# Upendra v. State of U.P

- **Citation:** (2022) 3 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-16
- **Case number:** Capital Case No. 4 of 2020
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-v-state-of-u-p-48167
- **Pages:** 17

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code,1860 - Section 302, 376challenge
to-conviction/death
penaltyblind murder-FIR anti-timed-testimony of
PW-1 renders the testimony of PW-3 and
PW-4 unreliable and unacceptable-PW-3
is a chance witness whose presence at the
spot appears unnatural and her testimony
that she narrated everything to PW-1 is at
variance with what PW-1 states-PW-3
though speak of being a witness of both
rape and murder but gives no description
of how the victim was murdered-ligature
marks found on the neck, have no
explanation in the ocular account and
there is no recovery of ligature, either
from the spot or from anywhere elserecovery of vest is completely bogus, the
vest could not be forensically connected
with the crime-the testimony of PW-4 that
he saw accused running away from a
distance is also unrelaible becuase the
sugarcane crops would have blocked his
view, even otherwise, PW-3 could not
disclose the colour of clothes worn by the
accused when he noticed him runnning
away-no presence of spermatozoa in
3 All. Upendra Vs. State of U.P.
107
swabs and clothes, hence, the offence of
rape cannot be said to be proved-the
prosecution is guilty of hiding the truth by
not seizing the trouser and shoes alleged
to be noticed by PW-4 near the body of
the deceased and by not carrying out DNA
profiling of the biological material that
could be recovered/noticed, or already
recovered, this raises a question regarding
the bona fides of investigation-Thus,
ocular account rendered by PW-3 and PW4 not worthy of acceptance to hold the
appellant guilty and there is no forensic
evidence to link the appellant with the
crime-Prosecution failed to prove the
charges against the appellant-the benefit
of doubt must go to the accused-prayer to
confirm
the
death
penalty
is
rejected.(Para 1 to 30)

The appeal is allowed. (E-6)

## Text

_Characters 0–39,981 of 60,289. This is a partial read: ask again with offset=39981 for what follows._

106 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Consequently, the criminal appeal
preferred by the convict is allowed. The
impugned judgement and order dated
15.6.2017 passed by the trial court in
Sessions Trial No.341 of 2011 State Vs.
Rahul Singh @ Govind Singh arising out of
Crime No.858 of 2010 under Section
302/34, 394, 411, 120-B I.P.C., Police
Station
Dalmau,
District
Rae
Bareli
wherein the convict Rahul Singh @ Govind
Singh has been punished with death
sentence under Section 302 I.P.C., is hereby
set aside.

29. Capital sentence Reference
registered as Capital Sentence No.2 of
2017, referred under Section 366 of Cr.P.C.
for confirmation of Capital sentence
awarded
to
the
convict/appellant,
in
aforesaid Sessions Trial, is hereby rejected.

30. Let the convict Rahul Singh @
Govind Singh convict in Sessions Trial
No.341 of 2011 State Vs. Rahul Singh @
Govind Singh arising out of Crime No.858
of 2010 under Section 302/34, 394, 411,
120-B I.P.C., Police Station Dalmau,
District Rae Bareli be released from the
concerned jail, if not required in any other
case.

31. Appellant Rahul Singh @ Govind
Singh is directed to file personal bond and
two sureties each in the like amount to the
satisfaction of the court concerned in
compliance with Section 437-A of the Code
of Criminal Procedure, 1973.

32. Let a copy of this order alongwith
original record be transmitted to the trial
court concerned forthwith for necessary
information and further action.
----------
(2022)03ILR A106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Case No. 4 of 2020
With
Reference No. 3 of 2020

Upendra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Abhay Raj Yadav, Sri Dinesh
Kumar, Sri Rakesh Prasad

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code,1860 - Section 302, 376challenge
to-conviction/death
penaltyblind murder-FIR anti-timed-testimony of
PW-1 renders the testimony of PW-3 and
PW-4 unreliable and unacceptable-PW-3
is a chance witness whose presence at the
spot appears unnatural and her testimony
that she narrated everything to PW-1 is at
variance with what PW-1 states-PW-3
though speak of being a witness of both
rape and murder but gives no description
of how the victim was murdered-ligature
marks found on the neck, have no
explanation in the ocular account and
there is no recovery of ligature, either
from the spot or from anywhere elserecovery of vest is completely bogus, the
vest could not be forensically connected
with the crime-the testimony of PW-4 that
he saw accused running away from a
distance is also unrelaible becuase the
sugarcane crops would have blocked his
view, even otherwise, PW-3 could not
disclose the colour of clothes worn by the
accused when he noticed him runnning
away-no presence of spermatozoa in
3 All. Upendra Vs. State of U.P.
107
swabs and clothes, hence, the offence of
rape cannot be said to be proved-the
prosecution is guilty of hiding the truth by
not seizing the trouser and shoes alleged
to be noticed by PW-4 near the body of
the deceased and by not carrying out DNA
profiling of the biological material that
could be recovered/noticed, or already
recovered, this raises a question regarding
the bona fides of investigation-Thus,
ocular account rendered by PW-3 and PW4 not worthy of acceptance to hold the
appellant guilty and there is no forensic
evidence to link the appellant with the
crime-Prosecution failed to prove the
charges against the appellant-the benefit
of doubt must go to the accused-prayer to
confirm
the
death
penalty
is
rejected.(Para 1 to 30)

The appeal is allowed. (E-6)

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal from jail by appellant
questions the judgment and order of
conviction
and
punishment
dated
24.01.2020 and 28.01.2020, respectively,
passed by Additional District & Sessions
Judge/Fast Track Court No.1, Amroha in
Sessions Trial No. 196 of 2017, convicting
the appellant under Sections 302 and 376
I.P.C. and punishing him with death penalty
and fine of Rs. 50,000/- under Section 302
I.P.C. and imprisonment for life and fine of
Rs. 50,000/-, coupled with a default
sentence
of
one
year
additional
imprisonment, under Section 376 IPC. As
death penalty has been awarded, the court
below has sent a reference for confirmation
of death penalty which has been registered
as Reference No. 3 of 2020.

2. Considering the nature of the
offence, the name of the victim, members
of her family and witnesses of that village
has not been disclosed and therefore,
wherever
required,
they
have
been
described either by an alphabet or witness
number.

INTRODUCTORY FACTS

3. (i) The prosecution case has its
genesis
in
a
written
report
dated
24.02.2017 (Exb. Ka-1), lodged by PW-1
(husband of the victim), scribed by PW-2
(nephew of PW-1), which was registered
as Case Crime No. 170 of 2017 at P.S.
Nawgawa Sadar, District Jyotibaphule
Nagar at 17.35 hrs on 24.02.2017 of
which the Chik FIR (Exb Ka-7) was
proved by PW-7 (Santosh Kumar Singh).
In the FIR, PW-1 alleged that his wife
(victim), on 24.02.2017, at about 2 pm,
went to the field to harvest mustard crop.
When she did not return, PW-1 went in
search of her. During search for the
victim, PW-3 (a lady) informed PW-1 that
she saw two men taking the victim into
the field of X. On receipt of information
when the field of X was scanned, at about
4.00 pm, in between standing sugarcane
crop of X, the victim was found lying
dead with clothes torn. By alleging that
PW-4 (grandson of PW-1) had informed
the
informant
of
having
seen
the
appellant with another man running away,
FIR was lodged against the appellant and
one unknown person.

(ii) By about 9 pm on 24.02.2017,
inquest proceedings were completed and an
inquest report (Exb. Ka-9) was prepared by
Veerpal Singh (PW-8) of which PW-2 and
PW-4, amongst others, are witnesses. The
inquest report notices that the body was of
an old lady aged about 75 years and it had
no lower wear.

(iii) On 25.02.2017, at 12:10 pm,
autopsy of the body was conducted by Dr.
Deepak Verma (PW-6). The autopsy report
(Exb. Ka-2), inter alia, notices:-
108 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) Rigor mortis all over the
body;

(b) Ante-mortem injuries:-

(1) Contusion size 10 x 8 cm
present on right side of face and temporal
region;

(2) Ligature mark size 26 x 1.5
cm present on both side of neck, 4 cm
below from left ear pinna and 2 cm below
from right ear pinna, 4 cm below from
chin;

(3) Multiple abraded contusion
involving an area 16 x 12 cm both side of
neck till both medial ends of clavicle;

(4) Abrasion size 5 x 4 cm
present on left side of mandible;

(5) Multiple small
abrasions
present on both side of upper chest in area
22 x 11 cm, largest 1 x .2 cm and smallest
.5 x .1 cm;

(6) Abrasion sized .2 x .1 cm
present on dorsal aspect of right thumb; and

(7) Bleeding from mouth present.

(c) Internal Examination:-

(1) Hyoid Bone found fracture;

(2) 500 ml semi-digested food in
the stomach;

(3) Semi-digested food in the
small intestine;

(4) Faecal matter in the large
intestine; and

(5)
Genital
organ:
abrasions
present on left inner wall of vagina.

(d) Cause & Manner of death:
Asphyxia, due to strangulation.

(e) Estimated time of death:
Between one-half and a day before.

(iv) On 26.02.2017, the appellant
was arrested and a Baniyan (vest) is stated to
be recovered at his instance from below a
Tree standing in a vacant field. The recovery
is witnessed by PW-5. The recovery memo
(Exb. Ka-4) records that the accused pointed
towards semen mark on the vest which was
encircled by a red pen for forensic
examination. It be noted that from the record
it appears that the appellant was medically
examined on 26.02.2017 which revealed no
fresh and external injury but the medical
examination report has not been exhibited.

(v) On 27.03.2017, charge-sheet
(Exb. Ka-6) prepared by PW-7 is submitted
against the appellant under Section 302/376
I.P.C. on which, after cognizance, the case
was committed to the Court of Session and,
vide order dated 17.03.2018, charge of
offences punishable under sections 376 and
302 IPC were framed against the appellant.
The appellant pleaded not guilty and claimed
for a trial.

(vi) During the course of trial, the
prosecution examined as many as eight
witnesses: PW-1 is the informant (husband of
the deceased victim); PW-2 is the nephew of
the informant and the scribe of the FIR; PW3 is a village lady, who is an eye-witness of
the incident; PW-4 is the grandson of PW-1,
who saw the appellant running away from the
spot in just a knicker and a vest; PW-5 is the
witness of recovery of Baniyan (vest) at the
instance of the appellant; PW-6, namely, Dr.
Deepak Verma, is the doctor who conducted
autopsy of the body and prepared the autopsy
report; PW-7, namely, Santosh Kumar Singh
is the Investigating Officer, who proved
various stages of the investigation including
registration of FIR, recovery of vest and other
articles; and PW-8, namely, Veer Pal Singh,
is a police witness, who proved the inquest
proceeding.

(vii) After the submission of
charge-sheet, a forensic report, dated 07th
April, 2017, (Exb. Ka-17), prepared by the
Joint Director, Forensic Laboratory, U.P,
Amroha, was received in respect of
following articles:-

(a) Petticoat recovered from the
spot, alleged to be worn by the deceased;

(b) Kurta (upper-wear) found on
the body of the deceased;
3 All. Upendra Vs. State of U.P.
109

(c) Saree found on the spot;

(d) Nose pin;

(e) Key;

(f)
Baniyan
(Vest)
Sando
(recovered at the instance of the appellant);
and

(g) Swab obtained from labia
majora & pubic area of the deceased.

As per the report, on Articles (a),
(c) and (f), human blood was found.
Human blood was not found on articles (b),
(d), (e) and (g). No spermatozoa seen on
(a), (b), (c), (f) and (g).

(viii)
The
incriminating
circumstances appearing in the prosecution
evidence were put to the accused to record
his statement under Section 313 Cr.P.C.
The accused claimed that he has been
falsely implicated; that no vest was
recovered at his instance; and that he is a
resident of Bihar, who works as a Labour.
However, no defence evidence was led.

(ix) The trial court by relying on
the ocular account and the medical
evidence,
held
the
charge
proved.
Accordingly, it convicted the appellant
under Sections 302 and 376 I.P.C. and
punished him as above.

(4) We have heard Sri Rakesh
Prasad and Sri Abhay Raj Yadav for the
appellant; Sri Amit Sinha, learned A.G.A.,
for the State and have perused the record.

SUBMISSIONS ON BEHALF
OF THE APPELLANT

(5) Learned counsel for the appellant
submitted as follows:

(i) That on careful scrutiny of the
entire evidence, the FIR appears ante-timed
inasmuch as entries in some of the papers
prepared
during
investigation
were
at
variance with the Chik FIR; copy of the FIR
was delivered to the informant (PW-1) after
several days; the body was dispatched in a
private vehicle; and there was inordinate
delay in sending the body for autopsy. All of
this suggest that the prosecution story was
weaved on suspicion and guess-work.

(ii) That except PW-3, there is no
eye-witness of the incident. The testimony of
PW-3 in respect of culpability of the
appellant does not inspire confidence for the
following reasons:- (a) PW-1 (the informant)
who was the first to be informed by PW-3
states that PW-3 did not disclose the name of
the appellant and had only informed that two
men were seen taking the victim into the
sugarcane crop in the field of X. This
statement of PW-1 is at variance with PW-3,
who not only improves upon the disclosure
made by her to PW-1 but also states that
except PW-3, there was no one else. This
improvement/alteration suggests that the
prosecution is hiding the truth and has not
come with clean hands; (b) PW-1 states that
when the deceased did not timely return, he
went in search of her, on way, while returning
from the fields, PW-3 met PW-1 and
informed PW-1 that PW-3 saw two persons
taking the victim into the sugarcane crop but,
PW-3, in her testimony, states that after
seeing the incident she got nervous and went
back home and, thereafter, she came to
inform PW-1. If that was so, the FIR would
have reflected the information; (c) PW-3 is a
chance witness, who does not have her own
field next to the field from where the body of
the deceased was recovered or from where
the deceased was taken therefore, it is not
probable that she would have been present at
the spot to witness the incident; and (d) that
her statement was recorded on 25.2.2017 and,
importantly, her presence is not shown in the
site plan (Ex. Ka-3) prepared by PW-7 on
24.02.2017.

(iii) That the testimony of PW-4
is not reliable because, firstly, according to
PW-1, PW-4 reported to PW-1 having seen
110 INDIAN LAW REPORTS ALLAHABAD SERIES
two persons running away from the spot
but PW-4 states that he saw just the
appellant and, secondly, there were tall
sugarcane plants in that field which would
block his vision. Otherwise also, the
testimony of PW-4 is inconclusive and on
its own cannot form basis of conviction.

(iv) That recovery of the Baniyan
from open place, firstly, is bogus, false and
planted and, secondly, is inconsequential as
it could not be proved that it carried blood
of the deceased. Otherwise also, it has not
been demonstrated by any evidence that the
appellant was wearing the same vest at the
time of occurrence.

(v) That the offence of rape could
not be established because presence of
spermatozoa was neither noticed on the
clothes, or swabs taken from private part,
of the deceased nor on the vest recovered at
the instance of the appellant. Further, the
Baniyan (vest) though, as per forensic
report, carried stain of human blood but,
interestingly, the presence of blood is not
noticed in the recovery memo. Moreover,
there is no DNA profiling of the blood
found on vest to connect it with the
deceased. Even the blood group was not
matched. Thus, there is no forensic
evidence to link the appellant with the
crime.

(vi) The appellant is not a
domicile/ permanent resident of the village
and had no association with the deceased
therefore, it is highly improbable as to why
he would commit the crime more so, when
the victim is a 75 years old lady. Rather, it
is a case of blind murder of a sensitive
nature therefore, to solve out the case, the
police picked the appellant, a resident of
Bihar, who had no support, and framed him
in the case. The malicious nature of the
investigation
is
apparent
from
the
circumstance that no effort was made to
trace out the second accused or to seize the
trouser of the suspect which, according to
PW-4, was lying at the spot. Because, if the
prosecution story is to be believed then the
accused-appellant was running in just a
knicker and a vest therefore, he must have
left the remaining clothes behind. This
creates a serious doubt in the prosecution
case
and
throws
possibility
of
the
prosecution hiding the truth and this
suspicion gets fortified by the circumstance
that there is no compliance of the
provisions of section 53-A CrPC to enable
DNA profiling.

(vii) The presence of ligature
mark around the neck of the deceased finds
no explanation in the testimony of the eyewitness (PW-3). Even the ligature has not
been recovered therefore, it appears, the
deceased died in some other manner than
alleged by the prosecution.

(viii) Lastly, it is not one of those
rarest of rare cases where death penalty
could be awarded. More so, when the
appellant is not a person with any past
criminal record and is of young age.

 SUBMISSIONS
ON
BEHALF OF THE STATE

6. Per contra, learned A.G.A.
submitted as follows:

(i) That the FIR could not be
demonstrated to be ante-timed. More over,
nothing has come on record to suggest that
the
investigation
was
tainted
with
animosity or malice.

(ii) That, admittedly, neither PW1 nor PW-2 is an eye-witness therefore,
their
deposition
cannot
be
used
to
contradict or doubt the statement of PW-3
and PW-4, who are eye-witnesses. Further,
PW-3 and PW-4 were consistent and
nothing has been suggested to them as to
with what motive would they falsely
3 All. Upendra Vs. State of U.P.
111
implicate the appellant. Further, nothing
has been elicited from them in their crossexamination to render their testimony
untrustworthy or unreliable.

(iii) That absence of spermatozoa
in the vaginal swab or swab obtained from
pubic area or the Baniyan (vest) is not
conclusive to rule out sexual assault,
particularly, when from the testimony of
PW-6 it is established that there were signs
of sexual assault and the body condition
(lower garment missing) as well as the
ocular account suggested that the victim
was sexually assaulted.

(iv) That non recovery of the
ligature by itself would not be fatal to the
prosecution case because once PW-3 noticed
the appellant over the body of the deceased,
the burden was on the appellant to explain as
to in what circumstances he was in that
position and there being not much time gap
between him being noticed with the deceased
in that position and the recovery of the body
of the deceased from the same spot, in
absence of explanation, inference can be
drawn that it was the appellant who
committed rape as well as murder of the
deceased. Otherwise also, it is quite possible
that the Saree or the clothes worn by the
deceased might have been used as a ligature
to strangulate the deceased.

(v) That in respect of non-seizure
of the trouser, no suggestion / question was
put to I.O. (PW-7) or to PW-8, who
conducted inquest and no question was put
to the eye witness (PW-3) to elicit whether
the accused appellant was wearing trouser
or not therefore, on that ground, no adverse
inference can be drawn against the
prosecution.

(vi) That medical examination of
the accused appellant was conducted
though its report has not been exhibited.

(vii) That though sentence is at
the discretion of the Court, but there are
aggravating circumstances which may
justify death penalty. The aggravating
circumstance is that it is a case of rape and
murder of 75 years old woman which is an
expression of depravity and exhibition of a
conduct that shocks the conscience.

PROSECUTION EVIDENCE

7.

Having
noticed
the
rival
submissions, before we proceed to weigh
and analyse the submissions made, it would
be useful to notice in brief the testimony of
the witnesses examined by the prosecution.
Their testimony is as follows:

8. PW-1 - the informant. He states
that on the date of the incident the deceased
had left at about 2.00 pm to harvest
mustard crop standing in his field. When
the deceased did not timely return, PW-1
went in search of her, on way, PW-1 met
PW-3 who informed PW-1 that two persons
were seen taking the deceased, by pulling
her, into the sugarcane field. On receipt of
that information, PW-1 went to the field of
X and, at about 4.00 pm, found the
deceased lying dead, naked from below. He
stated that the appellant and his associate
were
seen
running
away
from
the
sugarcane field by PW-4. Whereafter, he
got the report lodged at P.S. Nauganwa,
after getting it scribed by PW-2, which was
marked
Ex.
Ka-1.
In
the
crossexamination, PW-1 stated that his village
is about 100 meters away from his field;
the deceased was found lying in the field of
X which had standing sugarcane crop taller
than a man; that the accused-appellant is a
resident of Bihar and had come to the
village in the month of November/
December 2017; that at the time when he
was searching for his wife there were
hundreds of villagers with him; that while
leaving to harvest the crop the deceased
112 INDIAN LAW REPORTS ALLAHABAD SERIES
had taken a Darati (harvesting tool) and a
Chaadar (a cloth spread); that the accusedappellant was not known to the deceased;
that the accused Upendra works on the
Kolhu (expeller) of one Y, a resident of
another mohalla (area); that neither PW-3
nor PW-4 had given him information with
regard to the name of that person whom
they saw; that when PW-3 met PW-1 and
gave the information, it must be about 3.30
pm; that PW-3 met PW-1 while PW-3 was
returning from her field; that PW-3 met
PW-1 about 150 meters away from the field
of X; that field of PW-3 is 100-150 meter
south of PW-1's field; that field of PW-4
adjoins PW-1's field; that PW-4 is son of
PW-1's son; that PW-1 stayed with the body
of his wife for about one hour; that PW-1
and the scribe reached police station
between 5 and 6 pm; that the report was
written at the police station; that it must
have taken an hour to lodge the report; that
he received copy of the FIR after few days;
that after the FIR, the police visited the spot
second time on the next day; and that on
the date of the incident police had reached
the spot at about 4 pm and conducted the
inquest and prepared inquest report at 4
pm. He denied the suggestion that the
deceased was murdered by unknown
persons; the incident was not witnessed by
any one and that the report was lodged after
deliberation and in consultation with the
police.

9. P.W.-2, nephew of the informant is
the scribe of the FIR. He states that he scribed
whatever was told to him by the informant. In
the cross-examination he stated that PW-1
(informant) had reached police station before he
could reach. He reached there about 5 minutes
later. PW-1 had brought paper before he could
reach. He reached there by about 5.30 pm. He
denied the suggestion that he had written the
report on the suggestion of the I.O.

10. P.W.-3- the eye-witness. She
states that on the date of the incident it was
Shivratri. It must have been around 4 pm.
She had gone to collect grass from the
fields; there, the deceased was harvesting
mustard crop. Upendra (the appellant)
came and took the deceased to a nearby
sugarcane field. When, PW-3 reached the
spot, she saw the appellant committing
rape. After committing rape, the appellant
killed the deceased. After seeing all of this,
PW-3 got scared and came back to her
house and disclosed everything to PW-1. In
her cross-examination, she stated that she
is on visiting terms with the informant; that
she informed the informant (PW-1) as well
as the I.O. about the incident on the date of
the incident itself; that she did not inform
PW-1 that there were two persons involved;
that she informed PW-1 about the incident
at about 4 pm or may be 4.30 pm; that the
place of the incident is just a field away
from her her own field; that in between her
own field and the place where the incident
occurred there is another field where there
is also standing crop, the height of which is
not much; that, on a daily basis, she goes to
the field to collect grass and there is no
fixed time for collecting grass; that on the
date of the incident, she must have been
there at the field for one and a half hour
and that she must have gone to the field on
or about 3 pm; that she returned only after
witnessing the incident and she has seen the
appellant lying over the victim; and that
there was nobody other than herself at the
spot. During her cross-examination, when
confronted by her statement recorded under
Section 161 Cr.P.C., wherein she stated that
she got afraid after witnessing the incident
and returned back home and had not
disclosed about the incident to anyone, she
denied having made such statement to the
I.O. She clarified it by stating that while
she was returning, on her way back home,
3 All. Upendra Vs. State of U.P.
113
she did not meet anyone but when she had
kept the collected grass at her house, she
went to the house of PW-1 to tell him about
the incident and it was then, that PW-1
went in search of his wife. She denied the
suggestion that she is lying because of her
relationship with PW-1. She also denied the
suggestion that she had not seen the
incident.

11. PW-4- is the grandson of PW-1.
He stated that on 24.02.2017, at about 4
pm, while he was going towards his field,
he saw the appellant running out of the
sugarcane crop in the field from where the
body was recovered. Later, he came to
learn that at that spot the appellant had
killed his grandmother. In his crossexamination, when confronted that he had
not disclosed the time (4 pm) to the I.O. as
to when he saw the accused appellant
coming out of that field, he stated that he
does not know the reason as to why it was
not written by the I.O. He denied the
suggestion that the time disclosed by him is
on the basis of legal advice. He also stated
that he is not aware as to who killed his
grandmother and that for the first time he is
stating that the appellant had killed his
grandmother. He stated that he saw the
accused running away from a distance of
about 50 meter; and that he did not come
face to face with the deceased while he was
running away. He stated that at that time,
the accused was wearing a knicker and a
vest whereas at the spot trouser (pant) and
Jooti (lady shoes) were lying near the body.
He could not tell the colour of the clothes
worn by the accused and he stated that at
that time there was nobody else. He also
stated that he did not meet PW-3 on the
date of the incident. He stated that his
grandfather (PW-1) had come to know
about the murder before him and that on
the same day he had spoken about the
incident to PW-1. He further stated that
after coming to know about the murder, he
had visited the spot where the body was
lying. On being questioned as to when the
police had arrived at the spot, he could not
remember the time but stated that PW-1
(informant) went to the police station along
with the police. He also stated that by the
time, after arrival, the police went back it
was night. He denied the suggestion that he
did not see what he has stated.

12. PW-5 (witness of recovery of
vest). He proved that at the pointing out of
the appellant a vest, kept beneath a brick,
underneath a Sheesham tree, standing in an
open field, was recovered of which seizure
memo (Ex. Ka-4) was prepared. In his
cross-examination, he stated that the vest
had no stain of any kind on it. The vest was
blue coloured and no mark was put on it by
the I.O. He admitted that the place from
where the recovery was made is about a
kilometer away from his village and that he
was informed from before that the accused
would come there for recovery of vest. He
also admitted that he knows the informant
from before. He denied the suggestion that
nothing was recovered in his presence and
that because of his relationship with PW-1
he is telling a lie.

13. PW-6 - Dr. Deepak Verma, the
doctor who conducted the post-mortem. He
proved the post-mortem report and stated
that he had also prepared a vaginal smear
slide
for
examination
by
forensic
laboratory. Interestingly, the injury no.1 in
his autopsy report which is noted as
contusion, in his oral deposition is
disclosed as an abrasion. In his crossexamination, he stated that injury nos. 1, 3
and 6 could not be caused from lathi /danda
but they could be a result of friction on
account of rubbing against the ground and
114 INDIAN LAW REPORTS ALLAHABAD SERIES
could also be a consequence of falling over
gravel. He stated that injury no. 2 could be
a consequence of strangulation with the aid
of rope or a cloth. He stated that on injury
no.2 no impression of finger nails or finger
were noticed nor he made effort to find it.
But on private parts of the deceased,
abrasion was noticed and signs of sexual
assault were also noticed and that abrasion
could not be a result of scratching. He
stated that in the nails or hands of the
deceased neither hair nor skin was found.
He added that the deceased must have had
a meal two hours before her death.

14. PW-7-Santosh Kumar Singh,
the Investigating Officer (I.O.). He stated
that he took over investigation of the case
on 24.2.2017; after obtaining Chik report,
recording statement of FIR scribe and the
person who prepared Chik FIR, inspected
the spot and prepared site plan (Exb. Ka-3);
that he recorded the statement of the
informant (PW-1) and the eye-witnesses
(PW-3 and PW-4) on 25.02.2017; that on
26.02.2017, he arrested the accused who
confessed about committing the crime and
on his pointing out, vest was recovered of
which seizure memo is Ex. Ka-4. On
27.2.2017,
the
accused's
medical
examination report was received which was
entered in the CD. On 01.03.2017, he
recorded the statement of witnesses A, B
and C (all of them not examined), who all
supported the prosecution case. He stated
that on 08.03.2017 (vide Ex. Ka-5), he sent
the
recovered
articles
for
forensic
examination
and
on
27.03.2017,
he
submitted charge-sheet (Ex. Ka-6). He
stated that the GD entry No.17 (Ex. Ka-8)
in respect of the Chik FIR (Ex. Ka-7) was
made by Constable Clerk Rajveer Singh
under his direction, at 17:35 hours on
24.02.2017, whose signature he recognises.
In his cross-examination, he stated that
PW-1, in his statement recorded under
Section 161 Cr.P.C., stated that PW-3 had
informed PW-1 about the incident after
cremation of the deceased. He stated that in
the site plan that has been prepared by him
he had not shown the area of the fields
adjoining the field from where the body
was recovered. He stated that the standing
crop of sugarcane though tall was not very
dense. PW-7 stated that in the site plan,
point C is the spot from where witnesses
spotted the accused running. He stated that
he has not mentioned the distance between
A and C. (Note: A is the spot where
deceased was harvesting mustard). He
clarified it by stating that between point A
and C there are 6 fields though the distance
between them has not been mentioned. He
admitted that sugar cane crop between the
points A and C were tall but not dense. He
further admitted that he did not mention the
distance between point D and point C
(Note: Point D is the spot where the
accused
were
noticed
running).
He
admitted that the field from which body
was recovered had standing sugar cane
crop. He admitted that near the spot there is
a field of one Z (not examined) and of no
other person and that surrounding the spot
there is jungle and fields but no public rasta
(road). He denied the suggestion that he
colluded with the informant to frame the
accused to solve out the case when in fact it
was some unknown person who committed
the offence. On 04.01.2020, he was again
examined on recall to prove the material
exhibits that were recovered and sent for
forensic examination. On his statement,
they were marked exhibits and the forensic
report was also exhibited. Notably, the
Sando Baniyan (vest) marked M.Ex. No.6
was
white
coloured.
In
his
crossexamination, he stated that the place from
where the vest/ baniyan was recovered had
been a vacant field near the place of
3 All. Upendra Vs. State of U.P.
115
incident with no standing crop though it
was ploughed. He stated that though it was
not mentioned in the seizure memo that the
vest carried blood-stained, but, it had
blood-stain. He admitted that the forensic
report did not disclose presence of
spermatozoa on the vest. He denied the
suggestion that the recovery of Baniyan
(vest) is bogus.

17. PW-8, S. I. Veerpal Singh. He
conducted the inquest proceeding. He
proved the inquest report (Ex. Ka-9) and that
the condition of the body was described as
follows: marks of strangulation on neck,
nose - bleeding; kurta (top wear) - white
coloured - torn; petticoat and saree of blue
colour. He proved the papers in respect of
inquest proceedings and autopsy. In crossexamination, he stated that in the Chik FIR
(Ex. Ka-7) and GD (Ka-16) the distance
between spot and the police station is 20 km,
whereas in Inquest report it is 22 km. He
denied the suggestion that at the time of
preparing the inquest report there was no
FIR in existence and that the FIR was
written after inquest. He stated that at about
9 pm the body was sent for autopsy in a
private vehicle. The distance between the
spot and the post-mortem house is 30 km. In
Form No.13 the distance between police
station and police headquarter (district) is 18
km and the distance between the spot and
police headquarter is 15 km. As per entry in
Form No.13, body reached R.I. (district
police headquarter) on 25.02.2017 at 9.10
hrs. It reached CMO at 11.50 hrs.. He denied
the suggestion that inquest and other papers
were not prepared on the date and time
mentioned. He also denied the suggestion
that the FIR of the case was prepared on
25.02.2017 and only thereafter inquest was
done and, therefore, the body of the
deceased reached post-mortem house on
25.02.2017.

18. At this stage, we may observe that
initially the FIR was registered only under
section 302 IPC on 24.02.2017. It has not
come in the testimony of prosecution
witnesses as to when charge under Section
376 IPC was added. Moreover, no GD Entry
of addition of section 376 IPC has been
exhibited. But, we found from the record
(Case Diary) that the charge of section 376
IPC was added on 25.02.2017 after the
statement of PW-3 was recorded under
section 161 CrPC.

19. Having noticed the oral testimony
of the witnesses, we shall now have a
glimpse at the forensic evidence. In so far
as the forensic evidence is concerned, as
per the autopsy report, internal examination
of private parts of the victim, though,
notices an abrasion on left inner wall of
vagina, but no bleeding. Importantly, author
of the autopsy report, namely, PW-6, in his
deposition, does not rule out possibility of
sexual assault on the victim. Notably, one
Kurta (upper wear), one Dhoti, one
Petticoat (lower wear), one nose pin
(yellow metal) and one key (metallic) were
sealed and sent for forensic examination
and, it appears, swabs from pubic area and
vagina (labia majora) were also taken and
sent for forensic examination. The forensic
report, dated 07.04.2017, sent by Forensic
Laboratory, U.P. Moradabad (refer to
paragraph 3 (vii) above), reports that no
spermatozoa was noticed in the vaginal/
pubic area swab or in the articles i.e.
clothes of the victim and Baniyan (vest) of
the accused. The Baniyan (vest) of the
accused and Petticoat and Saree of the
victim disclosed presence of human blood.
But neither the DNA profile nor blood
group of the blood stain present were
matched to connect it either with the
deceased or with the accused-appellant.
Notably, PW-6, the autopsy doctor, stated
116 INDIAN LAW REPORTS ALLAHABAD SERIES
that in the nails and hands of the deceased
no skin or hair could be found. Thus, the
forensic evidence is not conclusive in
respect of commission of rape but does not
rule out rape of the victim. Further, it does
not connect the appellant with the crime.
Consequently, the case depends on ocular
evidence to prove both the charge i.e. rape
as well as murder.

ANALYSIS

20. As we have already noticed the
entire evidence laid by the prosecution, we
now proceed to analyse the same in the
context of the submissions made. The
submissions on behalf of the appellant to
assail the conviction can be summarised as
follows: (a) that it is a case of blind murder,
the FIR is ante-timed and with a view to
solve out the case the appellant, who is a
resident of Bihar with no support in the
area, has been falsely implicated; (b) the
testimony of PW-1 renders the testimony of
PW-3
and
PW-4
unreliable
and
unacceptable; (c) that PW-3 is a chance
witness whose presence at the spot appears
unnatural and her testimony that she
narrated everything to PW-1 is at variance
with what PW-1 states; (d) that PW-3
though speaks of being a witness of both
rape and murder but gives no description of
how the victim was murdered; (e) that
ligature marks found on the neck, have no
explanation in the ocular account and there
is no recovery of ligature, either from the
spot or from anywhere else; (f) that the
recovery of vest is completely bogus and,
otherwise also, the vest could not be
forensically connected with the crime; (g)
that the testimony of PW-4 that he saw the
accused - appellant running away from a
distance is also unreliable because the
standing crops would have blocked his
view, even otherwise, PW-3 could not
disclose the colour of clothes (vest and
knicker) worn by the accused-appellant
when PW-3 noticed him running away; (h)
that there is no presence of spermatozoa in
the swabs and clothes, hence, the offence of
rape cannot be said to be proved; and (i) the
prosecution is guilty of hiding the truth by
not seizing the trouser and shoes alleged to
be noticed by PW-4 near the body of the
deceased and by not carrying out DNA
profiling of the biological material that
could be recovered / noticed, or already
recovered, as per the mandate of section
53-A CrPC.

21. First, we shall examine whether
the FIR is ante-timed. To ascertain whether
an FIR is ante-timed, the court has to
carefully scrutinise not only the oral
deposition of the witnesses but also the
papers that are prepared in connection with
the investigation, inquest, autopsy, etc.
Ordinarily, papers relating to inquest,
autopsy including challan nash, etc bear the
details that are reflected in the Chik FIR, if
an FIR exists, because, as a matter of
course, where an FIR is registered, the I.O.
carries with him a copy of the entries in the
report, therefore, columns in prescribed
forms relating to various informational
fields are filled by having a look at it. In the
instant case, the Chik FIR discloses the
time of occurrence as 16.00 hrs and the
distance of police station to the place of
occurrence as 20 km. The inquest report
(Ex. Ka-9) which, as per the report, was
completed at 21.00 hrs on 24.02.2017
discloses the distance as 22 km. But the
inquest report bears the case crime number
of the case at hand. Therefore, merely
because of the discrepancy in the distance
mentioned in the inquest report with the
Chik report, it would not be appropriate for
us to hold that the FIR is ante-timed. Thus,
to probe further on the issue, we would
3 All. Upendra Vs. State of U.P.
117
have to refer to the deposition of the
witnesses. In the testimony of PW-1 (the
informant), during cross-examination, it
has come that the police arrived at the spot
at 4.00 pm and completed the inquest then.
Interestingly, the FIR has been lodged at
17.35 hrs, that is, at 5.35 pm. Importantly,
when PW-1 was further questioned as to
when he received copy of the FIR, PW-1
stated that he received it after few days.
The check report of the FIR (commonly
referred to as Chik report) is prepared in
triplicate, as per Regulation 97 of UP
Police Regulations, and one copy is to be
handed over to the informant then and
there. If copy was not given to the
informant on the day it was lodged, it
creates a doubt whether the FIR was lodged
at the time it is purported to have been
lodged. But, PW-1 is an aged person (aged
about 70 years), husband of the deceased
(who herself was aged 75 years), therefore,
may be in a state of shock he did not collect
the copy and may be his statement with
regard to inquest being conducted at 4.00
pm was an inadvertent error due to fading
memory or confusion. At this stage, we
may also notice the statement of PW-4
having a bearing on the issue. PW-4, during
cross examination, in vernacular, states as
follows: "Ghatna sthal par police bhi aa
gayi thi. S. P. saheb baad mein aye thhe.
Thana police kitne samay tak ghatna sthal
par rahi nahi bata sakta. Ghatna sthal se
hum thane chale gaye thhe.