Ashok Sharma vs State Of U.P.

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
CAPITAL CASES No. - 16 of 2021
Ashok Sharma
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Anil Kumar, Atul Pandey, Rajeev
Giri
Counsel for Respondent(s) : G.A.
Court No. - 49
HON'BLE AJAY BHANOT, J.
HON'BLE TARUN SAXENA, J.
[PER: HON'BLE AJAY BHANOT, J.]
1. The instant Capital Case arises out of a judgment rendered by
the learned Sessions Court in Session Trial No.- 67 of 2011 (State
Vs. Ashok Sharma) along with Session Trial No.- 53 of 2011 (State
Vs. Geeta Devi) arising out of Case Crime No. 911 of 2010 under
Sections 302, 201 I.P.C., P.S.- Chopan, District- Sonbhadra. The
learned Sessions Court by the impugned judgment dated
16.09.2021 has found the appellant guilty of the offence under
Section 302 I.P.C. and sentenced him to death along with fine of
Rs.50,000/- (in case of default of payment appellant is to serve one

year of additional rigorous imprisonment) . The learned trial court
has also convicted the appellant for the offence under Section 201
I.P.C. and has accordingly sentenced him to 7 years of
imprisonment along with fine of Rs. 20,000/- (in case of default of
payment appellant is to serve one year of additional
imprisonment).
2. Briefly put the prosecution case set out in the FIR is that on
21.12.2010 at about 04:00 a.m. Shravan Sharma son-in-law of the
first informant informed him that Gram Pradhan Chopan had told
the former by phone that Sunita and her daughter Jhalak aged
about three years had been done to death and burnt. Both the
victims had a saree tied in knots’ round their necks’. The first
informant then left for Chopan from his house at Mirzapur. On
reaching Chopan along with other family members he saw his
daughter Sunita and grand daughter Jhalak lay dead in the room. A
saree was tied round their necks’ and upper parts of the bodies’
were burnt. Charpoy and mattresses in the room were also burnt.
The first informant had a firm belief that Geeta (mother-in-law of
Sunita) and Ashok Sharma had murdered the victims and thereafter
burnt them. People in the vicinity had earlier informed him that
Ashok Sharma frequented Geeta’s house and the two had illicit
relations. Sunita came in the way of the said relationship, which
became the cause of her murder.
3. On a tehrir submitted by the first informant an FIR was
registered. Police investigations set in motion after the FIR
culminated in a chargesheet being filed against Geeta Devi and
Ashok Sharma on 27.01.2011 and 11.03.2011 respectively under
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Sections 302 and 201 I.P.C. Cognizance of the offences was taken
by the learned trial court on 11.03.2011.
4. Charges were framed against both the appellants by the learned
trial court on 06.01.2012 as under :
“प्रथम- यह कि दिनाँक 20/21.12.2010 की रात्रि में बहद स्थान ग्राम चोपन अन्तर्गत थाना चोपन
जिला सोनभद्र में आपने सह अभियुक्त गीता देवी के सहयोग से अपने सामान्य आशय की
पूर्ति में वादी मुकदमा की पुत्री सुनीता तथा उसकी नातिन झलक दोनों का गला साड़ी के फन्दा
से कस कर उनकी हत्या कर दिया। इस प्रकार आपने ऐसा कार्य करके धारा-302 सपठित
धारा-34 भा०दं०सं० के तहत दण्डनीय अपराध किया है। जो इस न्यायालय के प्रसंज्ञान में
है।
द्वितीय- यह कि उपरोक्त दिनाँक, समय व स्थान पर आपने वादी मुकदमा की पुत्री सुनीता तथा उसकी
नातिन झलक की साड़ी के फन्दा से गला कस कर हत्या करने के उपरान्त साक्ष्य मिटाने के
उद्देश्य से दोनों के शव को जला दिया था। इस प्रकार ऐसा कार्य करके आपने 201 भा०दं०सं०
के तहत दण्डनीय अपराध किया है। जो इस न्यायालय के प्रसंज्ञान में है।"
5. Evidences adduced by the prosecution to bring home the charges
are extracted below in tabular form:
Prosecution Witnesses
S.
Witness Witness No. Nature of
No.
Witness
1. Satish Kumar
P.W. 1 First Informant
Sharma
2. Reeta Devi P.W. 2 Eye
Witness/Niece
of deceased
Sunita
3. Manorama Devi P.W. 3 Neighbour
4. Sunil Sharma P.W. 4 Eye Witness
and Panch
Witness
5. Shivanand Mishra P.W. 5 IO
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6. Chandrabali P.W. 6 Head Moharrir
7. Dr Saurabh Rawat P.W. 7 Doctor who
conducted the
Post Mortem
Documentary Evidences
Exhibit Documents’ Proved by Date
Ex Ka-1 Written Report P.W.-1 Satish
31.03.2012
Kumar
Sharma
Ex Ka-2 Panchayatnama of
P.W.-1 Satish
31.03.2012
Jhalak
Kumar
Sharma
Ex Ka-3 Panchayatnama of
P.W.-1 Satish
31.03.2012
Sunita Sharma
Kumar
Sharma
Ex Ka-4 Site Plan P.W.-5 Shiva
21.08.2017
Nand Mishra
Ex Ka-5 Recovery Memo
P.W.-5 Shiva
31.03.2012
of Saree, Burnt
Nand Mishra
Cloth with Ash
and One Bottle
Kerosene Oil
Ex Ka-6 Charge Sheet P.W.-5 Shiva
21.08.2017
Nand Mishra
Ex Ka-8 chick F.I.R P.W.-6 Head
16.04.2018
Moharrir
Ex Ka-9 G.D. Entry No. 14 P.W.-6 Head
16.04.2018
Moharrir
Ex Ka-10 Post-mortem of P.W.-7 Dr 16.04.2018
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Jhalak Saurabh
Rawat
Ex Ka-11 Post-mortem of
P.W.-7 Dr
16.04.2018
Sunita Sharma
Saurabh
Rawat
Material Evidence
S. No Material Exhibit
1. Recovered Saree Material Exhibit
Ka-1
2. Burnt Cloth Material Exhibit
Ka-1
3. Bottle of Kerosene Oil Material Exhibit
Ka-1
6. The evidences shall be appraised in light of the fundamental
aspects of the prosecution story and in the following sequence.
I. FIR.
7. P.W.1 deposed that information regarding the incident was
received by him on 21.12.2010 at about 04:00 a.m. He
immediately set out for Chopan along with his wife and two
persons from the neighbourhood.
8. P.W. 1 further testified that he arrived with his party at the site of
incident between 6:45 AM to 7 AM. The tehrir was dictated by him
at the site of the incident to a scribe who took it down in writing.
After affixing his signatures to the tehrir he got the criminal case
registered at the police station. P.W. 1 identified his signatures and
proved the tehrir which was marked as Ex. Ka 1.
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9. On the footing of the aforesaid tehrir the FIR was got registered
at 7:25 AM on 21.12.2010 as Case Crime No. 911 of 2010, P.S.
Chopan, District Sonbhadra under Section 302, 201 I.P.C. Head
Constable Chandrabali, Head Moharrir/P.W. 6 had recorded the
chick and proved the FIR which was marked as Ex. Ka-8. P.W. 6
also proved the G.D. entry relating to the FI.R., which was marked
as Exh. Ka 9.
Inquest Report:
10. P.W. 1 testified that after lodgement of F.I.R. the police party
came to the spot. The relevant documents were also drawn up by
the officials and police party after reaching the site of the incident.
11. Recitals in the inquest report disclose that the I.O. Shivanand
Mishra (P.W. 5) constituted a police team and reached the site of
incident. The inquest proceedings were conducted till about 11:15
AM on 21.12.2010. The first informant Satish Sharma (P.W.1) as
well as Sunil Sharma (P.W. 4) were witnesses to the inquest report.
12. The inquest report records that the bodies of the deceased
Jhalak and Sunita were lying at the doorstep of the middle room
and the center of the room respectively. Presence of family
members of the deceased and persons residing in the locality find
mention in the inquest report. In the opinion of the inquest
witnesses the deceased were murdered. A saree was tied in knots’
round the necks’ of the deceased persons. An attempt to burn the
bodies was also visible. The inquest reports of both the deceased
was proved by Satish Kumar Sharma-P.W.1, and marked as Exhs.
Ka 2 and Ka 3 respectively. Sunil Sharma-P.W.4, was present
during the inquest proceedings and identified his signatures on the
inquest report.
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Recovery Memo:
13. Various articles were recovered from the incident site by the
investigation officer. Recovery Memo drawn up at the place of the
incident investigation officer on 21.12.2010 depicts recovery of the
following articles:
(a). A saree, entangled around the bodies of the deceased. (As per
the recovery memo the saree was tied round the necks’ of both the
deceased persons.)
(b). One bottle, which was smelling of kerosene oil, and one burnt
piece of cloth.
14. The recovery memo was proved by the Investigation Officer,
P.W.-5 Shivanand Mishra and marked as Exhibit Ka 5. P.W.-1,
Satish Kumar Sharma and P.W.-4, Sunil Sharma were witnesses to
the recovery.
Site Plan:
15. IO/P.W. 5 has deposed that the site plan was drawn up by him
after reaching the site on 21.12.2010, at the pointing out of the first
informant Satish Kumar Sharma/P.W..1. The site plan records that
the house where the incident occurred belongs to Geeta Devi.
16. The site plan indicates the following points:
(a). Place of incident.
(b). Place from where the burnt cloth and bottle of kerosene oil
were respectively found.
17. The site plan was proved by its author IO/P.W. 5.
18. It is noteworthy that the site plan does not depict the following:
(a) Position of the bodies,
(b) Place from where the eye witness had seen the incident,
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(c) Place of recovery of saree, which was tied round the necks of
the deceased persons.
Material Exhibits:
19. Recovered articles namely saree, burnt cloth/saree, bottle of
kerosene oil was produced in sealed condition in court. The said
articles were then identified and proved by P.W. 5 and marked
collectively as Material Exhibit Ka-1
Bodies sealed and sent for PM
20. After the inquest report and other proceedings at the site of the
incident were complete, the bodies were sealed and were made
over to C.P. 713 Manoj Kumar and C.P. 676 Krishna Mohan. The
said persons took the bodies to the hospital for postmortem on
21.12.2010.
Cause of Death: PM Report
21. The postmortem of both the deceased was conducted by a
panel of doctors comprising Dr. Saurabh Rawat and Dr. D.K.
Singh. Post-mortem of Jhalak Sharma was conducted on
21.12.2010 at 4:00 P.M. Post-mortem of Sunita Sharma was
conducted on 21.12.2010 at about 04:25 P.M.
22. The post-mortem report of the deceased, Jhalak Sharma
(Exhibit Ka-10), records ante-mortem injuries, cause of death, and
time of death as follows:
“ Ante-mortem injuries-
1. Dermal, epidermal burn injury all over head, forehead, in front of right arm and
shoulder, upper part of right fore arm front side.
2. Dermal, epidermal burn injury over lateral right chest, and upper part of lateral
thigh.
3. Upon examination of neck, Trachea was found contused and Larynx, Trachea
and Bronchi were found congested.
External Examination:
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Rigor Mortis present all over the body. Right eye partially open and left eye
closed.
Cause of Death - Asphyxia as a result of ante-mortem throttling.
Time of Death - Approx 12 hours before the Post-Mortem.
23. Post Mortem report of deceased Sunita Devi:
The relevant extracts of post mortem report of Sunita Devi
depicting the ante-mortem injuries, cause of death and time of
death are as under :
“ External injuries (ante-mortem):
1. Abraided contusion 4 × 5 cm over upper lip right side lower lip.
2. Abraided contusion 04 × 03 cm over chin.
3. Abraided contusion 09 × 0.5 cm over right side neck in upper part below 04 cm
of right ear.
4. Burns were present over the entire forehead, the right side of the face, the upper
part of the left side of the face, and the right forearm(including the hand).
External examination :
Rigor Mortis present all over the body.
The uterus was bulky, containing a female child of 26-30 weeks approximately.
The face was cyanosed (bluish) and the mouth was open. Urethral discharge was
present which had dried. No bone joints were fractured.
Upon examination of neck, Trachea was found contused and Larynx, Trachea and
Bronchi were found congested.
Cause of death- Death due to Asphyxia as a result of ante-mortem throttling.
Time of Death - Approx 12 hours before the Post-Mortem.
24. Dr. Saurabh Rawat, who had conducted the post mortem report
entered the witness box as P.W.7. P.W.7 proved the postmortem
reports and their contents. The postmortem of two deceased
persons namely Jhalak Sharma and Sunita Sharma were then
marked as Exhs. Ka-.10 and Ka-11 respectively.
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25.Under cross-examination P.W.-7, Dr. Saurabh Rawat stated that
the burn injuries were postmortem and no carbon articles were
found in trachea.
ORAL TESTIMONIES:
P.W. 1 Satish Kumar Sharma
26. Satish Kumar Sharma-first informant while deposing as P.W. 1
stated that Sunita Sharma was married to Shravan Kumar for 12
years. Shravan Kumar was employed in the Railways and was
posted in Rajasthan at the relevant point in time. Sunita and her
daughter Jhalak were residing with Geeta Devi (mother-in-law of
Sunita) in Chopan. P.W.-1 stated that he was informed on phone by
his son-in-law of the murders. P.W.-1 immediately reached Geeta
Devi’s house at Chopan with his wife and two neighbours. Geeta
Devi was present at the house. Describing the condition of the
bodies, P.W.-1 deposed that the bodies of Sunita and Jhalak were at
the doorstep, a saree was tied in knots’ round their necks’. Sunita’s
face had some injury and burn marks.
27. P.W.-1 testified that he often visited Sunita’s house. During
those visits he came to know about the illicit relations of the
accused persons. P.W.-1 further deposed that Sunita had also
informed him about the same. Sunita had found Geeta and Ashok
in a compromising position and after upbraiding them had asked
Ashok not to visit them again. The accused persons killed Sunita
for being a hurdle in the relationship.
P.W. 2 Reeta Devi
28. Before the learned trial court P.W. 2 claimed to be an eye
witness to the incident, and that Sunita was her niece. P.W. 2 in her
10

deposition stated that on the fateful day she had gone to Vaishno
Devi Temple, Dala. While returning she decided to spend the night
at Sunita’s house as it had become dark. Sunita, her mother-in-law,
Geeta and Jhalak were present when she reached their house. Later
Ashok also arrived. There was an altercation between Sunita and
Ashok regarding his visits to their house. After having dinner
Sunita, Jhalak, Geeta Devi and Ashok retired to one room; while
she went to sleep in the adjacent room.
29. P.W. 2 testified that she was awakened at about 2-3 AM by
some commotion. She went to Sunita’s room and found it locked
(from inside). She peered into the room through a crack in the
door. P.W.2 deposed that she saw Geeta Devi had muffled Sunita’s
face, while Ashok was strangulating Sunita with a saree. Jhalak
was strangulated to death by the same saree after she was woken
up by the noise.
30. According to P.W. 2, she was petrified after seeing the incident
and fled to the fields for safety and hid herself. In the morning she
went to the neighbour Manorama’s (P.W. 3) house and narrated the
incident to her. Later she described the incident to Sunita’s
maternal family and the police party who had reached the site.
P.W. 3 Manorama Devi
31. Manorama Devi who is a neighbour of the deceased Sunita
entered the witness box as P.W. 3. P.W.-3 in her testimony stated
that the incident occurred in winter month at about 03-04 A.M.
P.W. -3 deposed that she went to Geeta’s house on hearing her
cries, and found her alone. The deceased Sunita and her daughter
were lying on the bed. The cot in the room was in flames. Some
persons were trying to douse the fire.
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32. Under cross-examination P.W. 3 testified that Geeta was crying
out loud that her house was on fire. P.W.-3 also stated that she did
not see Geeta at her house then quickly clarified that she had not
seen the occurrence.
P.W. 4 Sunil Sharma
33. Sunil Sharma, while deposing as P.W. 4 stated that on the
fateful day he and his wife were returning from Vaishno Devi,
Dala. The couple decided to spend the night at Geeta Devi’s house
as it had become late. When they reached Geeta Devi’s house they
met Geeta Devi, Sunita, her daughter Jhalak. Later Ashok @
Babaji also came to the house. Sunita admonished Babaji and told
him not to visit the house in future. Thereafter, P.W. 4 and his
wife/P.W. 2 went to sleep in one room. Sunita, Jhalak Geeta Devi
and Babaji retired to the adjacent room.
34. P.W. 4 then states that he and his wife/P.W. 2 woke up on
hearing some noise at about 2 AM. They peeped through a gap in
the door of the adjacent room. A light was glowing in the room.
They saw Geeta Devi had bound down Sunita’s feet with her hands
while Ashok @ Babaji was strangulating Sunita with a saree. At
that moment Sunita’s three year old daughter woke up. Ashok and
Geeta strangulated the little girl to death with the same saree.
35. P.W. 4 then deposed that he and his wife/P.W. 2 got scared by
what they saw and escaped to the fields and hid there. Later they
narrated the whole incident to Manorama Devi/P.W. 3. They used
Manorama Devi’s mobile to call Sunita’s family members in the
morning.
36. According to P.W. 4 Ashok and Geeta Devi had set the cot on
fire to burn the two bodies. People from the neighbourhood doused
the fire.
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P.W. 5 Shivanand Mishra, the Investigating Officer
37. Shivanand Mishra- Investigating Officer entered the witness
box as P.W.5. P.W.5 in his testimony described the procedure of the
investigation. According to P.W.5, he recorded the statement of
Manorama Devi on 21.12.2010. On the same day, in parcha no. 1-
B, he recorded the statement of eye witness Reeta Devi and
thereafter recorded the statements of other witnesses. He arrested
Geeta Devi on 23.12.2010, as depicted in parcha no. 3. The
accused/appellant Ashok Sharma was absconding and was
thereafter arrested on 11.03.2011 after taking out proceedings
under Section 82 CrPC. According to P.W.5 as per the investigation
there was only one eye witness to the incident, namely Reeta Devi/
P.W. 2
Submissions on behalf of the Accused-Appellant:
38. Shri Vinay Saran, learned Senior Counsel and Amicus Curiae
assisted by Shri Pradeep Kumar Mishra, learned counsel and
Amicus curiae and Shri Atul Kumar Pandey, learned counsel and
Amicus Curiae have made the following submissions on behalf of
the accused-appellant:
I. The appellant Ashok Sharma has been nominated solely on the
basis of suspicion and hearsay.
II. The eye-witnesses are not reliable. The testimonies of the eye-
witnesses are beset with contradictions and their conduct was
unnatural. The testimonies of the eye-witnesses are not worthy of
belief.
IV. P.W. 5 stated that only P.W. 2 was the eyewitness, while P.W. 1
testified that there was no eyewitness to the incident.
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V. There are material contradictions in the testimonies of P.W. 2
and P.W. 4 as regards the incident. P.W. 2 and P.W. 4 were also
contradicted by P.W. 3.
VI. Medical evidence squarely negates the statements of P.W. 2
and P.W. 4.
VII. The motive of the appellant to commit the offence was not
proved by applicable standards of evidence. There is no evidence
to establish the presence of the appellant at the site of the incident.
VIII. The prosecution could not prove the case beyond reasonable
doubt.
IX. The case did not fall in the category of rarest of rare cases and
the death penalty was imposed without due consideration of
relevant factors.
Submissions of the learned AGA on behalf of the State:
39. Shri Amit Sinha, learned AGA, made the following
submissions:
I. The prosecution case is supported by reliable eye-witnesses.
II. The FIR was promptly registered and the prosecution case
stated therein inspires confidence.
III. The prosecution case is supported by reliable testimonies of
two eye-witnesses.
IV. The recovery made at the site corroborates the prosecution
case.
V. The prosecution proved the case beyond reasonable doubt.
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VI. The offence comes in the category of the “rarest of rare cases”
inasmuch as a pregnant mother and her minor daughter were done
to death by the accused-appellant and his accomplice.
Appraisal of Evidence
I. F.I.R.
40. The FIR was got registered by the father of the deceased
Sunita. The timeline in the FIR matches other prosecution evidence
including the inquest report, recovery memo, and post-mortem
report. There is no inordinate delay in the lodging of the FIR.
However, the veracity of the prosecution case set out therein needs
to be determined after a composite appraisal of evidence.
II. Date, Time and Place of Incident
41. Various evidences including the FIR, inquest report, recovery
memo, post-mortem report and statements of P.W. 1 and P.W. 3
show that the incident occurred at the house of Geeta Devi in the
intervening night of 20/21.12.2010 or small hours of 21.12.2010.
III. Culpability of the appellant in light of the prosecution
evidence and reliability of P.W. 2 and P.W. 4 as eye witnesses
42. Credibility of P.W.2 and P.W. 4 as eye witnesses will now be
examined.
43. P.W.2 claims to be a close relative of the deceased as well as
first informant. P.W.2 in her testimony under cross-examination
admitted that the fact of light bulb glowing in the room when the
incident occurred was stated by her for the first time before the
Court, and that she had never disclosed the aforesaid fact to the
I.O. The said statement is clearly an afterthought and improvement
in the prosecution case made by the P.W.2.
15

44. The P.W.2 watched her niece and grand niece being
strangulated to death as a silent spectator. She did not raise a hue
and cry to call for help from the neighbours. The house where the
incident occurred is located in a densely inhabited area as there are
number houses in the neighbourhood. This is borne out from the
testimony of P.W. 1. P.W. 2 also failed to call the police authorities
or inform P.W.1 about the incident in the first instance. P.W. 2 was
present at the time of the inquest proceedings. However, she failed
to tell the investigation officer about the incident even at that point
in time. The conduct of P.W. 2 is unnatural.
45. P.W.2 further claims to have informed P.W.3 in the early hours
of morning. However, testimony of P.W.3 does not support the
aforesaid fact.
46. The examination-in-chief of P.W.-2 does not indicate the
presence of P.W.-4 at the time of the incident. P.W.2 introduced
her husband as an eye witness for the first time while under cross
examination. Under cross-examination P.W. 2 deposed that her
husband had accompanied her to Sunita’s house, and the couple
were sleeping in the room adjacent to the place of incident. The
belated disclosure of P.W.4’s presence as an eye witness also
contradicts her testimony in the examination in chief and raises
grave doubts about her reliability as a witness.
47. In fact presence of P.W. 4 as an eye witness further impeaches
the credit of P.W. 2. There was no reason for the couple for not
raising an alarm to call for help from the neighbourhood or for
failing to alert the police. The testimony of P.W.2 in her
examination in chief that she became scared after watching the
incident and rushed to the fields for safety becomes further
suspect. The presence of her husband should have been reassuring
16

and a source of strength for her. Particularly, when the two accused
persons are much more aged persons and none of them was armed.
48. There is another fault line in the testimony and conduct of P.W.
2. As per the statement of P.W. 1, Geeta Devi was present when he
reached the site of incident. P.W. 2 claims to have been present at
all relevant times. She did not inform the police authorities about
Geeta Devi and the appellant even when they arrived at the site
after the lodgement of the FIR.
49. Most importantly under further cross-examination P.W. 2 stated
that she came to know about the incident in the morning and
informed her husband about it.
50. In the wake of preceding discussion in view of the aforesaid
inconsistencies, improvements and unnatural conduct, the credit of
P.W.2 as an eye witness stands fully impeached and her testimony
in respect of the incident is liable to be discarded in its entirety.
51. The P.W.-4 claims to have watched the incident with his wife
silently and thereafter fled to the fields for safety. P.W.-4 also did
not raise an alarm to alert the neighbours and call for help as seen
earlier. The incident occurred in Geeta Devi’s house which was in
a densely populated neighbourhood. P.W.-4 also failed to inform
the police at any time during or after the incident.
52. The deceased persons were being attacked by two elderly
persons who were unarmed. This not only makes the silence of
P.W.-4 and P.W.2 inexplicable, but also raises questions as to why
they did not physically come to the rescue of the victims. There is
no cogent reason why P.W.-4 and P.W.-2 avoided physical
intervention to save the victims.
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53. P.W. 1 testified that Geeta Devi was present when he reached
the site of the incident. P.W. 4 has deposed that he was present
throughout the episode and P.W.1 had arrived at 4:00 a.m.
However he did not inform P.W. 1 about his witnessing the
incident and complicity of Geeta Devi and Ashok Kumar at any
point in time.
54. P.W.-4 was also present when P.W.-1 arrived with the police
party at the site. P.W.-4 was a witness to the inquest and recovery
proceedings along with P.W.-1. However, he remained silent at all
relevant times. Had P.W.4 informed the police party on their arrival
Geeta Devi would have been arrested at the spot. The aforesaid
conduct of P.W.-4 is wholly unnatural considering the fact that he
is a close relative of P.W.-1.
55. P.W.-4 claims to have informed P.W.-3 about the incident in the
morning. The aforesaid statement is falsified by the testimony of
P.W.-3.
56. Under cross-examination P.W.-4 testified that Geeta Devi was
arrested at the spot. The aforesaid statement was contradicted by
the testimony of P.W.5 who had effected the arrest. P.W.-5 deposed
that Geeta Devi was arrested at the Chopan Bus Stand on
23.12.2010. The arrest memo drawn up by P.W. 5 which depicts
the said facts pertaining to the arrest is paper No. 42Kha/7 in the
records of the trial court.
57. P.W.-5 has also deposed that P.W.-4 did not inform him that
Reeta Devi was his wife. In fact, P.W.5 under cross-examination
has stated that Reeta Devi was present when he reached the site.
This conduct of P.W.-4 of keeping the said information from the
I.O. also creates a suspicion about the veracity of his deposition.
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58. Under further cross-examination P.W. 4 stated that he was first
informed about the incident by P.W.3, and that his statement
regarding the incident is based on what P.W. 3 had narrated to him.
59. P.W. 1 has testified that there was no eyewitness to the
incident. Furthermore, the I.O./P.W.-5 has deposed that P.W.-2 was
the only eye witness and further categorically stated that P.W.-4
was not an eye witness to the incident.
60. In the light of the preceding discussion and considering the
contradictions and the unnatural conduct of P.W. 4, the credit of
P.W. 4 is wholly unreliable and his testimony as a witness is
completely discarded.
61. The absence of ligature marks on the necks of both the
deceased persons, and the opinion of the doctor that the cause of
death was asphyxia as a result of ante mortem throttling are
undisputed. The post mortem reports (Exh Ka-10 and Exh Ka-11)
and testimony of the doctor/P.W. 7 are medical evidences of high
credibility. The medical opinion completely negates the contrary
version of P.W. 2 and P.W. 4 that both the deceased persons were
strangulated to death by a saree.
62. There are material contradictions regarding the manner in
which the deceased Sunita was murdered, in the testimonies of
P.W. 2 and P.W. 4. P.W.2 has testified that Geeta Devi had muffled
Sunita’s face while P.W.2 has deposed that Geeta Devi had bound
down Sunita’s feet with her hands.
63. The aforesaid inconsistencies, improvements and unnatural
conduct of P.W.-2 and P.W.-4 raises doubts about their presence at
the time of incident. In the wake of the preceding discussion, this
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Court finds that the credit of P.W.-2 and P.W.-4 as eye witnesses
was successfully impeached in the trial.
64. P.W.-2 and P.W.-4 are wholly unreliable witnesses and their
testimonies claiming to be eye witness are not worthy of belief and
are discarded in entirety.
Presence of the Appellant-accused Ashok Sharma
65. There is no other evidence to establish the presence of the
accused-appellant Ashok Sharma at the time of the incident or at
any stage proximate to the incident. The appellant Ashok Sharma
does not ordinarily reside at Hargarh, P.S. Jigna, District Mirzapur.
He is a resident of another village.
66. The ocular testimony of P.W. 2 and P.W. 4 were the sole pivots
of prosecution case against the accused-appellant Ashok Sharma
minus the testimonies of P.W. 2 and P.W. 4 there is no other
incriminating evidence to implicate the appellant-accused in the
instant case is in the record.
Impugned Judgement:
67. The learned trial court in the impugned judgment has entirely
erred in law by upholding the credibility of two witnesses, namely
P.W.2 and P.W.4 while returning the conviction against the
appellant Ashok Sharma. The learned trial court thus erred in fact
and in law by rendering the impugned judgment in respect of the
appellant- Ashok Sharma.
68. This Court finds that the impugned judgment rendered by the
learned trial court is liable to be set aside and is accordingly set
aside only to the extent it finds the appellant guilty of offence
under Section 302 read with Section 201 I.P.C. and imposes
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punishment of life imprisonment upon the appellant-Ashok
Sharma.
Conclusions
69. In light of the preceding discussions, this Court finds that the
prosecution has failed to prove the charges under Section 302 read
with Section 201 IPC against the appellant-accused Ashok Sharma
beyond reasonable doubt. The appellant-accused Ashok Sharma is
hereby acquitted of the charges for which he was tried and which
are subject matter of this appeal.
70. The appellant-accused Ashok Sharma shall be released
forthwith from prison, unless wanted in any other criminal case.
71. The Capital Appeal No. 16 of 2021 is accordingly allowed.
72. A copy of this judgement translated in Hindi to be served upon
the appellant by the Secretary, District Legal Services Authority.
(Tarun Saxena,J.) (Ajay Bhanot,J.)
July 8, 2026
Ashish/Dhananjai/Vandit
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Digitally signed by :-
VANDIT AGRAWAL
High Court of Judicature at Allahabad