Jag Prasad Yadav @ Jaggu vs State Of U.P.
- Court
- Allahabad High Court
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HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
JAIL APPEAL No. – 589 of 2021
Jag Prasad Yadav @ Jaggu …..Appellant(s)
Versus
State of U.P. …..Respondent(s)
Counsel for Petitioner(s) : Jail Appeal, Girish Kumar Dwivedi,
Shreesh Kumar Mishra Atal
Counsel for Respondent(s) : G.A.
Court No. -10
Reserved on 18.03.2026
Delivered on 27.05.2026
AFR
HON'BLE RAJNISH KUMAR, J.
HON'BLE ZAFEER AHMAD, J.
(Per : Rajnish Kumar, J.)
(1) The instant jail appeal has been preferred by convict/appellant,
Jag Prasad Yadav alias Jaggu , assailing the judgment and order
dated 19.04.2019 passed by Special Judge (S.C./S.T. Act),
Faizabad, in Sessions Trial No. 171 of 2015 (Computer
Registration No. 792 of 2015); State Versus Jag Prasad Yadav
alias Jaggu, emanating from Case Crime No. 102 of 2015, under
Sections 302, 307, 323 of the Indian Penal Code, 1860 (here-in-
after referred to as “ I.P.C. ”) and Section 3(ii)(v) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 (here-in-after referred to as “ SC/ST Act ”) , Police Station
Kumarganj, District Faizabad.
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(2) The case of the prosecution, in short, is that complainant,
Ramlautan son of Suraju, resident of village Sakir Pithala, Police
Station Kumarganj, district Faizabad, had submitted a written
complaint at police station Kumarganj, district Faizabad on
22.04.2015, alleging therein that on 22.04.2015, a wedding
procession ( ) had come to his village. In that procession, a
ckjkr
person from his village, Jaggu alias Jagprasad Yadav son of late
Ram Naval Yadav, had torn to shreds the motorcycle etc. and
when the wedding party chased him from there, he (Jaggu alias
Jagprasad Yadav) went to the door of Suraju of his village and
picked up a boy, Shagun, aged 3½ years and a girl aged 1 year,
lying on a cot at the door, who had come to their maternal home
and thrown them into a nearby well at about 11:00 in the night.
Upon hearing the children crying, nearby villagers took them out
of the well and rushed them to Kumarganj hospital, where the
doctor declared Shagun dead, while the girl survived. The dead
body is lying on the road in front of the doctor. The boy Shagun is
of Scheduled Caste community and the aforesaid Jaggu is of non-
Scheduled Caste community. Information is being given, the
appropriate action may be taken.
(3) On the basis of the aforesaid report, F.I.R., bearing No.102 of
2015, under Sections 302 I.P.C. and Section 3 (2) (v) of the
S.C./S.T. Act was registered at police station Kumarganj, Faizabad
on 23.04.2016 at 00:10 hours.
(4) The investigation of the case was conducted by Circle Officer
Navin Kumar Nayak. He, after getting copy of F.I.R., recording of
the evidence of complainant and scriber of the F.I.R., reached the
place of occurrence and prepared the site plan. Thereafter, S.I.
Ram Bachan Ram had prepared the inquest report of the dead
body of deceased Shagun. He, after collecting all the papers, sent
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the dead body of Shagun for post-mortem. He also sent mother of
deceased, namely, Rekha wife of Dharamraj for medical
examination.
(5) The post-mortem of the dead body of the deceased Shagun was
conducted on 23.04.2015 at 03:05 P.M. at District Hospital,
Faizabad by Dr. Gulrez Ahmad. On external examination, he
found that height of the deceased was 81 C.M.; her body was
well-built; her eyes and mouth were semi open; rigor mortis was
present; and there was no visible injury on the body of the
deceased. On internal examination, blackish layer seen in upper
part trachea and in larynx over mucosa; left and right chamber of
heart full; there was no smell from the stomach; stomach wall was
normal and containing 50 ml black coloured material; in small
intestine, normal pasty material with gasses fecal material with
gases in large intestine; gall bladder half full. As per his opinion,
cause of death could not be ascertained, hence viscera was
preserved and handed over to concerned constable.
(6) The medical examination of the injured Rekha was conducted by
Dr. Arun Kumar at Community Health Centre, Milkipur, Faizabad
on 23.04.2015 at 12:05 P.M. In the medical report, following
injuriers were found :-
1. Contused swelling 5 cm x 4 cm on dorsal aspect of Rt.
foot just below Rt. ankle joint. Red in colour. X-ray
advice.
2. Contusion 6 cm x 3 cm on outer aspect of Rt. leg 11
cm below Rt. knee. Red in colour.
3. Complaint of headache.
As per his opinion, duration of injuries was within 24 hours; all
the injuries were caused by hard and blunt object and simple in
nature except injury no.1, which was referred to District Hospital
Faizabad for x-ray.
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(7) On reference, x-ray of the right foot was conducted at District
Hospital, Faizabad by Dr. Gulrez Ahmad on 23.04.2015. No
fracture was found.
(8) The Investigating Officer C.O. Navin Kumar Nayak, after
collecting material evidence, had forwarded charge-sheet against
the accused, Jaggu alias Jag Prasad Yadav under Sections 302,
323, 307 I.P.C. and Section 3 (2) (v) of S.C./S.T. Act on
06.05.2015.
(9) The Chief Judicial Magistrate, Faizabad took cognizance of the
aforesaid charge-sheet and committed the case to the Court of
Sessions by means of order dated 14.07.2015, where the case was
registered as Sessions Trial No. 171 of 2015 (Computer
Registration No. 792 of 2015); State Vs. Jag Prasad Yadav alias
Jaggu. On being committal of the case, learned Special Judge
(S.C./S.T.) Act, Faizabad had framed charges against the accused
under Sections 302, 307, 323 I.P.C. and Section 3 (2) (v) of the
S.C./S.T. Act. The accused denied the charges and pleaded for
trial.
(10) The prosecution, in support of its case, examined nine witnesses,
which are as under :-
P.W.1-Ramlautan Complainant
P.W.2-Rekha Injured/mother of deceased
Sugun and Payal
P.W.3-Suraju Witness of Inquest Report
P.W.4-Constable Ashish
Srivastava
Prepared check F.I.R. on
the basis of written report
of complainant
P.W.5-Dr. Gulrez Ahmad Conducted post-mortem of
the deceased Shagun and
medical examination and x-
ray of injured Rekha at
District Hospital, Faizabad
P.W.6-C.O. Naveen Kumar
Nayak
Investigating Officer
P.W.7-S.I. Ram Bachan Prepared Inquest Report
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Ram
P.W.8-Const. Indrajeet
Sharma
Witness of panchayatnama
P.W.9-Dr. Arun Kumar Conducted medical
examination of injured
Rekha at Community
Health Centre, Milkipur,
Faizabad
(11) In addition to the aforesaid, the prosecution, in order to prove its
case, has placed on record following documentary evidence and
proved it :-
Ext. Ka. 1 Written Report
Ext. Ka. 2 Check F.I.R.
Inquest Report
Ext. Ka. 3 Copy G.D. entry dated
23.04.2015
Ext. Ka. 4 Letter to C.M.O.
Post-mortem report of
deceased Sugun
Ext. Ka.5 Sample seal of dead body of
the deceased Sugun
X-ray report of injured Rekha
Ext. Ka. 6 Photo lash
Site Plan
Ext. Ka. 7 Challan lash
Charge sheet
Ext. Ka. 8 Injury Report of injured Rekha
(12) The prosecution had also placed on record the report dated
01.10.2015 of Forensic Science Laboratory, Uttar Pradesh,
Mahanagar, Lucknow.
(13) After closer of the evidence of prosecution, the statement of the
accused Jag Prasad Yadav alias Jaggu under Section 313 Cr.P.C.
was recorded, in which he stated that he is innocent and he has no
connection with the incident. He has not committed the incident.
The F.I.R. of the case was lodged in connivance with the police.
The investigation of the case was tainted. He further states that
witnesses have adduced false evidence on account of enmity on
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the basis of suspicion and he would produce evidence in his
defence. However, no evidence was produced in defence.
(14) The trial Court, after affording opportunity of hearing to learned
Government Counsel and the defence and appreciation of oral and
documentary evidence and other material on record, acquitted the
accused Jag Prasad Yadav alias Jaggu for the offence under
Section 3 (2) (v) of the S.C./S.T. Act, however, convicted and
sentenced him by means of judgment and order dated 19.04.2019
in the manner as stated here-in-below :-
I. Under Section 302 I.P.C. to undergo life imprisonment
and a fine of Rs.10,000/-. In default of payment of fine
to undergo 3 months’ imprisonment;
II. Under Section 307 I.P.C. to undergo 7 years’ R.I. and
a fine of Rs.5000/-. In default of payment of fine to
undergo 2 months’ imprisonment;
III. Under Section 323 I.P.C. to undergo 6 R.I.(It would be
6 months) and a fine of Rs.500/-. In default of
payment of fine to undergo one month’s
imprisonment.
All the sentences have been directed to run concurrently and
the period already undergone would be adjusted in sentence.
(15) Being aggrieved by the impugned judgment and order of
conviction and sentence, the appellant has preferred the instant jail
appeal before this Court.
ARGUMENTS
(16) Heard, Shri Shreesh Kumar Mishra Atal, learned Amicus Curiae
for the appellant and learned A.G.A. for the State.
(17) Learned Amicus Curiae for the appellant submitted that impugned
judgment and order has been passed without considering the
evidence and material on record and dealing it appropriately. He
further submitted that the prosecution has failed to establish any
motive for the commission of offence. There are material
contradictions and discrepancies in the evidence of the
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prosecution witnesses of fact. P.W.1 is not an eye witness. P.W.2
claims to be an eye witness, but her testimony is not reliable for
the reason that it is highly improbable that the accused-appellant
could have picked two children from near her and thrown them in
a well at a distance. The post mortem report and the injuries have
not corroborated the prosecution case, as no injury was found on
the body of the deceased and the cause of death could not be
ascertained. The Viscera report was also negative. He also
submitted that the instant case is of circumstantial evidence and
the prosecution has failed to establish chain of circumstances. He
also submitted that if two views are possible, then the benefit of
doubt must be given to the accused-appellant. There was no
independent witness to the occurrence and all the witnesses are
related witnesses and the evidence of the injured witness is also
not reliable as he is also a related witness.
(18) On the basis of the above submissions, learned Amicus Curiae for
the appellant submitted that the prosecution has failed to prove it's
case beyond reasonable doubt, therefore, the conviction of the
appellant could not have been recorded and, thus, the impugned
judgment and order is not sustainable in the eyes of law and is
liable to be set aside and the appellant is liable to be acquitted. He
relied on Amar Nath vs The State of U.P; 2023 SCC OnLine SC
1322 , Alauddin vs State of Assam; AIR 2024 SC (criminal)756 ,
Anand Ramachandra Chougule vs Sidarai Laxman Chougule;
AIR 2019 Supreme Court 3871 , Balaji Gunthu Dhule vs State
of Maharashtra; AIR 2013 Supreme Court 264 , Abdul Wahid &
another vs State of Rajasathan; 2025 SCC OnLine SC 453 ,
Krishnegowda vs State of Karnataka by Arkalgud Police; AIR
2017 Supreme Court 1657 , Baso Prasad and others vs State of
Bihar; AIR 2007 Supreme Court 1019 , Mohar Singh and others
vs State of Punjab; 1981 SCC (Cri) 638 .
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(19) Learned AGA vehemently opposed the submissions of learned
counsel for the appellant. He submitted that the impugned
judgement and order has rightly been passed in accordance with
law, by means of which the appellant has been convicted and
sentenced. He further submitted that the prosecution has proved
it's case beyond reasonable doubt by adducing evidence of an eye
witness, who was also an injured witness and mother of the
deceased, which stands corroborated by the medical evidence
relating not only to the injured witness but also to the deceased.
Merely because she is related witness, her testimony could not
have been discarded. It is settled in law that the related that too an
injured witness would not implicate an innocent person, leaving
the culprit. Merely because the witness is the mother of the
deceased, whose three and a half year son was killed and whose 1
year daughter was also thrown and sustained injury in the eye but
survived, her testimony cannot be discarded. He also submitted
that the motive has also been proved by P.W.2. Thus, he submits
that the impugned judgment and order has rightly been passed in
accordance with law. There is no illegality or error in it, which
may call for any interference by this Court. The appeal has been
filed on misconceived and baseless grounds, which is liable to be
dismissed.
(20) We have considered the submissions of learned counsels for the
parties and perused the records.
(21) The written report dated 22.04.2015 was submitted at the Police
Station by P.W.1 Ram Lotan, on the basis of which, F.I.R. was
lodged at 00.10 hours on 23.04.2015, with regard to the
occurrence on 22.04.2015 at 23:00 hours, i.e., within a period of 1
hour 10 minutes. The distance between the police station and the
place of incident is three kilometers. P.W.1 as well as P.W.2 have
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coherently deposed regarding the occurrence, which took place at
11:00 p.m. on 22.04.2015. P.W.2 has also stated in her cross
examination that after about 10 minutes when the children were
brought out from the well, her uncle and villagers took them to the
hospital.
(22) P.W.1 who is uncle of P.W.2 has stated that after the death of the
child, he got the report written by Arvind Singh and submitted the
same at Police Station, which was proved as Ex. Ka(1). Thus,
looking to the time taken, for providing the medical aid and the
distance of the police station, it is apparent that the F.I.R. was
lodged promptly within a period of 1 hour 10 minutes of the
occurrence. The prompt lodging of the F.I.R. guarantees the
truthfulness of the prosecution version, as chances of consultation,
concoction and embellishments are very remote or less.
(23) The F.I.R. was lodged naming the appellant, as the accused, who
has committed the crime. The report was lodged by P.W.1 Ram
Lautan, who is uncle of P.W.2. He has admitted in his evidence
that he was not an eye witness. He was sleeping at home on
22.04.2015 at about 11:00 p.m. in the night. His niece Rekha,
alongwith her children, was sleeping in the thatch shed outside the
house. A marriage procession had come in the village that night,
during which the appellant Jag Prasad @ Jaggu was vandalizing a
motorcycle and when the members of the marriage procession
chased the accused, he ran towards the house of Suraju and picked
up Shagun, a boy who was aged about three and a half years and a
girl aged about one year, who were sleeping on a cot and threw
them into a well. Upon hearing the cries of the children, he and
the neighboring villagers brought the children out of the well and
took them to the Kumarganj Hospital, where the doctor declared
Shagun as dead but the girl survived. Thus, P.W.1 has not stated in
his evidence either he had seen the accused throwing the children
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in the well or taking away them. Thus, P.W.1 is not an eye
witness, which has been admitted also by him in his cross
examination. However, he has further deposed that the night of the
incident was dark but the light was alight and as per his
knowledge, the accused was neither mad nor intoxicated. He
further deposed that after the incident, the mother of the child
Rekha Devi was disturbed. Considering the evidence of P.W.1,
learned trial court has recorded that P.W.1 is not an eye witness to
the occurrence and has also not supported the prosecution case.
(24) The P.W.1 is not an eye witness but he has proved that upon
hearing the noise he had reached on the spot and he alongwith
neighbour villagers had brought the children out of well. Thus he
has proved the place of occurrence and nothing could be extracted
from him in cross examination, from which it may be inferred that
he has deviated from his earlier statement.
(25) P.W.2 is an eye witness to the incident. She has deposed in his
examination-in-chief that the incident had taken place one and a
half year ago. It was 11:00 p.m. in the night. Ram Lautan is her
uncle. At the time of the alleged incident, she was staying at her
maternal home at Pithola, where she was sleeping alongwith her
two children namely Shagun aged about three and a half year and
Payal aged about one year under the thatched shed. At the time of
incident, Jag Prasad Yadav @ Jaggu came at her house and
pressed her neck. She asked him to go away. In the meantime, he
kicked her on the leg, as a result of which she fell down.
Thereafter Jag Prasad picked up her son Shagun and daughter
Payal and threw them in the well. Upon raising alarm, her uncle
and several villagers arrived at the spot and saw the accused Jag
Prasad running away. Then the neighbors brought the children out
of the well. Her son's condition was serious. He was taken to the
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Kumarganj Hospital, where the doctor declared him dead. She
was examined at the Government Hospital, Milkhipur and
thereafter at District Hosptial, Faizabad. She had suffered injuries
in her right leg and her daughter suffered injury in her eye but she
was saved. The report was lodged by her uncle.
(26) P.W.2 further categorically stated that she had seen the accused
and identified him. Her statement was recorded by the Circle
Officer. She further deposed that she belongs to a scheduled caste
community. Thus, she has proved the incident as an eye witness
and it is apparent from her evidence that the accused-appellant
had come at about 11:00 p.m. in the night and pressed her neck
and upon being asked to go away kicked her also on leg, on
account of which she fell down. Thereafter he took her two
children and threw them in a nearby well. Upon raising alarm, the
villagers had come and brought children out of well. She was also
medically examined. She has also deposed that the accused-
appellant Jag Prasad is a resident of her village. She has no quarrel
or enmity with the family of the accused. She has also deposed
that her village is Sarai Dhanethi. She also deposed that when the
accused was caught after 5-6 days of the incident, she was called
at the police station. She further deposed that on the date of
incident, her uncle Pinku, Ram Lautan and some other villagers
had assisted in bringing out the children from the well. After about
ten minutes of the bringing out of the children from the well, they
were taken to the hospital.
(27) P.W.2 has further deposed that she was wearing a mangalsutra at
the time of alleged incident, which is still kept at her home and
none of her jewellery was snatched. She further deposed that she
knows the accused Jag Prasad since childhood, as his sister was
studying with her, therefore, she knows him well. The house of
the accused is situated at a distance of about 40-45 houses away
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from her house. The accused had come near her with bad
intention. However, she had not spoked to the accused prior to the
date of incident nor she had made any wrong talk to him prior
thereto. She denied the suggestion that she had not seen the
accused on the night of incident and had implicated him falsely in
consultation with Arvind Singh. Nothing could be extracted from
her in the cross examination, which may create any doubt
regarding the occurrence or involvement of the appellant.
(28) The aforesaid evidence of P.W.2 shows that she has clarified that
she had no enmity or quarrel with the family of the accused,
therefore, question of any false implication does not arise. P.W.1;
the complainant and P.W.3 Suraju, who had also reached on spot
have also joined the P.W.2 on the issue of enmity between the two
families and have categorically deposed that there was no enmity.
The P.W.1 has even said that the accused and his family had no
enmity with his family and still there is no enmity and the
relations between both the families are normal and they go to meet
and greet each other . It shows that family members of the
appellant must also be knowing that he is guilty, otherwise after
his implication, they would not have kept normal relation.
(29) P.W.2 has also deposed in cross examination that the deceased had
come with bad intention. It appears that the appellant had come
near P.W.2 with bad intention and on being confronted pressed her
neck and when she asked him to go away, he picked up the
children lying near her on the cot and threw them in the nearby
well. Thus the cross examination of P.W.2 throws some light on
the motive. However, Investigating Officer (P.W.6), has deposed
in cross examination that he does not know the reason of incident
and could not get any motive for occurrence. But the motive
appears to be was of bad work with P.W.2 and not the murder of
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her child. However, even if the motive is not proved, the
prosecution story cannot be said to have even a dent on account of
absence of motive because it is a case of eye witness account and
in the case of eye witness account, the motive does not play any
significant role.
(30) In view of above, the evidence of P.W.2 is consistent and
convincing and nothing could be extracted in the cross
examination, which may create any doubt about the testimony of
P.W.2. P.W.2 is an eye witness and there is no contradiction in her
evidence. The learned trial court has also recorded a finding that
there is no contradiction in the evidence of P.W.2 and she had seen
the accused pressing her neck, kicking her and throwing the
children in the well.
(31) P.W.2 has deposed that the accused-appellant had kicked her in
her leg, on account of which she fell down. The medical report of
P.W.2 indicates three injuries,out of which two are in the right leg
between knee and near ankle joint. In case a person would kick in
the leg, the injury would come in the lower part of the leg. Thus,
the medical report of P.W.2, who is an injured witness, has
corroborated her evidence. P.W.9 Dr. Arun Kumar, who had
examined the injured P.W.2 has also stated that the injuries were
of within 24 hours, which could have been caused by a bangle or
kudal. In the cross examination, he deposed that the injuries could
have been of within 24 hours or even within 12 hours also. The
post mortem report of the deceased indicates that 50 ml black
coloured material was found in his stomach, which could have
entered on account of falling and drowning into the well. Since
cause of death could not be ascertained, therefore, the viscera was
preserved and the FSL report shows that no poison was found in
the body. Thus the post mortem report (Ex. Ka. 4), also supports
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the prosecution case because the death could have been on
account of drowning in the well. Therefore, the presence of about
50 ml liquid in the stomach further supports the prosecution
version. The post mortem report has been proved by P.W.5 Dr.
Gulrez Ahmad, who has also opined that since 50 ml liquid was
found in the stomach of the deceased and the poison was not
found, therefore, viscera was preserved. No poison was found in
the viscera report, therefore, death due to drowning may not be
ruled out in the facts and circumstances of the case. The post
mortem examination of the deceased was conducted at about 3:05
p.m. on 23.04.2015 and as per the post mortem report, the
approximate time since death was about one day. No cross
examination of P.W.5 was conducted, except with regard to the
cause of death mentioned in the post mortem report. Thus, his
evidence in regard to the time of death is intact.
(32) In view of above, the prosecution case stands proved not only by
the testimony of the eye witness but the same is also corroborated
by the medical evidence.
(33) P.W. 3 supported the statements of P.W.1 and P.W.2, in saying that
on the date of incident at about 11:00 p.m.in the night, on a alarm
raised, he had gone to the house of Ram Lautan, where two
children were thrown into the well by Jag Prasad. They had
brought the children out of the well, in which the child Shagun,
aged about three and a half years had died. The inquest was
prepared by the investigating Officer. He is a witness to the
inquest report and has also proved his thumb impression in
inquest.(Ex. Ka 2). He has also deposed that the dead body was
sealed and sent for post mortem. Thus the P.W.3 has also proved
the place of incident and that the children were thrown in the well,
from where they were taken out, upon which the child Shagun
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was found dead, as well as the inquest report, in which opinion of
witnesses is recorded, according to which the child Shagun died as
he was thrown in well by Jaggu @ Jag Prasad.
(34) P.W. 3 has also deposed that at the time of incident, when the
children were thrown in the well, the name of Jag Prasad had
come. The accused had ran away from the village leaving the
children in the well and he was caught by the police after 4-5
days. P.W.2 the mother of the deceased was injured who had also
deposed that the accused-appellant was caught after 4-5 days and
upon call from the police, she had gone to the police station but
she had not met the accused either at the police station or
anywhere else. Thus, the conduct of the appellant also shows that
though he resides after 40-45 house from the place of occurrence
but he had absconded in the very night of the incident and was
caught only after 4-5 days.
(35) P.W.4, writer of the F.I.R. has proved it. P.W.5 is the Investigating
Officer, who had recorded statements and prepared the site plan
on the pointing out of the complainant and collected the material
and filed the charge sheet and proved them. P.W.7 has also proved
the inquest of the deceased Shagun. P.W.8-Constable Indrajeet
Sharma helped in the preparation of the inquest and took the dead
body for post mortem and proved it. Nothing could be extracted
from the said official formal witnesses, which may create any
doubt about their testimony or even on the prosecution case. Thus,
this Court is of the view that the prosecution has proved it's case
beyond reasonable doubt. Learned trial court upon considering the
evidence and material on record has recorded a finding that on the
basis of evidence on record, the charge of Section 302, 307 and
323 IPC has been proved against the appellant with the following
findings:-
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"
इस प्रकार अभियोजन पक्ष की तरफ से कुल दो साक्षी तथ्य के
परीक्षित कराये गये हैं जिसमें से पी०डब्ल्यू ०२ रेखा चश्मदीद
साक्षी है। इन्होंने अपने साक्ष्य में इस तथ्य को साबित किया है
कि अभियुक्त जग प्रसाद उर्फ जग्गू रात में ११ बजे उसके घर
आया और वह अपने छप्पर में अपने दोनों बच्चों के साथ रात
११ बजे सो रही थी। अभियुक्त बुरी नीयत से उसके पास आया
,
और पी०डब्ल्यू०२ रेखा को लात से मारा उसका गला भी
दबाया। संभवतः प्रतिरोध होने के कारण उसने रेखा के दोनों
बच्चों को ले जाकर कुयें में फेक दिया जिससे उसके बेटे सगुन
की मृत्यु हो गयी और उसकी लड़की बच गयी। सगुन के
पोस्टमार्टम रिपोर्ट में उसके पेट में ५० ग्राम तरल पदार्थ पाया
गया है। न्यायालय के विचार से यह तभी हो सकता है जब
मृतक को डुबोया गया हो अथवा वह स्वयं डूबा हो। इस प्रकार
मौखि क साक्षी पी०डब्ल्यू०२ रेखा के साक्ष्य का समर्थन डाक्टरी
साक्ष्य से भी होता है। पत्रावली पर उपलब्ध साक्ष्य से अभियुक्त
के विरूद्ध धारा ३०२ , ३०७ व ३२३ भा०दं०सं० का अपराध
सन्देह से परे साबित होता है। चूँकि अभियुक्त द्वारा किये गये
कार्य से पी०डब्ल्यू०२ रेखा के लड़के सगुन की मृत्यु हुई तो यह
माना जायेगा कि अभियुक्त यह जानता था कि तीन वर्ष के
बच्चे को यदि कुएं में फेंक दे तो निश्चित रूप से उसकी मृत्यु हो
जायेगी। इसके अलावा पी०डब्ल्यू०२ की लड़की को भी कुएं में
अभियुक्त द्वारा फेका गया है लेकिन कुएं से निकालकर
अस्पताल ले जाने पर व दवा इलाज होने पर वह बच गयी
किन्तु उसकी आंख खराब हो गयी लेकिन अभियुक्त का आशय
पी०डब्ल्यू०२ की लड़की को जान से मारने का था। इसलिए
उसने उसको कुएं में फेक दिया। इसके अलावा पी०डब्ल्यू०४ के
साक्ष्य से यह साबित है कि पीड़िता के शरीर पर भी चोटें आयी
है। इस प्रकार पत्रावली पर उपलब्ध साक्ष्य से अभियुक्त के
विरूद्ध धारा ३०२ , ३०७ य ३२३ भा०दं०सं० का अपराध
साबित होता है।
(36) The learned trial court, further considering the evidence and
material on record and the provisions made under Section 3(2)(v)
of SC/ST Act, found that charge under Section 3(2)(v) of SC/ST
Act is not proved as the crime was not committed on the ground
that the victims are of SC/ST community and recorded the
following findings:-
" ( ) (v)
अभियुक्त के विरूद्ध धारा ३ २ अनुसूचित जाति एवं
( )
अनुसूचित जनजाति अत्याचार निवारण अधिनियम का
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( ) (v)
आरोप भी विरचित किया गया है। धारा ३ २ अनुसूचित
( )
जाति एवं अनुसूचित जनजाति अत्याचार निवारण अधिनियम
-
के लागू होने के संबंध में यू० पी० सीआर० आर० २००० पेज
२६८ मासूमशा हसनशा मुसलमान बनाम स्टेट ऑफ महाराष्ट्र
का उद्धरण महत्वपूर्ण है जिसमें माननीय उच्चतम न्यायालय
द्वारा यह कहा गया है कि धारा ३ ( २ ) (v) अनुसूचित जाति एवं
( )
अनुसूचित जनजाति अत्याचार निवारण अधिनियम के लागू
होने के लिए जरूरी शर्त है कि पीडित व्यक्ति अनुसूचित जाति
या अनुसूचित जनजाति का हो और पीड़ित के साथ अपराध
इस आधार पर किया गया हो कि वह अनुसूचित जाति या
जनजाति का है। यदि यह दोनों शर्तें पूरी नहीं हैं तो धारा ३ ( २ )
(v) (
अनुसूचित जाति एवं अनुसूचित जनजाति अत्याचार
)
निवारण अधिनियम का आरोप साबित नहीं होगा। न्यायालय
के विचार से अभियुक्त द्वारा उपरोक्त अपराध इसलिए नहीं
किया गया है कि बच्चे अनुसूचित जाति के थे बल्कि
आपराधिक मानसिकता से उपरोक्त अपराध कारित किया गया
( ) (v)
है। ऐसी स्थि ति में अभियुक्त के विरूद्ध धारा ३ २
( )
अनुसूचित जाति एवं अनुसूचित जनजाति अत्याचार निवारण
अधिनियम का अपराध साबित नहीं होता है।
(37) The judgment relied by learned Amicus Curiae for the appellant
are not applicable on the facts and circumstances of the case and
of any help to him, which in short, are being referred here-in-after.
(38) In the case of Amar Nath versus the State of Uttar
Pradesh(supra) , the Hon'ble Supreme Court, has held that when
there are multiple inconsistencies in the evidence on the basis of
which conviction was ordered and possibility of conviction
resulting in grave miscarriage of justice, interference with a
concurrent verdict is not only possible but it would be well
warranted. It has further been held that when the testimonies of
the eye-witnesses suffer from fatal flaws, to sustain conviction on
the basis of such unreliable evidence, would surely amount to
miscarriage of justice.
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(39) In the case of Alauddin versus State of Assam(supra) , the
Hon'ble Supreme Court, has dealt with the status of the statement
under Section 161 Cr.P.C. and further observed that when the two
statements cannot stand together, they become contradictory
statements. When a witness makes a statement in his evidence
before the Court which is inconsistent with what he has stated in
his statement recorded by the Police, there is a contradiction. If a
former statement of the witness is inconsistent with any part of his
evidence given before the Court, it can be used to impeach the credit of
the witness in accordance with clause (3) of Section 155 of the
Evidence Act .
(40) In the case of Anand Ramachandra Chougule versus Sidarai
Laxman Chougala (supra), has held that The burden lies on the
prosecution to prove the allegations beyond all reasonable
doubt. In contradiction to the same, the accused has only to create a
doubt about the prosecution case and the probability of its
defence. An accused is not required to establish or prove his
The
defence beyond all reasonable doubt, unlike the prosecution.
fact that a defence may not have been taken by an accused under
Section 313 Cr.P.C. again cannot absolve the prosecution from proving
its case beyond all reasonable doubt. The relevant paragraphs 9 and
10 are extracted hereinbelow:-
“9. The burden lies on the prosecution to prove the
allegations beyond all reasonable doubt. In contradistinction
to the same, the accused has only to create a doubt about the
prosecution case and the probability of its defence. An
accused is not required to establish or prove his defence
beyond all reasonable doubt, unlike the prosecution. If the
accused takes a defence, which is not improbable and
appears likely, there is material in support of such defence,
the accused is not required to prove anything further. The
benefit of doubt must follow unless the prosecution is able to
prove its case beyond all reasonable doubt.
10. The fact that a defence may not have been taken by an
accused under Section 313 CrPC again cannot absolve the
prosecution from proving its case beyond all reasonable
doubt. If there are materials which the prosecution is unable
to answer, the weakness in the defence taken cannot become
the strength of the prosecution to claim that in the
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circumstances it was not required to prove anything. In Sunil
Kundu v. State of Jharkhand [Sunil Kundu v. State of
Jharkhand, (2013) 4 SCC 422 : (2013) 2 SCC (Cri) 427] , this
Court observed: (SCC pp. 433-34, para 28)
“28. … When the prosecution is not able to prove its case
beyond reasonable doubt it cannot take advantage of the fact
that the accused have not been able to probabilise their
defence. It is well settled that the prosecution must stand or
fall on its own feet. It cannot draw support from the weakness
of the case of the accused, if it has not proved its case
beyond reasonable doubt.”
(41) In the case of Balaji Gunthu Dhule versus State of
Maharashtra(supra), the Hon'ble Supreme Court, has held that
since the entire evidence of the eye-witnesses has not been accepted by
the High Court, it could not have merely relied upon the postmortem
report to convict the appellant for an offence under Section 302 of the
I.P.C. Further, in our view, the postmortem report should be in
corroboration with the evidence of eye-witnesses and cannot be an
evidence sufficient to reach the conclusion for convicting the appellant .
(42) In the case of Abdul Shakur versus State of Rajasthan(supra),
the Hon'ble Supreme Court has held that it is for the prosecution
to connect the accused to the murder of the deceased by producing
credible and legally admissible evidence.
(43) In the case of Krishnegowda versus State of Karnataka by
Arkalgud Police(supra) , The Hon'ble Supreme Court has held
that When there is inconsistency between medical evidence and
ocular evidence, the benefit of doubt should be given to the
accused.
(44) In the case of Baso Prasad and others versus State of
Bihar(supra) , the Hon'ble Supreme Court has held that the exact
time of death cannot be established scientifically and precisely,
only because of presence of rigour mortis or in the absence of it.
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(45) In the case of Mohar Singh and others versus State of
Punjab(supra), the Hon'ble Surpeme Court has held that in the
facts and circumstances of the case, upon consideration of which
the Hon'ble Court has recorded that in view of this glaring
inconsistency between the ocular and medical evidence, it will be
extremely unsafe and hazardous to maintain the conviction of the
appellants on such evidence. The judgment has been passed on the
facts and circumstances of case.
(46) The settled position of law discussed in the aforesaid case laws,
relied by learned Amicus Curiae for the appellant, cannot be
disputed and it is for the prosecution to prove it's case beyond
reasonable doubt, irrespective of the contradictions or
inconsistencies in the evidence and weakness of the defence and
it cannot absolve the prosecution of it's liability. As discussed
above, the aforesaid case laws are not of any assistance to the case
of the appellant. This Court is in agreement with the acquittal of
appellant under Section 3(2)(v) of SC/ST Act and none of the
parties have informed that it has been challenged either by the
prosecution or complainant. Even otherwise, since there is no
enmity with the appellant and his family with the P.W.2 and her
family and their relations are not strange even thereafter and
cordial, it could not have been challenged by the complainant.
This also leads us to consider as to whether the murder of the
children was the motive of accused/appellant and he attempted to
murder with pre-meditated mind, on account of which one of the
child died.
(47) In view of aforesaid discussion, the motive, which could be
inferred from evidence of P.W.2 was not to commit murder of
child, by the accused /appellant but he had come with bad
intention to her. Thus, it may not be said that there was any
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intention to kill any of the child, Since the motive of murder of
child could not be proved, therefore, it may be a case in which the
intention to kill may not be there, even if the accused/appellant
was knowing that the child may die on account of throwing in
well and a child is also alive. If the motive and intention to kill is
not proved then it is required to be considered as to whether the
offence would fall under the category of murder or not, if not, then
it may be a case of culpable homicide not amounting to murder.
(48) In view of above, it would be apt, to consider the issue emerged in
the case, to refer the relevant provisions made in I.P.C., which for
convenience may be extracted. Sections 299, 300, 302 and 304
I.P.C. relevant for the purpose are extracted below:-
" 299 . Culpable homicide .--Whoever causes death by doing an act
with the intention of causing death, or with the intention of causing
such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.
300 . Murder. --Except in the cases hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodily injury
as the offender knows to be likely to cause the death of the person
to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death,
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
Exception 1. --When culpable homicide is not murder.--Culpable
homicide is not murder if the offender, whilst deprived of the power
of self-control by grave and sudden provocation, causes the death
of the person who gave the provocation or causes the death of any
other person by mistake or accident.
The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked
by the offender as an excuse for killing or doing harm to any
person.
Secondly.--That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise
of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in the
lawful exercise of the right of private defence.
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Explanation.--Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2 .--Culpable homicide is not murder if the offender in
the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
Exception 3 .--Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him by
law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards the person
whose death is caused.
Exception 4. --Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon
a sudden quarrel and without the offender's having taken undue
advantage or acted in a cruel or unusual manner.
Exception 5 .--Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.
302. Punishment for murder.-
Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
304. Punishment for culpable homicide not amounting to
murder .--Whoever commits culpable homicide not amounting to
murder, shall be punished with 1 [imprisonment for life], or
imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the
death is caused is done with the intention of causing death, or of
causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done
with the knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as is likely
to cause death.
(49) In view of above to bring a case under Section 300 firstly it must
be established that a bodily injury is present; secondly the nature
of the injury must be proved and thirdly it must be proved that
there was an intention to inflict that particular bodily injury and it
was not accidental or unintentional or that some other kind of
injury was intended and fourthly it must be proved that injury
inflicted on the deceased is sufficient to cause death in the
ordinary course of nature. If all these eliments are established by
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the prosecution the offence would be murder under Section 300
I.P.C.
(50) The Hon'ble Supreme Court considered the issue, in the case of
Virsa Singh Vs. The State of Punjab; 1958 SCC Online SC 37,
(AIR 1958 SC 465), and held that after determination of objective
facts in regard to the nature of injury and the part on which it has
been inflicted etc, when it comes to the question of intention, that
is subjective to the offender, it must be proved that he had an
intention to cause the bodily injury that is found to be present and
laid down the principles as to how it is to be considered. The
relevant paragraphs 13 to relevant portion of paragraph 22 are
extracted below:-
13 . In considering whether the intention was to inflict the
injury found to have been inflicted, the enquiry necessarly
proceeds on broad lines as, for example, whether there was
an intention to strike at a vital or a dangerous spot, and
whether with sufficient force to cause the kind of injury found
to have been inflicted. It is, of course, not necessary to
enquire into every last detail as, for instance, whether the
prisoner intended to have the bowels fall out, or whether he
intended to penetrate the liver or the kidneys or the heart.
Otherwise, a man who has no knowledge of anatomy could
never be convicted, for, if he does not know that there is a
heart or a kidney or bowels, be cannot be said to have
intended to injure them. Of course, that is not the kind of
enquiry. It is broadbased and simple and based on common
sense: the kind of enquiry that " twelve good men and true
could readily appreciate and understand.
14 . To put it shortly, the prosecution must prove the following
facts before it can bring a case under section 300, 3rdly "
15. First, it must establish, quite objectively, that a bodily
injury is present ;
16. Secondly, the nature of the injury must be proved; These
are purely objective investigations.
17. Thirdly, it must be proved that there was an intention to
inflict that particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kind of injury
was intended.
18. Once these three elements are proved to be present, the
enquiry proceeds further and,
19 . Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above is
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and
has nothing to do with the intention of the offender.
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20. Once these four elements are established by the
prosecution (and, of course, the burden is on the prosecution
throughout) the offence is murder under s. 300, 3rdly. It does
not matter that there was no intention to cause death. It does
not matter that there was Do intention even to cause an
injury of a kind that is sufficient to cause death in the
ordinary course of nature (not that there is any real
distinction between the two). It does not even matter that
there is no knowledge that an act of that kind will be likely to
cause death. Once the intention to cause the bodily injury
actually found to be present is proved, the rest of the enquiry
is purely objective and the only question is whether, as a
matter of purely objective inference, the injury is sufficient in
the ordinary course of nature to cause death. No one has a
licence to run around inflicting injuries that are sufficient to
cause death in the ordinary course of nature and claim that
they are not guilty of murder. If they inflict injuries of that
kind, they must face the consequences; and they can only
escape if it can be shown, or reasonably deduced that the
injury was accidental or otherwise unintentional.
21 . We were referred to a decision of Lord Goddard in R v.
Steane (1) where the learned Chief Justice says that where
a particular intent must be laid and charged, that particular
intent must be proved. Of course it must, and of course it
must be proved by the prosecution. The only question here
is, what is the extent and nature of the intent that s. 300
thirdly requires, and how is it to be proved ?
22. The learned counsel for the appellant next relied on a
passage where the learned Chief Justice says that:
"if, on the totality of the evidence, there is room for more
than one view as to the intent of the prisoner, the jury should
be directed that it is for the prosecution to prove the intent to
the jury's satisfaction, and if, on a review of the whole
evidence, they either think that the intent did not exist or they
are left in doubt as to the intent, the prisoner is entitled to be
acquitted."
We agree that that is also the law in India. But so is this. We
quote a few sentences earlier from the same learned
judgment:
"No doubt, if the prosecution prove an act the natural
consequences of which would be a certain result and no
evidence or explanation is given, then a jury may, on a
proper direction, find that the prisoner is guilty of doing the
act with the intent alleged."
(51) The Hon'ble Supreme Court, in the case of Pulicherla Nagarjun
Vs. State of Andhra Pradesh; (2006) 11 SCC 444 , discussed as
to what is to be considered for deciding a case as to whether it
falls under Section 302 or 304 Part-I or 304 Part-II and also the
intention to cause death can be gathered from a combination of
circumstances. The relevant paragraph-18 is extracted below:-
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" 18. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters # plucking of a fruit, straying of a
cattle, quarrel of children, utterance of a rude word or even an
objectionable glance, may lead to altercations and group clashes
culminating in deaths. Usual motives like revenge, greed, jealousy or
suspicion may be totally absent in such cases. There may be no
intention. There may be no pre-meditation. In fact, there may not
even be criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there was no intention
to cause death. It is for the courts to ensure that the cases of murder
punishable under section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of culpable homicide
not amounting to murder, are treated as murder punishable under
section 302.
The intention to cause death can be gathered generally from a
combination of a few or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body; (iv) the
amount of force employed in causing injury; (v) whether the act was
in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any
pre- meditation; (vii) whether there was any prior enmity or whether
the deceased was a stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused dealt a single
blow or several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special circumstances
with reference to individual cases which may throw light on the
question of intention. Be that as it may."
(52) The Hon'ble Supreme Court, in the case of Suresh Chandra
Bahri Vs. State of Bihar and Others; 1995 Supp(1) SCC 80, has
held that sometimes motive plays an important role and becomes a
compelling force to commit a crime and therefore motive behind
the crime is a relevant factor for which evidence may be adduced.
However it further noticed that in a case where there is clear proof
of motive for the commission of the crime it affords added support
to the finding of the court that the accused was guilty of the
offence charged with. But the absence of proof of motive does not
render the evidence bearing on the guilt of the accused
nonetheless untrustworthy or unreliable because most often it is
only the perpetrator of the crime alone who knows as to what
circumstances prompted him to a certain course of action leading
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to the commission of the crime. Therefore motive may only be a
relevant factor to form an opinion as to whether in a given
circumstances there was an intention to kill on account of which
the case may fall under Section 302 I.P.C.
(53) The Hon’ble Supreme Court, in the case of Khuman Singh Vs
State of MadhyaPradesh; (2020) 18 SCC 763, has held that
‘Exception 4’ to Section 300 IPC can be invoked if death is
caused; (a) without premeditation; (b) in a sudden fight; (c)
without the offender having taken undue advantage or acted in a
cruel or unusual manner and (d) the fight must have been with the
person killed.
(54) In view of the above statutory provisions and the principles laid
down by Hon’ble Supreme Court, when we test the facts of the
instant case on the aforesaid principles, we find that it is apparent
from the evidence and material on record that the appellant had
thrown the children of P.W.2 in the well in heat of passion on
account of frustration of his bad intention for the P.W.2, which
could not be fulfilled, as she had asked him to go away, therefore,
firstly he kicked her in the leg and in the same continuation, he
picked up her children sleeping with her on the cot and thrown
them in the well, on account of which one of the child died and
the other suffered injury in the eyes. In these circumstances,
though it may be said that he had thrown the children in the Well
with the knowledge that it is likely to cause death but without
intention to kill, therefore, it cannot be said to be a per-medidated
murder. This Court is of the view that, looking to the offence and
manner of committing offence, it would fall under Section 304
Part II I.P.C. Thus, we are of the view that while upholding
conviction under Section 307 I.P.C., on account of throwing of
one year child in well, who suffered injury in eyes and under
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Section 323 IPC on account of injuries sustained by P.W.2,
conviction of offence under Section 302 IPC is liable to be
modified and converted under Section 304 Part II IPC. Now we
will consider as to what punishment is to be awarded.
(55) Learned trial court has awarded with imprisonment for life and
fine of Rs.10,000/- under Section 302 IPC and 7 years rigourous
imprisonment under Section 307 IPC with fine of Rs.5000/- and 6
months rigorous imprisonment and fine of Rs.500/- under Section
323 IPC. However, the maximum punishment has not been
awarded for any of the offence as the court has not found the
crime so heinous to award the maximum punishment. Thus, this
Court is of the view that the conviction and sentence under
Section 302 IPC is liable to be modified to Section 304 Part II
IPC, upholding the conviction and sentence under Section 307 and
Section 323 IPC.
(56) The appeal is partly allowed.
(57) We, therefore, uphold the conviction and sentence awarded to the
appellant by the trial Court under Sections 307 and 323 I.P.C.,
however, modify the conviction under Section 302 IPC to Section
304 Part II I.P.C. and award a sentence of 10 years rigorous
imprisonment with a fine of Rs.50,000/-. In case of default of
payment of fine, to undergo 1 year further rigorous imprisonment.
On completion of the said period, the appellant is entitled to be
released forthwith, if, he is not required in any other case.
(58) On deposit of the aforesaid fine against all the punishments, if
already deposited and if any amount has been deposited, deposit
of the remaining amount,the same shall be disbursed to the P.W.2,
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which shall be transferred in her account after calling account
details from her.
(59) The appellant is in jail since 25.04.2015. Thus, he must have
completed the punishment of 10 years. Therefore, he shall be
released forthwith on deposit of the fine/remaining amount of
fine. In case he has already completed the sentence and not
deposited the fine and completed the default period, he shall be
released forthwith, if he is not wanted or required to remain in jail
in any other case.
(60) Appellant-Jag Prasad Yadav @ Jaggu 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 within a period of two weeks.
(61) Pending application(s), if any, stands disposed of accordingly.
(62) Let a copy of this judgment and the trial Court’s record be
transmitted to the Court concerned forthwith and in any case
within two weeks from today, for information and compliance.
(Zafeer Ahmad,J.) (Rajnish Kumar,J.)
May 27, 2026
Akanksha Sri/-
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Digitally signed by :-
AKANKSHA SRIVASTAVA
High Court of Judicature at Allahabad,
Lucknow Bench