vs St. of Mah.,
(2015) 1 SCC 253
62 INDIAN LAW REPORTS ALLAHABAD SERIES
38. Ishwari Lal Yadav Vs St. of Chhatt., (2019)
10 SCC 437

39. St. of UP Vs Deoman Upadhyay, AIR 1960
SC 1125

40. Limbaji Vs St. of Mah., (2001) 10 SCC 340

41. St. of A.P. Vs Vasudeva Rao, (2004) 9 SCC
319

42. Ram Chander Vs St. of Har., (1981) 3 SCC
191

43. St .of Raj. Vs NI, (1997) 6 SCC 162

44. Sunil Kundu & anr. Vs St. of Jharkhand ,
2013 (4) SCC 422

45. Mahesh Tigga Vs St. of Jhar. ,(2020) 10 SCC
108

46. Satbir Singh & Vs anr. St. of Har., Criminal
Appeal No.1735-1736 of 2010

47. Reena Hazarika Vs St. of Assam, (2019) 13
SCC 289

(Delivered by Hon'ble Rajeev Singh, J.)

(1) The criminal appeal filed by the
accused-appellant namely Ubhan Yadav @
Abhai Kumar Yadav under Section 374 (2)
Cr.P.C. and the Death Reference under
Section 366 Cr.P.C., are decided by way of
common judgment.

(2) Heard Shri Santosh Kumar
Kanaujiya and Shri Arvind Kumar Verma,
learned counsels for the accused-appellant
(Ubhan Yadav @ Abhai Kumar Yadav) as
well as Shri Vimal Kumar Srivastava,
learned Government Advocate assisted by
Shri Chandra Shekhar Pandey, learned
counsel for the State and perused the lower
court record.

(3) As in the case in hand, the
accused-appellant namely Ubhan Yadav @
Abhay Kumar Yadav was tried by the trial
court and convicted under Sections 302 376
& 201 I.P.C. whereby he was sentenced to
be hanged, by the neck, till death for
offence under Section 302 I.P.C., sentenced
for life imprisonment and with a fine of
Rs.6,000/- for the offence under Section
376(2)(F), in case of non payment of fine,
additional
one
year
of
Simple
Imprisonment, and sentenced for five years
of Rigorous Imprisonment with a fine of
Rs.4,000/- for the offence under Section
201 I.P.C., in case of non payment of fine,
additional four months of S.I.

(4) After convicting the accusedappellant for sentence of death, reference
was made by the trial court, which was
registered as Capital Sentence No.06 of
2014, and the same is lying before us for
confirmation of such sentence and death.
The accused-appellant has challenged the
judgment and order dated 29.08.2014
passed by Shri Satya Prakash Naik,
Additional Sessions Judge, Court No.1,
Barabanki in S.T. No.266 of 2013 arising
out of Case Crime No.101 of 2013, under
Sections 302, 201 & 376 I.P.C., P.S. Dewa,
District Barabanki, in Criminal Appeal
No.1202 of 2014 (Ubhan Yadav @ Abhay
Kumar Yadav Vs. State of U.P.).

(5) As per the prosecution case, on
30.03.2013 at 21:10 hours, Prem Nath
Singh came to the Police Station Dewa,
District Barabanki along with Tung Nath
Singh S/o Late Raj Bahadur Singh, Bal
Govind Yadav & Bechu Singh, and given a
written complaint with the allegation that
his younger daughter, aged about 12 years,
went out from her home on 30.03.2013 at
02:00 p.m. but she did not come back, then
due to worry the family members started
searching her in the neighbour houses, but
no one has responded, thereafter, the family
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
63
members and other villagers also started
searching her in the adjoining forest & field
situated in the north side of the village, then
her body was found under black berry
(Jamun) tree of the grove of Pratap Singh
and some visible signs of injury was found
on the neck on the body and some nail
scratches were also seen on her hand, her
pair of leggings was not found on her body
and it seems that with intention to outrage
her modesty, she was killed.

(6) On the basis of aforesaid
complaint of Prem Nath Singh (informant),
F.I.R. as Case Crime No.101 of 2013,
under Sections 302 I.P.C., P.S. Dewa,
District
Barabanki
was
lodged
on
30.03.2013 at 21:10 hours in which the
time of incident is shown as 14:00 hours
(02:00 p.m.) dated 30.03.2013. Chick F.I.R.
was prepared and the incident was also
entered into General Diary as G.D. No.41
at 21:10 hours for registering the F.I.R. The
S.H.O. concerned along with his team
reached on the spot and started the inquest
of body of the deceased on 30.03.2013 at
22:15 hours and concluded the same at
23:55 hours in the light of seven Petromax
and head light of one tractor, and the body
was sent for postmortem along with
requisite papers. The postmortem of the
body of deceased was conducted on
31.03.2013 at 02:00 p.m., in which seven
ante-mortem injuries were found on the
body of the deceased, and the cause of
death opined by the team of doctors is
Asphyxia, as a result of ante-mortem
throttling.

(7) The Investigating Officer prepared
Parcha No.1 on 30.03.2013 by copying the
Chick F.I.R. in the Case Diary and
recorded the statement of Head Constable
Ramraj (Chick F.I.R. writer), and also
mentioned that the inquest of the body of
the deceased was conducted in the proper
light of seven petromax and head light of
one tractor, as the place of incident was
protected, therefore, the proceeding was
deferred for next date. On 31.03.2013,
Parcha No.2 of Case Diary was prepared by
the Investigating Oficer by copying the
contents of the inquest and also recorded
the statement of the witnesses of the
inquest, inspected the place of incident and
prepared the site plan on the pointing out of
the informant as well as witnesses of the
inquest, and also prepared a recovery
memo of the sleepers, under garments and
leggings of the deceased; he also recorded
the statement of witnesses of recovery
memo and the statements under Section
161 Cr.P.C. of Smt. Siyavati (mother of the
deceased), Uday Pratap Singh (brother of
the deceased) and Kumari Anjali Singh
(sister of the deceased), and the statement
of witnesses of last seen namely Mohd.
Khaleel, Shri Pawan Kumar Singh and Shri
Vinay Prakash Singh were also recorded. In
the statements of Mohd. Khaleel, Pawan
Kumar Singh and Vinay Prakash Singh, the
evidence of last seen of accused, near the
place
of
incident,
was
found.
On
01.04.2013, Parcha No.3 was prepared by
the Investigating Officer, in which the
arrest of accused-appellant is shown and
his confessional statement under Section
161 Cr.P.C. was also recorded by the
Investigating Officer; on pointing out of the
accused, one notebook was recovered from
the place of the incident and the recovery
memo of the notebook was prepared, and
the Investigating Officer also prepared the
site plan in relation to the recovery of the
notebook.
On
02.04.2013,
accusedappellant was medically examined and his
pubic hair, nails and Penile Wash were
taken into possession, and this fact was
mentioned in the Parcha No.4 of the Case
Diary dated 02.04.2013. Parcha No.5 was
64 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared by the Investigating Officer on
03.04.2013. On 04.04.2013, Parcha No.6
was prepared by the Investigating Officer
and he recorded the statement of Shiv
Bahal Yadav, Shri Balram Singh and Shri
Guddu under Section 161 Cr.P.C. On
07.04.2013, Parcha No.8 was prepared by
the Investigating Officer, by which the
charge sheet was prepared and forwarded
to the court concerned.

(8) Learned Chief Judicial Magistrate,
Barabanki committed the case, vide order
dated 17.05.2013, to the court of session.
Thereafter, the case was registered as S.T.
No.266 of 2013 (State vs. Ubhan Yadav @
Abhay Kumar Yadav) arising out of Case
Crime No.101 of 2013, under Sections 302,
201, 376A I.P.C., P.S. Dewa Kotwali,
District Barabanki.

(9) As it is evident from the order sheet
that during the course of trial, the accusedappellant was not in a position to engage the
counsel to defend him, then the order was
passed on 16.07.2013, by the trial court, for
appointing the Amicus Curiae/counsel for the
accused-appellant and the order sheet reveals
that on 30.07.2013, Mr. Yugal Kishore
Srivastava, Advocate was informed that he
has been appointed as Amicus Curiae to
pursue the case of accused-appellant. On the
same day, charges were framed by the court
below.

(10) The prosecution relied on the oral
testimony of PW-1 Prem Nath Singh
(informant), PW-2 Vinay Prakash (witness of
last seen), PW-3 Mohd. Khaleel (witness of
last seen), PW-4 Dr. Brijesh Kumar
Srivastava
(conducted
medical
of
the
accused-appellant and postmortem of the
body of the deceased), PW-5 Dr. Shipra
Singh (member of the postmortem team),
PW-6
Constable
Ramraj,
PW-7
Smt.
Siyawati (mother of the deceased) and PW-8
M.S. Khan (Investigating Officer).

It is also evident from the record that the
pubic hair, nails and Penile Wash (fluid
spilled by washing the genital part) of the
accused-appellant and pubic hair, nails &
under garments of the deceased were sent to
Forensic
Science
Laboratory
U.P.,
Mahanagar,
Lucknow
for
chemical
examination and report of the aforesaid
articles. After examination, report was
submitted by Deputy Director FSL, Lucknow
on 03.02.2014, which is available on record,
but the same was not proved by the
prosecution.

(11) The prosecution also relied on
sixteen documentary evidences i.e. written
complaint of the informant (Ext. Ka-1),
inquest of the body of the deceased (Ext.
Ka-2), postmortem of the body of the
deceased (Ext. Ka-3), medico-legal report
of the accused-appellant (Ext. Ka-4), F.I.R.
of the incident (Ext. Ka-5), General Diary
in relation to the registration of F.I.R. of the
incident (Ext. Ka-6), Report of Chief
Medical Superintendent, District Hospital
Barabanki for postmortem of the body of
the deceased and for providing the
postmortem report of the deceased, her
clothes etc. (Ext. Ka-7), police form No.13
(Ext. Ka-8), challan last photo (Ext. Ka-9),
sample seal (Ext. Ka-10), letter to Reserve
Inspector of Police Line Barabanki (Ext.
Ka-11), Site plan prepared on 31.03.2013
(Ext. Ka-12), recovery memo in relation to
under garments, leggings and sleepers of
the deceased dated 31.03.2013 (Ext. Ka13), recovery memo in relation to the
notebook of the accused-appellant dated
01.04.2013 (Ext. Ka-14), site plan related
to recovery of notebook of the accusedappellant (Ext. Ka-15) and charge sheet
dated 07.04.2013 (Ext. Ka-16).
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
65

(12) The statement of accused under
Section 313 Cr.P.C. was recorded by the
trial court and after hearing the arguments
of the parties, the judgment and order dated
29.08.2014, which is under challenge, was
passed by the trial court.

(13) Learned counsel for the accusedappellant has submitted that he has been
falsely implicated in the present case. He
further submitted that learned trial court
failed to appreciate the evidence in correct
perspective. He further submitted that as
per the prosecution case, the deceased went
out from her home on 30.03.2013 at 02:00
p.m., which was categorically stated by
PW-7 Smt. Siyavati (mother of the
deceased) and she also stated that when the
deceased did not come back till 04:00 -
05:00 p.m., then they started searching for
her and she also informed to her husband
who was working in the spinning mill and
came to home within half an hour and
thereafter, he along with others also started
searching, then the body of deceased was
found in the grove of Pratap Singh under
the black berry tree.

(14) Learned counsel for the accusedappellant has further submitted that Vinay
Prakash (PW-2) was produced before the trial
court, who categorically stated before the
court below that the incident was of
30.03.2013 and on the said date when he was
coming back after watching his agricultural
field in between 02:00 - 02:30 p.m., he saw
that co-villager Ubhan Yadav @ Abhay
Kumar
Yadav
(accused-appellant)
was
coming out from the grove of Pratap Singh
and going towards the village from the west
side of Khaliyan, and when the accused saw
the witness (Vinay Prakash), he moved fast
but the witness did not notice his activity and
went to his home; and when on the same day
at 08:00 p.m., body of the deceased was
found in the grove of Pratap Singh, then he
believed that the incident was caused by the
accused-appellant;
he
also
stated
in
examination-in-chief that the aforesaid fact
was brought into the notice of family
members of the deceased as well as
Investigating Officer and also stated that the
accused-appellant does not have good
character. He further submitted that the
witness Vinay Prakash (PW-2) was also
cross-examined in which he stated that he
was also searching for the girl (deceased) and
he also met with the informant where the
dead body of the deceased was found, but he
did not speak to him about the activities of
accused-appellant. He further deposed that no
any article was found near the body of the
deceased, and the prosecution case is
improbable on the ground that when the
deceased girl left her house at 02:00 p.m. and
the accused appellant was leaving the grove
in between 02:00 - 02:30 p.m., then when and
how the said incident was taken place.

(15) Learned counsel for the accusedappellant has further submitted that Mohd.
Khaleel (PW-3) was also examined before
the trial court and in his examination-in-chief
he stated that on the date of incident in
between 01:30 - 02:00 p.m., the accusedappellant passed nearby the agricultural field
in which he was working and went to the
grove of Pratap Singh; and he also deposed
that the distance of the grove is 150 mt. from
his field in which he had worked since 09:00
a.m. to 05:30 p.m. and when the body of the
girl was found then he also went to the place
of incident, but he did not speak to her family
members, and on the next date, he told to the
concerned Sub Inspector.

(16) Learned counsel for the accusedappellant has further submitted that the
statements of Smt. Siyavati (PW-7), Vinay
Prakash (PW-2) and Mohd. Khaleel (PW-
66 INDIAN LAW REPORTS ALLAHABAD SERIES
3) are contradictory as PW-7 Smt. Siyavati
(mother of the deceased) has categorically
stated that girl went out at 02:00 p.m. from
her home, but Vinay Prakash (PW-2) stated
that on the date of incident, accusedappellant was going towards village in
between 02:00-02:30 p.m. from grove of
Pratap Singh and Mohd. Khaleel (PW-3)
stated that on the date of incident, he saw
the accused-appellant passing nearby the
agricultural filed at about 01:30 - 02:00
p.m., in which he was working since 09:00
a.m. to 05:30 p.m., and when the body of
the girl was found, then he also went there,
but he did not speak to the family members
of the deceased, and on the next date he
told the same to the Sub Inspector. In such
circumstances, the prosecution story is
highly doubtful.

(17) Learned counsel for the accusedappellant has further submitted that Dr.
Brijesh Kumar Srivastava (PW-4) was
examined before the trial court, who
conducted the postmortem of the body of
the deceased along with the Dr. Shipra
Singh (PW-5). He further submitted that in
the postmortem report, seven ante-mortem
injuries were found on the body of the
deceased and doctor has opined that the
cause of death is Asphyxia due to antemortem throttling. He further submitted
that the prosecution failed to send the
finger print to FSL for examination and in
the postmortem report, PW-5 Dr. Shipra
Singh has opined that rape was committed
with the deceased, her hymen is torned and
admits two finger.

The ante-mortem injuries of the
deceased are as under:-

1. Contusion over inner surface of
upper and lower lip in an area of 2.5 cm x
1.0 cm.

2. Multiple abrasion 0.5 cm x 0.3 cm
(18-12 in no.) present over out aspect of
Neck in an area of 10 cm x 7 cm.

3. Abrasion over left forearm, outer
aspect, 3 cm x 0.2 cm, just below to left
elbow.

4. Abrasion 4 cm x 0.2 cm over outer
aspect of left forearm, 3 cm below to injury
No. 3.

5. Multiple abrasion (5-6 in no.)
ranging from 2 cm x 0.2 cm to 5 cm x 0.2
cm, in area of 7 cm x 7 cm present over
antero lateral aspect of left forearm, 3 cm
above to left wrist.

6. Multiple abrasion (4-5 in no.) on
posterior aspect of left hand ranging from 3
cm x 0.2 cm to 6 cm x 0.2 cm, in area of 6
cm x 6 cm.

7. Multiple abrasions on postero
lateral on (Rt.) arm (18 to 20 in no.) present
in area of 20 cm x 7 cm ranging from 2 cm
x 0.2 cm to 5 cm x 0.5 cm.

(18) Learned counsel for the
accused-appellant has further submitted
that the accused was medically examined
after his arrest and his genital part was
also examined. He further submitted that
in general examination of accused, no any
obvious swelling or mark of external
injury was found and in the examination
of genital i.e. a) Prepuse (on retracton):
smegma present with abrasion 1 cm x 0.5
cm on inner aspect of prepuce on ventral
surface, just below the corona of Glans,
color of abrasion is bluish black; b)
Frenulum: torn, fibrosed; c) Glans:
Abraded
contusion
involving
whole
periphery of glans i.e. just - anterior to
corona, bluish black in colour; and Pubic
hair as well as nail of all fingers and
Penile Wash of accused-appellant were
also taken into custody and sent to FSL
for examination along with the pubic hair
and other articles of the deceased.
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
67

The medico-legal examination of the
accused-appellant is as under:-

A. General Exam :-

a. Average built body.

b. Height 145 cm

c. Weight 50 kg

d. No any obivious swelling or mark
of external injury visible.

B. Local Exam of Genitalia:

a. Pepuce (on retraction) - Smegma
present with abrasion 1 cm x 0.5 cm on
inner aspect of prepuce on ventral surface,
just below the corona of glans, colour of
abrasion is bluish black.

b. Frenulum - Torn, fibrosed.

c.
Glans
-
Abraded
contusions
involving whole periphery of Glans i.e. just
anterior to corona, bluish black in colour.

C.
Pubic
Hair
Shave/Nails
cut/wrapped in plain paper and sealed in
separate envelops and handed over to CP
concerned.

D. Penile wash done with normal
saline, sealed in a beaker and handed over
to
CP
concerned
for
further
Forensic/Pathological examn.

Opinion - KUO/caused by friction.

Duration - About 21⁄2-3 days.

One sealed envelop containing Pubic
Hair, Sealed envelop contains nails of all
fingers, sealed beaker containing penile
wash are handed over to CP concerned for
further Forensic/Pathological examn, and
(3) Sample of the seal handed over to CP
concerned.

(19) Learned counsel for the accusedappellant has further submitted that the
presence of the smegma reveals that
accused appellant has not cleaned his
genitals since last 2-3 days. He further
submitted that in case, alleged abrasion on
the genital of the accused-appellant are due
to friction during the course of rape with
the deceased having narrow vagina, colour
of abrasion was to be red at the glans but in
the present case, it is said that abrasion is
bluish black in colour and if vagina was
narrow then the deceased must have injury
on her genital as in the Postmortem Report
shows that two fingers admits in vagina. In
such circumstances, the story of the
prosecution is highly improbable.

(20) Learned counsel for the accusedappellant
has
further
submitted
that
fibrosed found on frenulum reveals that the
accused-appellant has not cleaned his
genitals properly since last 2-3 days.
Therefore, it was obligatory on the part of
the prosecution to get the DNA test to bring
out the truth. He further submitted that
prior to year 2006, there was no provisions
for DNA test, but by way of amendment by
Act No.25 of 2005 an explanation clause
was added in Section 53 of Cr.P.C., which
provides that an examination of the person
arrested as is reasonable/necessary in order
to ascertain the facts which may support
such evidence, examination is defined in
the
explanation
clause
includes
the
examination of blood, blood stain, semen,
swab in case of sexual offence, sputum and
swab hair samples and finger nails clipping
by the use of thorough and scientific
techniques including DNA profiling and
such others tests which the medical
practitioners
thinks
necessary
in
a
particular case. He further submitted that in
the present case, the Articles were sent to
FSL and the report was also sent by Deputy
Director FSL, Lucknow, vide letter No.
190-BIO-13 dated 03.02.2014 addressed to
Chief Judicial Magistrate, Barabanki, in
which no semen or sperm was found on the
Pubic hair or slide prepared by the doctors.
68 INDIAN LAW REPORTS ALLAHABAD SERIES
He further submitted that the aforesaid
report was taken on record by the learned
trial
court
on
14.03.2014
but
the
prosecution, deliberately, has not proved
this report because this report denies the
prosecution story, but it was the bounden
duty of the trial court to look into the same.

(21) Learned counsel for the accusedappellant has further submitted that learned
trial court also acted very negligently as the
order sheet reveals that on 30.07.2013,
Amicus Curiae was informed about his
engagement as counsel for the accused and
on the same date charges were framed,
meaning thereby, no opportunity was given
to the Amicus Curiae for accused appellant
to prepare for his submissions at the stage
of framing of charge. He further submitted
that the legal aid provided to the accusedappellant was not competent enough, which
is very much evident from the manner in
which
the
cross-examination
was
conducted by him as well as from his
assistance given to the accused-appellant
for giving reply regarding his statement
under Section 313 Cr.P.C., as Articles 22,
39A of the Constitution of India and
Sections 303/304 r/w Rule 37 of General
Rules
(Criminal),
1977
framed
by
Allahabad High Court, which provides that
the legal aid provided by the Amicus
Curiae is not to be an eye wash, but it
should be real and effective. He also relied
on the decision of Hon'ble Supereme
Court in the case of Anokhilal Vs. State of
Madhya Pradesh reported in 2019 SCC
OnLine SC 1637 and the case of Shadaan
Ansari Vs. State of U.P. and others
reported in 2020 SCC OnLine All 19.

(22) Learned counsel for the accusedappellant has further submitted that three
tests ought to be satisfied where a decision
rests solely on circumstantial evidence -
firstly, all circumstances from which
inference of guilt is drawn must be
cogently and firmly established; secondly,
the circumstances must unerringly inclined
towards the guilt of the accused; and
thirdly, the circumstances taken together
must form a chain so complete that it
becomes incapable of explanation on any
reasonable hypothesis except for the guilt
of the accused, and relied on the decision of
Hon'ble Supreme Court in the cases of
Gargi vs. State of Haryana (2019) 9 SCC
738, Chandmal vs. State of Rajasthan
(1976) 1 SCC 621, State of U.P. vs. Hari
Mohan (2000) 18 SCC 598, Raj Kumar
Singh vs. State of Rajasthan (2013) 5 SCC
722, Ganpat Singh Vs. State of M.P.
(2017) 16 SCC 353, Baiju Kumar Soni vs.
State of Jharkhand (2019) 7 SCC 773 and
Rajendra vs. State (NCT of Delhi) (2019)
10 SCC 623.

(23) Learned counsel for the accusedappellant has further submitted that all
circumstances concerned must establish the
circumstances of a conclusive nature and
tendency and relied on the decision of
Hon'ble Supreme Court in the cases of
Hanumant Govind Nargundkar vs. State
of M.P. AIR 1952 SC 343, Shivaji
Shahabrao
Bobade
vs.
State
of
Maharastra (1973) 2 SCC 793, CBI vs.
Mahender Singh Dahiya (2011) 3 SCC
109, Ramesh Harijan vs. State of U.P.
(2012) 5 SCC 777, Sujit Biswas vs. State
of Assam (2013) 12 SCC 406, Anjan
Kumar Sarma vs. State of Assam (2017)
14 SCC 359.

(24) Learned counsel for the accusedappellant has further submitted that in
criminal justice system, if two views are
possible on the evidence adduced in the
case, one pointing to the guilt of the
accused and other to his innocence, the
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
69
view which is favourable to the accused
should be adopted and relied on the
decision of Hon'ble Supreme Court in the
case of Kali Ram vs. State of Himachal
Pradesh (1973) 2 SCC 808.

(25) Learned counsel for the accusedappellant has further submitted that while
appreciating circumstantial evidence, the
trial court must adopt a very cautious
approach and great caution must be taken
to evaluate circumstantial evidence, and he
also relied on the decision of Hon'ble
Supreme Court in the cases of Hanumant
Govid Nargundkar vs. State of M.P. AIR
1952 SC 343, Gurpreet Singh vs. State of
Haryana (2002) 8 SCC 18, Ram Singh vs.
Sonia (2007) 3 SCC 1, Musheer Khan vs.
State of M.P. (2010) 2 SCC 748.

(26) Learned counsel for the accusedappellant has further submitted that it is
trite law that in criminal cases, the burden
of proof on the prosecution is one of proof
beyond reasonable doubt as opposed to a
preponderance of possibilities, but in the
present case, the prosecution failed to
establish its case. As per the prosecution
case, the deceased went out from her house
at 02:00 p.m., and as per the statement of
Vinay Prakash (PW-2) (question No.2
framed under Section 313 Cr.P.C. by the
trial court), he has seen that in between
02:00 - 02:30 p.m. accused was coming out
from the grove of Pratap Singh and going
towards the village and as per the statement
of Mohd. Khaleel (PW-3) that he was
working in the field since 09:00 a.m. to
05:30 p.m. and the distance of the grove is
150 m from the filed he was working, but
he did not notice any incident. In such
circumstances, the prosecution story is
highly improbable. He also relied on the
decisions of Hon'ble Supreme Court in the
case of Shivaji Sahabrao Bobade vs. State
of Maharastra (1973) 2 SCC 793, State of
Karnataka vs. J. Jayalalitha (2017) 6 SCC
263, Ashok Debbarma Ram Vs. State of
Tripura (2014) 4 SCC 747.

(27) Learned counsel for the accusedappellant has further submitted that the
prosecution
relied
on
confessional
statement of the accused-appellant given to
the police and on his pointing out, the
notebook was recovered, but the same was
not sent for expert opinion in relation to
hand writing found in the notebook. He
further submitted that the PW-8 M.S. Khan
(Investigating Officer) has categorically
mentioned in the inquest report and also
deposed before the trial court that there was
sufficient light of seven petromax and head
light of one tractor in which the inquest of
the body of the deceased was conducted,
but in the inquest report no article is
mentioned which was found near to the
body of the deceased, and on the next day
i.e.
31.03.2013,
recovery
of
under
garments, leggings and sleepers of the
deceased was done from the same place
and the same were taken into custody. On
01.04.2013, on pointing out of the accusedappellant, the notebook was recovered from
the place where the leggings and under
garments and sleepers of the deceased were
recovered

(28) Learned counsel for the accusedappellant has further submitted that if the
requirement of Section 27 of Indian
Evidence Act are met with i.e. 1) fact is
discovered; 2) discovery is in consequence
of the confessional statement, then the part
of the statement that relates to the fact
discovered becomes admissible in the
evidence, and the fact discovered envisaged
in the section embraces the place from
which the object was produced, the
knowledge of the accused as to it, but the
70 INDIAN LAW REPORTS ALLAHABAD SERIES
information given must relate distinctly to
the effect, and he has also relied on the
decision of Hon'ble Supreme Court in the
cases of State of U.P. vs. Deoman
Upadhyay AIR 1960 11 SCC 1125 and
Bodhraj @ Bodha vs. State of Jammu &
Kashmir (2002) 8 SCC 45.

(29) Learned counsel for the accusedappellant
has
further
submitted
that
constitutional safeguard provided under
Article 20(3) of Constitution of India clearly
states that no accused of an offence shall be
compelled to be a witness against himself. He
further submitted that the provisions of
Section 25, 26 & 27 of Indian Evidence Act,
1872 r/w Article 20(3) of Constitution of
India make it clear that a confession made by
any person to a police officer is inadmissible
as an evidence, except for the singular cases
where such statement results in a consequent
discovery of fact, and also relied on the
decision of Hon'ble Supreme Court in the
cases of Aghnoo Nagesia vs. State of Bihar
AIR 1966 SC 119, Vasanta Sampat Dupare
vs. State of Maharastra (2015) 1 SCC 253,
Ishwari Lal Yadav vs. State of Chattisgarh
(2019) 10 SCC 437.

(30) Learned counsel for the accusedappellant has further submitted that in
absence of direct evidence of an offence,
presumption must be an inference of the
fact drawn from another proved fact that is
likely to flow as a common course for
natural
events,
human
conduct
and
public/private business vis-a-vis facts, and
also relied on the decision of Hon'ble
Supreme Court in the cases of Limbaji vs.
State of Maharastra (2001) 10 SCC 340
and State of Andhra Pradesh vs. Vasudeva
Rao (2004) 9 SCC 319.

(31) Learned counsel for the accusedappellant
has
further
submitted
that
decision of trial court suffers from an error
in appreciation of principles of evidentiary
law, and relied on the decision of Ram
Chander vs. State of Haryana (1981) 3
SCC 191.

(32) Learned counsel for the accusedappellant has further submitted that judicial
approach must be cautious, circumspect
and careful and the court must exercise
prudence and each court from the Session
court to the Supreme Court must pursue
and analyse facts of the case at hand and
reach an independent conclusion.

(33) Learned counsel for the accusedappellant has further submitted that learned
trial court observed that the accusedappellant was aged about 35 years without
any evidence, but the medico legal report
reveals that he was aged about 27 years at
the time of incident.

(34) Learned Government Advocate
has submitted that learned trial court has
rightly appreciated the evidence deposed
before the trial court. He also submitted
that in the present case, modesty of twelve
year's old girl was outraged by the
appellant
and
thereafter,
she
was
strangulated to death. He also submitted
that involvement of the accused-appellant
was
found
during
the
course
of
investigation and he was arrested on
01.04.2013. Thereafter, the accused was
medically examined and some injuries were
found on his genital parts which was
caused due to physical relation with the
deceased (minor). He also submitted that
on pointing out of the accused, his
notebook was recovered from the place of
incident which was duly proved by M.S.
Khan (PW-8). He also submitted that Vinay
Prakash (PW-2) and Mohd. Khaleel (PW3) deposed before the trial court that they
6 All. Ubhan Yadav @ Abhai Kumar Yadav Vs. State of U.P.
71
had seen the accused appellant near the
grove of Pratap Singh. He also submitted
that Dr. Brijesh Kumar Srivastava (PW-4)
and Dr. Shipra Singh (PW-5) deposed
before the court below that the deceased
was killed after rape, and her pubic hair and
vaginal smear were sent to FSL along with
the nails and pubic hair of the accusedappellant for forensic and pathological
examination.
He
also
submitted
that
postmortem of the body of the deceased
was conducted and seven anti-mortem
injuries is found on the body of the
deceased.

(35) Learned Government Advocate
has also submitted that the accusedappellant was medically examined and
smegma was present on his genital part and
the abrasion was also found and the colour
of the abrasion is bluish black due to force
penetration. He also submitted that the
deceased was mentally retarded and the
offence comes into the category of rarest of
the rare cases as the twelve year's old
mentally retarded girl was raped and
thereafter, murdered. He also relied on the
decision of Hon'ble Supreme Court in the
case of Laxman Naik Vs. State of Orissa
reported in (1994) 3 SCC 381, Dhananjoy
Chatterjee @ Dhana vs. State of West
Bengal reported in (1994) 2 SCC 220 and
Shivaji @ Dadya Shankar Alhat Vs. State
of Maharastra reported in (2008) 15 SCC
269.

(36) Considering the arguments of the
learned counsel for the appellants as well as
learned Government Advocate and going
through the records, it is evident that the
proseuction examined four sets of eight
witnesses, which are given as under:-

1. Relation of the deceased and
witnesses of facts: Prem Nath Singh
(father of the deceased) PW-1 and Smt.
Siyavati (mother of the deceased) PW-7.

2. Last seen witnesses: Vinay Prakash
(PW-2) and Mohd. Khaleel (PW-3).

3. Experts who conducted medical
and postmortem of the deceased: Dr.
Brijesh Kumar Srivastava (PW-4) and Dr.
Shipra Singh (PW-5).

4. Police officers who conducted the
investigation and prepared Chick F.I.R.:
Constable Ram Raj (PW-6) and M.S. Khan
(Investigating Officer) PW-8.

(37) It is evident that as per the
prosecution case, F.I.R. was lodged on the
written complaint of PW-1 Prem Nath
Singh (father of the deceased), in which he
categorically mentioned that his younger
daughter went out from her home at 02:00
p.m., but she did not come back, as a result,
search was started and later on, her dead
body was found under the black berry tree
in the grove of Pratap Singh situated in the
southern side of the village; thereafter, the
F.I.R. was lodged on 30.03.2013 and the
written complaint was proved by him as
Ext. Ka-1. Later on, inquest of the body of
the deceased was conducted by M.S. Khan
(PW-8) and the inquest report was prepared
as Ext. Ka-2, and in the inquest report no
article has been mentioned which was
found near the body of the deceased, as in
the inquest report it is mentioned that the
inquest was conducted in the light of seven
petromax and head light of one tractor in
the night, but neither the leggings, under
garments and sleepers of the deceased nor
notebook of the accused was recovered. On
the next date, site plan was prepared by the
Investigating
Officer
and
he
found
leggings, under garments and sleepers of
the deceased from the place of incident and
thereafter, the statement of Vinay Prakash
(PW-2) and Mohd. Khaleel (PW-3) was
recorded by the Investigating Officer under
72 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 161 Cr.P.C., in which they stated
that the accused-appellant was seen by
them near the grove of Pratap Singh.