Allahabad High Court
Vinay Kumar Singh vs State Of U.P. on 14 July, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 29.05.2025 Judgment Delivered on 14.07.2025 Neutral Citation No. - 2025:AHC:111872-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 4855 of 2014 Appellant :- Vinay Kumar Singh Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kumar Chauhan,Rajiv Lochan Shukla,Sushil Kumar Dubey Counsel for Respondent :- Bed Kant Mishra and Case :- CRIMINAL APPEAL No. - 482 of 2015 Appellant :- Santosh Kesharwani Alias Lambu Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kumar Mishra,Ramesh Chandra Chaturvedi Counsel for Respondent :- Bed Kant Mishra Hon'ble Saumitra Dayal Singh, J.
Hon'ble Sandeep Jain, J.
(Per S.D. Singh, J.)
1. Heard Sri Arun Kumar Shukla, learned Amicus Curiae; Sri Rajesh Kumar Chauhan learned counsel for the appellant Vinay Kumar Singh and Shri L.D. Rajbhar and Sri Vikas Goswami, learned A.G.A. for the State and perused the record.
2. Present criminal appeals (two) arise from the judgment and order dated 13.11.2014 and 18.11.2014 passed by Shri Jai Mangal Sharma, the Additional Sessions Judge, Court no.5, Kanpur Nagar, in Sessions Trial No. 1019 of 2008 (State vs Vinay Kumar Singh, Amarnath Singh, Santosh Kesarwani alias Lambu, Pappu Gupta alias T.V., Shadab Ahmed alias Monu alias More, Kanhaiya and Vinod @ Pappu), arising out of Case Crime No. 57 of 2008, Police Station Rail Bazar, District Kanpur Nagar whereby the accused - Vinay Kumar Singh, Amarnath Singh, Santosh Kesarwani alias Lambu, Pappu Gupta alias T.V. have been convicted and sentenced to undergo ten years rigorous imprisonment and to pay fine Rs. 10,000/- for the offence under Section 376 I.P.C./-; sentenced to undergo rigorous life imprisonment and to pay fine Rs. 10,000/- for the offence under Section 302/34 I.P.C.; in default, to further undergo additional imprisonment of six months. Both sentences were ordered to run concurrently.
3. Against those seven persons tried by the learned court below, the accused persons Shadab Ahmed alias Monu alias More, Kanhaiya and Vinod @ Pappu were acquitted. Appeals were filed by all the convicted accused. At the same time, during pendency of the appeals, the accused Amarnath Singh and Pappu Gupta alias T.V. died in custody. Those appeal proceedings abated. Thus, only two appeals survive. One on behalf of the convicted accused Vinay Kumar Singh and the other filed by Santosh Kesharwani alias Lambu.
4. The prosecution story emerged on the Written Report submitted by 'S' (P.W.-1 at the trial) who is the mother of the deceased 'S-1'. That Written Report is Ex.Ka.-1 at the trial. On that Written Report, First Information Report was registered on 15.02.2008 at 09:15 P.M., in Case Crime No. 57 of 2008, Police Station Rail Bazar, District Kanpur Nagar. 'S' narrated, her husband was engaged in selling cooked food-stuff at Kanpur Central Railway Station and that she used to live with her children in a temporary tin-shed, near an under construction waiting room for Loco-Pilots. At the time of the occurrence, her husband was in jail. For that reason, she had travelled to Delhi to do 'pairvi' on his behalf. On returning from Delhi on 15.2.2008, by Gomti Express, she reached the above described tin-shed - her place of stay. There, she found the dead body of her daughter 'S-1' aged about eleven and a half year, lying on a rug. Her clothes were disheveled. There were injury marks on the head of the deceased as also on her hands. Also, blood was oozing from her nose and mouth. No other injury was described in that F.I.R. On inquiring about such occurrence from her minor son 'V' aged about 8 years, she was told, Vinay, the Contractor Amarnath Singh alongwith Lambu, Pappu and four labourers had assaulted the deceased and committed wrong act ('bura kaam') on her. 'S-1' died of the same. The time of the occurrence, she disclosed at 7.00 P.M. that day i.e. 15.2.2008. Then, the F.I.R. goes to narrate the description of the accused. In that, 'S' described Vinay was a Constable of the Railway Protection Force ('RPF' in short). Amarnath Singh was a Contractor. Lambu and Pappu were manual labourers. She described four other unnamed assailants as manual labourers living in nearby sheds. She further alleged that 'S-1' had been raped. As to the past relations/transactions between the parties, the F.I.R. further narrated that about 5-6 months prior to this occurrence, son of Amarnath Singh and his tenant had eloped with 'S-1'. Under police pressure, 'S-1' was recovered from Amarnath Singh. The F.I.R. giving rise to this appeal is Ex.Ka-2/2A at the trial.
5. On such F.I.R. being registered, three Recovery Memo were prepared, on 15.2.2008. First, pieces of blood-stained rug and blanket were recovered by S.O. Vinod Kumar Trivedi (P.W.-5 at the trial) from the tin-shed where the dead body of 'S-1' was found. That Recovery Memo is Ex.Ka-7 at the trial. Next, on 15.2.2008, S.O. Vinod Kumar Trivedi also recovered a piece of blood-stained stone found lying beside the dead body of 'S-1' from the tin-shed where that dead body was recovered. The said Recovery Memo is Ex.Ka-8 at the trial. Third, a sample of blood-stained and plain earth was recovered from the tin-shed from where the dead body of the deceased was recovered. That Recovery Memo is Ex.Ka.-9 at the trial.
6. On 16.2.2008, between 10.30 A.M. to 12.00 noon, Inquest Report was prepared. It is Ex.Ka.-21 at the trial. In that, following observation were recorded:
"चोटः- बांई आँख के नीचे चोट खराश, बांया हाथ कुहनी से टूटा हुआ, बांये हाथ के पंजे पर जावजा चोटें, दाहिने हाथ के पंजे व कलाई पर चोट खराश। सिर में बांई तरफ पीछे चोट खून आलूदा, नाक से खून निकल रहा है।"
7. On 16.2.2008 itself, dead body of 'S-1' was subjected to autopsy examination by Dr. Pradeep Kumar Singh (P.W.-4 at the trial) at about 2:15 P.M. In that report, the said doctor noticed the following ante-mortem injuries only:
"1. Lacerated wound 2cm x 1cm x bone deep present over right side forehead just above eye-brow.
2. Multiple abrasions over an area of 4cm x 3cm over left side cheek.
3. Contused wound 7 cm x 5 cm over right side skull over temporal region just above ear pinna."
8. P.W.-4 opined that death had been caused by Coma due to ante-mortem head injury. He also prepared a slide from the vaginal cavity. He estimated, death was caused about one and half day earlier. The Autopsy Report is Ex.Ka.-6 at the trial.
9. According to the police, upon the arrest of the accused, four separate Recovery Memos were prepared. Thus, the Recovery Memo of the underwear and blood-stained shirt of Amarnath Singh is Ex.Ka.-11 at the trial. Similarly, the Recovery Memo of the shirt and blood-stained underwear of Vinay Kumar Singh is Ex.Ka.-12 at the trial. The Recovery Memo of the underwear and blood-stained pant of the appellant Santosh Kesharwani alias Lambu is Ex.Ka.-13 at the trial. Last, the Recovery Memo of blood stained underwear and pant of Pappu alias T.V. is Ex. Ka-14 at the trial. All four Recovery Memo were prepared by S.O. Vinod Kumar Trivedi (P.W.-5). All are dated 16.02.2008. On 22.03.2008, the S.O. Vinod Kumar Trivedi also recovered an open/unsealed condom at the pointing out by the acquitted accused person Shadab Ahmad, from a verandah. That Recovery Memo is Ex. Ka-15 at the trial.
10. On 01.03.2008, S.O. Vinod Kumar Trivedi (P.W.-5) recovered a 315 bore country made firearm and two live cartridges allegedly at the pointing out by the accused Vinay Kumar Singh, from under a tree near the place of occurrence. The said Recovery Memo is Ex. Ka-17 at the trial. Arising from the recovery of the said firearm, another F.I.R. was registered against the appellant Vinay Kumar Singh, on 01.03.2008 under Section 25 Arms Act. That F.I.R. is Ex. Ka-4 at the trial.
11. On 17.04.2008, the Forensic Science Laboratory prepared its report indicating presence of human blood on the shorts, frock, skirt, thread worn by 'S-1' on her hand ('Kalava'), recovered from her dead body; samples of earth, rug, blanket and the stone recovered from the place of occurrence; underwear, shirt and pant (except one) recovered from the accused persons. Also, semen marks were detected on the shorts, frock recovered from the dead body of the deceased as also on the underwear (except one) recovered from the accused persons as also from the condom recovered at the pointing out by the acquitted accused Shadab Ahmad.
12. Also, it appears during investigation, statement of 'V' was recorded under Section 164 Cr.P.C. on 28.04.2008. He being aged about 08 years narrated, he had five siblings. His father used to prepare 'pooris'. On the date of the occurrence, his father was in jail while his mother had gone alongwith his elder brother to secure the release of his father. During night hours Lambu, Vinay Kumar Singh, Amarnath, Pappu, Shadab Ahmad and four to five other (unnamed labourers) came to his house. Though he could not name the four to five unknown persons, he claimed that he recognised them by their faces. All assailants asked 'V' and 'S-1' to open the door. They refused. At that, the assailants broke open the door and entered the house; they caught hold of 'S-1' and tied her hands and gagged her. They tore her clothes and undressed her. The electric light bulb in the room was on and he saw the occurrence from hiding. Because he shouted, Lambu slapped him thrice and told him to keep quiet and go to sleep. Thereafter, all the accused persons committed rape on the deceased in her state of undress. The deceased had also cried for help. In that, 'V' further narrated that the appellant Vinay Kumar Singh was wielding a gun. He further stated, all the accused persons brutally assaulted the deceased. Blood started oozing from her mouth, ear and private part. He also claimed that the deceased was hit hard on the back of her head. It had also led to bleeding. Thus, 'S-1' died. Thereafter, on the command of Vinay Kumar Singh, all the assailants left. He described the occurrence to his mother after she arrived. By that time, it was morning. He told his mother that Lambu, Vinay, Amarnath and Pappu had committed bad act ('bura kaam') on the deceased, in the night and had assaulted her on her ear, face and other places. He further stated that the deceased was assaulted with a knife and hammer. That statement of 'V' is Ex.Ka-2 at the trial. Two other statements were recorded under Section 164 Cr.P.C. - one of a person described as Mushtaq and the other of Mohd. Afaq. However, it is a fact that those witnesses were not examined at the trial.
13. In such circumstances, investigation was completed and charge-sheet submitted by the Investigation Officer, Vinod Kumar Trivedi. Upon the case being committed for trial by the Court of Sessions, following charges were framed against the appellants:
"आरोप मैं, बी०एम० त्रिपाठी, अपर सत्र न्यायाधीश/त्वरित न्यायालय संख्या-तीन, कानपुर-नगर आप अभियुक्तगण (1) विनय कुमार सिंह (2) अमरनाथ सिंह (3) सन्तोष केसरवानी उर्फ लम्बू (4) पप्पू गुप्ता उर्फ टी०वी० (5) सादाब अहमद उर्फ मोनू उर्फ मोरे (6) कन्हैया (7) विनोद उर्फ पप्पू पर निम्न आरोप आरोपित करता हूँ।
(1). यह कि दिनांक 15-2-2008 को समय लगभग सात बजे शाम रेलवे के ड्राइवरों के निर्माणाधीन आरामगृह के पास बरामदे में टीनशेड अन्तर्गत क्षेत्राधिकार थाना-रेलबाजार, कानपुर-नगर पर आप अभियुक्तगण द्वारा विधि विरुद्ध जमाव के सदस्य रहते हुए सामान्य उद्देश्य को अग्रसर करने में बल या हिंसा का प्रयोग कर वादिनी की पुत्री 'S-1' के साथ मारपीट कारित किया। इस प्रकार आपने भा०दं०सं० की धारा-147 के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।
(2). यह कि उपरोक्त दिनांक, स मय व स्थान पर आप अभियुक्तगण द्वारा विधि विरुद्ध जमाव कर घातक आयुधों से सुसज्जित होकर बलवा कारित किया। इस प्रकार आपने भा०दं०सं० की धारा-148 के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।
(3). यह कि उपरोक्त दिनांक, समय व स्थान पर आप अभियुक्तगण ने वादिनी की पुत्री पीड़िता/मृतका के साथ उसकी इच्छा व सहमति के विरुद्ध बलात्संग किया। इस प्रकार आपने भा०दं०सं० की धारा-376 के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।
(4). यह कि उपरोक्त दिनांक, समय स्थान पर आप अभियुक्तगण द्वारा विधि विरुद्ध जमाव के सामान्य उद्देश्य के अग्रसरण में वादिनी की पुत्री 'S-1' के साथ मारपीट कर उसकी साशय हत्या कारित की। इस प्रकार आपने भा०दं०सं० की धारा-302 सपठित धारा-149 के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।
(5). यह कि उपरोक्त दिनांक, समय व स्थान पर आप अभियुक्तगण द्वारा विधि विरुद्ध तरीके से आपराधिक षडयन्त्र के तहत वादिनी की पुत्री मृतका के साथ बलात्संग किया। इस प्रकार आपने भा०दं०सं० की धारा-120बी. के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।"
14. Following additional charge was framed against the appellant-Vinay Kumar Singh:
"आरोप मैं, बी०एम० त्रिपाठी, अपर सत्र न्यायाधीश/त्वरित न्यायालय संख्या-तीन, कानपुर-नगर आप अभियुक्त विनय कुमार सिंह पर निम्न आरोप आरोपित करता हूँ।
यह कि दिनांक 01-03-2008 को समय 13.00 पी०एम० रेलवे चालक विश्राम गृह के टीन शेड के सामने पकड़िया के पेड़ की खोह में दिशा उत्तर पश्चिम अन्तर्गत क्षेत्राधिकार थाना-रेलबाजार, कानपुर-नगर पर आप अभियुक्त की निशानदेही पर आला कत्ल तमंचा 315बोर एवं दो जिन्दा कारतूस 315बोर बरामद किये गये, जिन्हें रखने का आपके पास कोई वैध अधिकारपत्र नहीं था। इस प्रकार आपने आयुध अधिनियम की धारा-25 के तहत दण्डनीय अपराध कारित किया, जो इस न्यायालय के प्रसंज्ञान में है।"
15. Besides the above documentary evidence, at the trial, the prosecution also relied on oral evidence of nine witnesses. In that, two witness of fact were examined namely 'S' (P.W.-1) who is the mother of the deceased 'S-1' but who is not an eye witness and 'V' (P.W.-2) who is an eye witness. He is a child witness. Thereafter, Head Constable Ram Naresh Verma was examined as P.W.-3. He proved the registration of the case and the check F.I.R. Dr. P.K. Singh was examined as P.W.-4. He proved the Autopsy Report and the medical opinion about the occurrence. The Investigation Officer, Vinod Kumar Trivedi was examined as P.W.-5. He proved the investigation as also the arrest of the appellants. The Head Constable Ved Prakash Mishra was examined as P.W.-6. He proved the recovery of country made firearm of two live cartridges from the accused Vinay Kumar Singh. Then, the Investigation Officer Anand Narayan Tripathi was examined as P.W.-7 to prove the investigation in the connected case under the Arms Act. The Investigation Officer Girja Shanker Pandey was examined as P.W.-8 to prove the investigation in the connected case (under the Arms Act) and Inquest Report of the deceased in the main case. Shailendra Kumar Singh (P.W.-9) was examined to prove the docket sent to the Forensic Science Laboratory.
16. 'S' was examined first. During her examination-in-chief, 'S' narrated that the deceased 'S-1' was her daughter aged about eleven and a half year. The occurrence took place on 15.2.2008. She had gone to Delhi along with her elder son 'B', to secure the release of her husband who was in jail, at Allahabad. At that time, the deceased 'S-1', 'V' alongwith her four younger children were staying at the tin-shed/shelter. She returned to Kanpur by the train Gomti Express, on 15.02.2008 and reached her shelter at about 7.30 P.M. There she found the dead body of 'S-1' lying naked bearing injury marks on her head and hands. Blood was oozing from her nose and mouth and a knife had been stabbed in her private part. On making enquiry from 'V', she learnt that the occurrence had been caused by Vinay, Amarnath, Lambu, Santosh, Pappu, Shadab, Subhash, four helpers and Kanhaiya. They broke open the door of the room and committed wrong act on 'S-1' as also assaulted her and ran away towards the railway station. She explained that by wrong act she implied tearing of the clothes of 'S-1', assaulting her and committing rape on her. She also claimed, after committing rape, the accused persons stabbed a knife in the private part of 'S-1'. She described the accused Vinay as a Constable in R.P.F. and Amarnath as a resident of Rail Bazar. She also disclosed, earlier, she used to live in the house of Amarnath Singh, against advance payment of Rs. 15,000/-. About five to six months earlier, the son of Amarnath and his tenant eloped with 'S-1'. On information given to the police, pressure was applied by the police authorities. Thereupon, 'S-1' was restored to the custody of 'S'. However, she further stated, no F.I.R. was registered with respect to that occurrence, since Amarnath had paid bribe at the Police Station. For reason of that occurrence, the said Amarnath bore animus towards her. She identified Lambu, Amarnath, Shadab Ahmad, Pappu, Vinay and Kanhaiya, in Court. She further stated that Subhash was not present in Court. She also named another accused Pappu.
17. During her cross-examination, she denied that she had been forced to leave the rented accommodation of Amarnath Singh for reason of bad characters having visited her within the month of her occupying that premise. She could not recall when her husband had been detained. She admitted that on one side of her shelter there existed cycle stand, tempo stand, rickshaw stand and car stand. She also admitted that there existed a road adjoining the corner of the place where her shelter was located. She also admitted the presence of eateries and shops/stalls around that place as also that there was much traffic on that road.
18. She maintained that she had left her home for Delhi to secure the release of her husband, two days earlier. She feigned ignorance if her husband was arrested for his involvement in any illegal activities at the railway station. She maintained that her son 'V' had told her that the occurrence took place at about 7:00 P.M. on 15.02.2008. She could not explain why it was not recorded in the F.I.R. that the deceased had been stabbed in her private part, with a knife.
19. As to her visit to Delhi, she explained, she had gone there with her elder son 'B' to meet Shri Lalu Prasad Yadav, the then Union Minister. However, she could not meet him but she met the Commissioner on 13/14.02.2008. She gave some inconsistent description of the train ticket bought for that journey and that she had travelled to the house of the Commissioner in a bus etc. As to her return journey, she disclosed, she travelled by Gomti Express on 15.02.2008 and reached home at Kanpur at about 7:30 P.M. She claimed there were six children including the deceased present in the room/shelter where occurrence took place, but no one else from the vicinity was present. She also disclosed that she found that the deceased had suffered a fracture to one hand and that her fist was closed. She was bleeding from her nose and mouth as also her head.
20. She maintained that about 5-6 months prior to the occurrence, the son of Amarnath Singh had eloped with 'S-1' and that her custody was restored to her after eight days.
21. She denied the suggestion that 'S' and her family including her children were involved in illegal trade in food items on the railway station. She denied the suggestion that she had lodged false F.I.R. to teach Amarnath Singh a lesson. She maintained that her earlier complaint against the son of Amarnath and his tenant was true. She also denied the suggestion that she was aware that on 15.02.2008, Gomti Express reached Kanpur Central Railway Station, after 8 P.M.
22. As to her circumstance/presence inside the railway station, she disclosed that she was provided space to live in connection with the work given to her i.e. to cook food for the Loco Pilots. She had been engaged by the Manager/Supervisor but was being paid by a Contractor. She had worked in that status for 2-4 months and had received her wages from the Contractor. However, she could not recall the name of that Contractor. She also disclosed that she had co-workers. However, their details, she could not reveal.
23. As to the events that occurred after she discovered the dead body of 'S-1', she claimed she had not rushed her to a hospital as she was alone but that she took 'S-1' in a tempo to the hospital with the police. However, she could not recall the name of the hospital. She could not tell if the hospital was a private establishment or a government establishment. She claimed that she continued sitting in the tempo while the police officials took 'S-1' to the hospital. Yet, she maintained that the police returned early from that hospital. She also could not tell if 'S-1' was dead or alive, at that time. However, she maintained that blood was oozing from her body. Also, she maintained that the dead body of the deceased had become rigid.
24. She also stated that the dead body of the deceased was taken to the Police Station from the hospital and she was not aware if at that time senior police officers were present at the Police Station. Later, she could not recall if the dead body of 'S-1' was kept at the Police Station or sent back to her shelter. She asserted that the Inquest was conducted at Ursila hospital. She maintained that she made a statement during the investigation that the appellant Vinay Kumar Singh and other uniformed constables had assaulted her husband and threatened him in the month of May, prior to the occurrence. They also used to misbehave with her and had also assaulted 'V'. She further narrated that the uniformed R.P.F. personnel had also lodged false cases against her husband and therefore she hated them. She had tried to register a complaint against the appellant Vinay Kumar Singh to his superior officer, however no such report could be lodged. She tried to claim that she had made allegation of bad behaviour against the appellant Vinay Kumar Singh, in her F.I.R. but could not explain why such fact was not recorded in that F.I.R. Further, she claimed that for reason of bad behaviour suffered by her, she was medically examined on 26.7.2008 at the Duffrin hospital. She admitted that no X-ray examination was conducted, at that time. She admitted that she had received Rs. 40,000/- by way of ex-gratia payment from the State Government. She also suggested that her husband had been arrested at the behest of the appellant Vinay Kumar Singh who had also threatened with the same consequence visiting her, prior to his arrest. She denied that she had lodged a false case against Vinay Kumar Singh because he had objected to the activity of sale of food items and water bottles by her husband and her children, on the railway platform.
25. During her further cross examination, she claimed 'V' had also informed her about involvement of accused Kanhaiya, at the same time she denied that such disclosure was made to her but again tried to state that that other person was also involved in the occurrence. However, she could not explain why his name was not recorded in the FIR. She denied having demanded Rs. Two Lakhs from Kanhaiya to exclude him from this case. She also claimed to have named Pappu Baiyl in her Written Report but could not explain why his name was not included in the FIR.
26. As to the state in which she found the dead body of 'S-1', she disclosed that a lot of blood was oozing from the lower part of her body. It had spread over the rug and in the room. As to her clothing, she described that those were torn. She also alleged that there were marks on the dead body of the deceased and that the deceased had suffered many physical injuries. She denied that she had tutored her son 'V' to make a statement as recorded under Section 164 Cr.P.C.
27. Next, 'V' was examined as P.W.-2. First he was tested by the learned court below if he was competent to make the statement to the Court. Being satisfied, the learned court below proceeded to record his statement. During his examination-in-chief, 'V' narrated, after death of 'S-1', he had three surviving brothers and three surviving sisters.
28. Her mother 'S' used to work with the Railways whereas her father was a vendor. On the date of the occurrence, his father was in jail while his mother 'S' had gone to Delhi. At the time of the occurrence, he was present at the shelter alongwith his two younger sisters and one younger brother while his elder brother had accompanied his mother, to Delhi.
29. As to the occurrence, he disclosed that the appellant Vinay Kumar Singh, Lambu, Amarnath, Subhash, Pappu, Shadab and one more person (who was still at large) had caused it. They reached his shelter and asked the deceased to open the door. On her refusal, the appellant Vinay Kumar Singh broke open the door and all the accused persons entered the shelter, one by one. They gagged the mouth of 'S-1' and tied her hands behind her back. Then each of the accused committed rape on her, one after the other. Thereafter, Amarnath stabbed her on her private part. Lambu hammered a knife on the back of her head. It led to bleeding. He also alleged that the other accused had physically assaulted her. In the same breath, he narrated that the appellant Amarnath had assaulted the deceased on her head with a knife. He also claimed, no one responded to his cries for help. He also claimed to have been slapped twice by the appellant Vinay Kumar Singh, who told him that nothing had happened.
30. He further proved that there were two rugs in the shelter. One was used by him and his three younger siblings, to sleep whereas the other was used by the deceased.
31. On being asked to identify the accused persons in Court, he identified the accused Shadab correctly. He identified Amarnath as Lambu and Vinay Kumar Singh as Subhash. He could not identify Kanhaiya but insisted that he too was involved in the occurrence. He disclosed that he told his mother about the occurrence and involvement of the accused persons in the occurrence, after she returned from Delhi. He further proved his previous statement under Section 164 Cr.P.C. as Ex.Ka-2.
32. During his cross-examination, he first stated that 50 persons used to live in his 'Kothri'. He further claimed that the police was not pleasantly disposed towards them. However, he did not specify which police. He denied having seen his father work. He also denied that he identified any police personnel at the railway station and mentioned that they never visited his home. He maintained that his mother has left for Delhi 2-3 days after the arrest of this father to secure the release of his father who was in jail. He also maintained that his mother had arrived after 'S-1' had died.
33. As to the occurrence, he stated that the accused had arrived before sunset and they left after sunrise/dawn. The accused committed rape on the deceased till before they left. She cried for help but no one listened. At this stage, he described that the deceased had been assaulted with a knife by the appellant Vinay Kumar Singh. He insisted that the deceased had been stabbed on her private parts with whole knife and that it had been hammered inside her head. He further disclosed that he did not sleep through the night.
34. At this stage, he further stated that 'S' arrived two nights after 'S-1' died. He disclosed the occurrence to her at that time. Before that he had not disclosed the occurrence to anyone. He denied tutoring.
35. During his further cross-examination on 02.07.2009, he disclosed that his house was an enclosure of a brick and plastic sheets. It comprised of one room half of the size of the Court room. He also disclosed that that accommodation had one door. His family members used to live in that room with one corner used to cook food and the other for bathing. Rest of that room was used for sleeping. As to his education, he disclosed that he did not attend school or did not know counting or alphabets. During that cross-examination itself, he again stated that 'S' arrived the second day in the night, after the occurrence. He claimed that his siblings did not leave the room out of fear. He also disclosed that there was no 'Kundi' on the door but make shift bolt/'Sikkad'.
36. Then, he stated that light was kept in the room because the shelter existed on land earlier occupied by some miscreants. Those miscreants were not afraid of others. They had troubled his parents in the past. They had also caused trouble to 'S' about four days prior to her leaving for Delhi. He also stated that 5-6 days prior to occurrence the said miscreants had physically assaulted 'S'. They had also hurled abuses at her parents. As to their numbers, he described two miscreants had caused such occurrence. Both had worn kurta and pant. One was fair and the other dark. Both were tall. He did not know the names of those miscreants. Similarly, he stated that the accused persons Santosh and Pappu @ T.V. never visited his house/shelter, earlier but they used to roam around with a stick/'danda'. He further stated that prior to occurrence he used to go out of the shelter.
37. He further stated that the accused Pappu @ T.V. and Santosh had stayed for four hours. At this stage, he claimed that Lambu gagged 'S-1' with a cloth and that Pappu had tied her hands.
38. At this stage, he also claimed that his mother 'S' arrived one hour after the occurrence. At this stage, he further stated, he kept his younger siblings locked in the room till his mother arrived and stayed aware, all night.
39. During his further cross-examination on 25.8.2009, he indicated, at that time, his family had moved to Delhi where his father used to sell some eatables and that her mother used to participate in protests. On that date, he claimed that Vinay had gagged the mouth of the deceased and had tied her hands to her back.
40. During his cross-examination, on 9.9.2009, he claimed, Amarnath had stabbed the deceased on her private part and Santosh@Lambu had hammered the knife on the back of her head. He again stated that all accused persons had physically assaulted the deceased and that Amarnath had assaulted the deceased with the knife on her head. He denied suggestions; that he had not seen the occurrence; that he was making a false statement to implicate Vinay Kumar Singh; that the latter had not broken open the door; that he had not stabbed the deceased; that he had not committed rape on the deceased; that no rape had been committed on the deceased and that his statement made in that regard were false. He denied that Vinay had been falsely implicated because he used to check the family of the informant from illegally selling food items/eatables and water bottles on the Railway platform.
41. Thereafter, Head Moharrir Ram Naresh Verma was examined as P.W.-3. He proved the check F.I.R. of this case and G.D. Entry no. 49 dated 15.2.2008, recorded at 21.15 PM with respect to F.I.R. being lodged.
42. Next, Dr. Pradeep Kumar Singh was examined as P.W.-4. He proved three ante-mortem injuries suffered by the deceased as below:
"चोट नं0 1 - फटा हुआ घाव 2 सेमी0 X 1 सेमी० X हडडी तक गहरा। माथे की दाहिनी ओर भौंह के उपर।
चोट नं0 2 - कई खराशे 4 X 3 सेमी० की एरिया में बाये गाल के उपर।
चोट नं० 3 - नीलगू निशान 7 X 5 सेमी० सिर के दाहिने ओर टेम्पोरेल रीजन के उपर (कान के जरा ? में उपर)"
He further proved that he had prepared a vaginal slide of the deceased. He further proved that the death was caused about one and a half day prior to the autopsy examination conducted by him on 16.02.2008 and that death had been caused due to 'Coma'. He opined; it was possible that the death of 'S-1' was caused on 15.2.2008 at about 7:00 P.M.
43. During his cross-examination, he admitted that he had 15 years of experience and that he had conducted 150-200 autopsies. However, as to the post-mortem performed on the dead body of the deceased 'S-1', he admitted that the dead body had been cut open by the sweeper, and not him. With respect to semi-digested food and gas found in the abdominal cavity of the deceased, he opined; the death may have been caused between 8:00 P.M. on 14.02.2008 and 8:00 A.M. on 15.02.2008. He clarified his earlier stand as to the time. He was not recalled by the prosecution. He insisted that other than the three injuries noted in the post-mortem report, no other injury had been caused to the deceased. He further proved that no internal injury was noted on the reproductive organs or the vagina or the uterus of the deceased. He further proved that the injuries suffered by the deceased may not have been caused by any sharp-edged weapon and that he had not found any incised wound on the private part of the deceased.
44. Thereafter, S.O. Vinod Kumar Trivedi was examined as P.W.-5. He proved the recovery of a blood-stained stone from the place of occurrence. He proved that it had been described as the weapon of assault. He proved that he had recorded the statements of Sripal and others on 16.2.2008 and arrested the accused persons Vinay Kumar Singh, Amarnath, Santosh Kesarwani (alias Lambu), Pappu Gupta (alias T.V.) from the Railway Station, Kanpur, that day and their statements were recorded at the Police Station. Also, he proved, the arrest and inquest were recorded in the Case Diary and that he arrested the accused Shadab on 22.02.2008 at about 11:00 P.M. from near Rail Bazar and recovered an open condom at his pointing out. He also proved the arrest of another accused Kanhaiya. According to him, the accused Pappu Gupta @ T.V. was arrested on 25.02.2008 at about 11:00 AM from COD crossing, G.T. Road. At this stage, he also proved, after the arrest of Vinay Kumar Singh, he led to the recovery of a country made pistol and two live cartridges, on 01.03.2008. Now, its butt was described to have been used to assault the deceased. He also proved the recovery of the blood stained pieces of matting and blanket as also blood stained brick - described as the weapon of assault and clothing of the accused persons (recovered by him from their person) sprinkled with bloodstains.
45. During his cross-examination, he admitted there was no narration in the F.I.R. that the assault had been caused with a brick. He proved that there was no partition inside the room where the occurrence had been caused. He now claimed that Pappu Gupta @ T.V. and Santosh Kumar Kesharwani @ Lambu had been arrested from the Taat Mill crossing, on 16.02.2008 on information provided by an informer. Clothes were recovered from their person at the Police Station. He admitted, no independent witness of that recovery exists. He claimed, the changed clothes became available to the accused at the Police Station. Those were provided by the family members of the accused. However, he could not recall the details of such persons.
46. During his further cross-examination, he admitted the presence of media personnel and senior officials of the police, at about 11:00 P.M., after the F.I.R. had been registered. He feigned ignorance if the weapon of assault exhibited, namely, the blood-stained brick had been used to cause the occurrence. Yet, he admitted his prior statement made to the Court that he had found the blood-stained brick lying at the place of occurrence - used to cause the occurrence.
47. He denied the suggestion that Vinay Kumar Singh had been arrested from the Railway Station. He maintained that accused had been arrested on 16.02.2008 from near the Taat Mill crossing, with his official Wireless-Set. He feigned ignorance that such Wireless-Set may have been issued to the appellant-Vinay Kumar Singh at the time of his duty assignment. He denied his prior statement that the accused persons - Amarnath, Vinay Kumar Singh, Santosh Kesarwani and Pappu Gupta had been arrested from the Railway Station, Kanpur. He admitted the absence of arrest memo, of three arrests and that there were no independent witnesses of those arrests made at 01:30 PM, on 16.2.2008. He admitted that the Autopsy Report does not make any mention of either rape or injury suffered on her private part, by 'S-1' and that he had also not made any mention of such occurrence, in the Case Diary. He stated, 'V' had told him that his mother 'S', father and other family used to sell cooked food at the railway station and that the police used to beat them. Also, it had arrested his father. He denied that 'S' had stated that she had accompanied police personnel with 'S-1' for her treatment. He also denied that 'V' had told him that 'S' had arrived two nights after the occurrence. He further denied that 'V' had told him that Vinay Kumar Singh broke open the door of the shelter or that he had tied the hands of 'S-1'behind her back or that he had stabbed the deceased anywhere or that Santosh @ Lambu had hammered a knife on her head or that Vinay Kumar Singh had slapped 'V' and told him to keep quiet. He denied the suggestion that there existed any dispute between the Civil Police and the R.P.F., with respect to any illegal activity of the Civil Police demanding and collecting bribes from unlawful vendors, on the railway premises.
48. Thereafter, Head Constable Ved Prakash Mishra was examined as P.W.-6. He proved the recovery of the country made firearm at the pointing out of the appellant-Vinay Kumar Singh.
49. Next, S.I. Anand Narayan Tripathi was examined as P.W.-7. He proved the investigation with respect to the FIR lodged under the Arms Act.
50. Next, S.I. Girja Shanker Pandey was examined as P.W.-8. He proved the initial investigation in the case lodged under Arms Act. Also, he proved facts pertaining to the Inquest.
51. Next, Constable Shailendra Kumar Singh was examined as P.W.-9. He proved the docket with respect to items sent for forensic examination.
52. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C. Besides denying the adverse circumstance put to them, it was suggested by Vinay Kumar Singh that he was on duty at the time of the occurrence and that he was arrested while on duty, on 15.02.2008. He stated that the occurrence of rape was not supported by the autopsy report and that he had been falsely implicated for reasons of dispute between the R.P.F. personnel and the Civil Police personnel with respect to bribe being collected by the Civil Police personnel - to allow unlawful vendors to run their business inside the railway premises.
53. Thereafter, defence evidence was recorded. In that, nine witnesses were examined. Ram Kumar, a licensee engaged in sale of refreshments on the railway platform at Kanpur Central Railway Station, was examined as D.W.-1. He disclosed that he learnt from newspapers about the murder of 'S-1' and that the accused Vinay Kumar Singh had been implicated therein. According to him the said accused was assigned duty on railway platform. 'S' and her husband were unauthorised vendors. The husband of 'S' used to sell 'Poori' while 'S' used to supply food items etc. to him. About 4-5 months prior to the occurrence, the said accused had scolded the son of 'S' and thus stopped him from unauthorisedly selling water bottles on the railway platform. Later, 'S' arrived at the scene and quarrelled with the accused Vinay Kumar Singh and threatened the latter with false implication in a case, if he would continue to object to their illegal activities. The witness claimed to have intervened and pacified 'S'. According to him, 'S' may have falsely implicated Vinay Kumar Singh for reason of those disputes. During his cross-examination, he did not maintain that on the date of occurrence the accused Vinay Kumar Singh was on duty in the 'Window area', on the southern side of the railway station. However, he admitted - licensed vendors suffered losses due to the activities of unlicensed/illegal vendors.
54. Next, Sartaj Alam, an employee of the parking contractor at the Kanpur Central Railway Station was examined as D.W.-2. He proved that he remained on duty at the licensed parking area on the Cantonment side of the railway station from about 4 P.M. on 15.02.2008 to about 8 A.M., the next day. In that, he remained on duty near the ticket window from 4 PM to 10:30 PM on 15.02.2008. He proved that he had met the accused Vinay Kumar Singh at about 5 P.M. on 15.02.2008 while he was on duty in uniform, and was carrying his hand-held Wireless set. He further proved that the said Vinay Kumar Singh called the witness and directed him to remove the vehicles wrongly parked in front of the ticket counter. At about 9:30 P.M. on 15.02.2008 a few police vehicles came to the parking lot. However, the witness did not disclose knowledge of the reason for the same. The next day, he learnt from newspapers that Vinay Kumar Singh had been arrested for the murder of 'S-1'. During his cross-examination the same witness could not disclose the name of any other Constable of the RPF who may have been on duty along with the accused Vinay Kumar Singh, that day. He further denied having read any newspaper, the next day. He disclosed, that he had heard about the occurrence.
55. Next, M.N. Ansari, the then Deputy Station Superintendent was examined as DW-3. He proved that on 15.02.2008, the train Gomti, arrived at Kanpur Central Railway Station at 20.05 hours at platform No. 7 and it departed at 20.20 hours.
56. Next, Sub-Inspector Rajender Kumar Saxena, of RPF was examined as D.W.-4. He was on duty on 15.02.2008 from 4 PM to midnight as Bell Incharge and Shift Incharge. He proved that he inspected the Constables on duty and dispatched them according to the Duty List alongwith Walkie Talkie sets i.e. the Wirelss Handsets. He further proved that the accused Vinay Kumar Singh was assigned duty at the ticket booking window on the Cantonment side of the Railway Station. That fact was recorded in the General Diary at 1515 hours against Entry No. 51. Besides proving the handwriting with respect to that entry, he proved that that entry was recorded on his narration. He thus proved that General Diary entry. He also proved that amongst others, upon due inspection, the accused Vinay Kumar Singh was found present, on duty. At about 2335 hours the accused Vinay Kumar Singh informed the witness over the Walkie-Talkie set and asked to meet him, immediately. The witness reached the duty place of Vinay Kumar Singh, near the ticket window. There he found that the Circle Officer Mr. Akarwak, S.H.O. Police Station, Rail Baazar and his companion police officers were questioning the accused Vinay Kumar Singh about something. They tried to arrest him. On that, that witness objected and apprised the civil policemen that Vinay Kumar Singh was on government duty at that time and he may be required to accompany them after his duty hours. The civil policemen did not relent. Rather, they offered discourteous response to that witness and forcibly took away Vinay Kumar Singh with them along with his Walkie-Talkie set. At this development, the witness informed his superior officers about the same over telephone and Walkie-Talkie. He also proved the General Diary Entry No. 5 on 16.02.2008, recorded at 0015 hours, in his hand. Thus, he established that the accused Vinay Kumar Singh was arrested while he was on duty on 15.02.2008. He further proved, thereafter, he along with the officer Incharge Satyendra Yadav and others went to the Police Station Rail Baazar. There he learnt, some lady had made a complaint against the accused Vinay Kumar Singh and others in connection whereto, the latter had been arrested. Despite representation made by officers of R.P.F., he was not released. Upon returning from that Police Station, the officer Incharge Satyendra Yadav prepared the report number 16 on 16.02.2008 at 0615 hours and recorded their return in the General Diary, in his handwriting. It was marked as Ex. Kha-6.
57. During his cross-examination, the witness admitted that there did not exist any record of inspection conducted by him to ascertain duty performed by the accused Vinay Kumar Singh on 15.02.2008. However, he proved on the strength of General Diary entry dated 15.02.2008 that he had gone on patrolling at 1805 hours, that day. In that, he had arrested (on spot), a ticketless traveller. He explained the over writing of the name of one of the 11 constables, namely Vinay, who were assigned duty, by him. He disclosed that there was only one Constable with the name Vinay Kumar/Vinay Kumar Singh. He had been assigned duty near the ticket window on the Cantonment side of the Kanpur Central Railway Station. He identified the signature against the name Vinay in the General Diary as that of the accused Vinay Kumar Singh. He denied the suggestion that the entries in the General Diary were prepared later or that those were prepared to protect the accused Vinay Kumar Singh.
58. Next, Head Clerk, K.G. Dubey, an employee of the Railways was examined as DW-5. He is an independent witness. He was on duty on 15.02.2008 at Central Male Driver Running Room, from 1600 hours to 2400 hours. He reported for duty at about 5 PM and took over charge from Lalta Singh. At that time, he received a phone call from a contractual kitchen staff working at the New Running Room for Diesel Drivers, calling him to come over for urgent work. When he reached that place, he found a large crowd had gathered. He heard someone saying that a girl had died. He and Lalta Singh saw the dead body of the girl. Lalta Singh telephonically informed the superior officer - CC/CNB that a girl was lying dead in the Diesel Drivers Running Room. Lalta Singh was directed by that superior officer to prepare a memo of that information and to pass it on to Lobby ATFR and GRPF. Lalta Singh complied that direction and handed over the memo to ATFR, Mohd Ali. Thereafter the said Mohd. Ali and that witness (DW-5) went to the GRP Police Station. They refused to accept the memo. The two returned and the witness DW-5 went back to his work. He proved that the dead body was found lying inside a temporary shelter made with brick stacks and plastic sheets near the Diesel Drivers Running Room. He also proved that he had participated in an enquiry conducted (in that regard), by senior officers of RPF, in April 2008. His statement was recorded in that enquiry. As to Lalta Singh, he died on 04.07.2011.
59. During his cross-examination he described that the shelter where the dead body of 'S-1' was discovered was at about 25 paces from the Diesel Drivers Running Room. He confirmed that he received the information at 5 P.M. when he was in the process of taking over charge. He clarified that his duty hours started from 4 P.M. He also described the presence of more than 15-50 people in the crowd that had gathered outside the shelter where the dead body was discovered. He explained that he saw the dead body from a distance of 5-10 paces. At that time neither the GRP nor RPF nor the Civil Police were present. He denied the suggestions that he had not visited the spot or that he had not gone to the GRP Police Station or that the occurrence had not taken place on railway premises or that he was making a false statement to protect the accused persons.
60. Next, Inspector Satyendra Yadav, of the RPF was examined as DW-6. He stated, on 15.02.2008, he was the Inspector In-charge Police Station RPF, Kanpur Central Railway Station. On the day of the occurrence, constable Vinay Kumar had been assigned duty in the circulating area on the Cantonment side of that Railway Station from 4 P.M. to 12 midnight. He confirmed, A.S.I., R.K. Saxena informed him that night that the Rail Bazaar police had taken the accused Vinay Kumar Singh to that Police Station. In response to that information, he went to the Rail Bazaar Police Station with his superior officers A.S.C. Kanpur, Shri. G. S. Sodhi, Inspector C.I.B. Shri Tomar and other S.S.I. Vikram Kumar Singh, R. K. Dubey and A.S.I., R. K. Saxena. There, the D.I.G. Kanpur, S.S.P. Kanpur, C.O. Shri. Akhlaq Ahmed and many civil police personnel were present. The accused Vinay Kumar Singh was in police custody, in his uniform, at that time. Upon inquiry, he was informed by the civil policemen that 'S' had lodged a case alleging Vinay Kumar Singh had murdered her daughter. The Civil Police did not release Vinay Kumar Singh even after the A.S.C. (i.e. G.S. Sodhi) informed them that the former was on duty at the relevant time and he had not caused the occurrence. Upon returning to their Police Station, due report was made recording the aforesaid facts against Entry no. 16, dated 16.02.2008 at 6:15 A.M., as already proved by A.S.I., R. K. Saxena. He also proved the duty assignment of the accused Vinay Kumar Singh, on 15.02.2008 and the facts pertaining to the domestic enquiry/Court of Enquiry faced by that accused person, arising from the same occurrence.
61. During his cross examination he maintained that he remained on duty on 15.02.2008 from 9.25 A.M. to 7.20 P.M. and that he had prepared the shift of his staff, that day. He also stated he had not made any inspection that day but he used to sign the General Diary, after checking the entries recorded therein. He denied over writing in the name of the accused Vinay Kumar, in the report no. 51. He admitted, against duty assignment of 12 persons, only 11 had signed. Yet, he maintained, the signature of Vinay Kumar Singh was present on that report. As to transactions arising at the Rail Baazar Police Station after the arrest of Vinay Kumar Singh, he maintained his earlier stand.
62. Next, Assistant Security Commissioner, R.P.F. Allahabad, Shri. M. P. Singh was examined as D.W.-7. He proved his report at the Court of Enquiry instituted against the accused Vinay Kumar Singh at Ex.Ka-8.
63. Thereafter, Mohd. Shafiq was examined as D.W.-8, by the co-accused Amar Nath (since dead).
64. Last, Mohd. Nasir Khan, Advocate was examined as D.W.-9, by the accused Vinay Kumar Singh.
65. In such facts learned Amicus Curae has submitted entire prosecution story rests on the wholly unreliable solitary testimony of a child witness 'V'. That witness has not offered a materially consistent or credible proof - either of the names of the accused persons or their identification or their role assignment in the assault committed on 'S-1' or as to the manner of assault. His testimony is full of material improvements, inconsistencies and contradictions, on all those counts.
66. First, though not narrated in his statement recorded under Section 164 Cr.P.C. at the trial, he named Vinay Kumar Singh, Lambu, Amarnath, Subhash, Pappu, Shadab and one more person (unnamed) as the 7 assailants who barged into his house/shelter and committed gang rape on 'S-1', one after the other. In that he first narrated - Amarnath stabbed the victim on her private part while Lambu hammered a knife at the back of her neck and the others physically assaulted her. Later, during his examination in chief itself, he described the accused Amarnath causing the knife injury at the back of the head of 'S-1' while Vinay Kumar Singh slapped him twice.
67. Even if those material improvements and inconsistencies are overlooked (referring to the medical evidence) it has been stressed, the version of the occurrence as narrated by the child witness is wholly contradicted. There is absolutely no corroboration arising from the medical evidence to establish either 'S-1' had suffered rape less so repeated/gang rape or that she had been stabbed on her private part or that a knife had been hammered at the back of her head. The autopsy report only established the presence of lacerated wounds, contusions and bruises, all to the upper half of the body of 'S-1' and not on the lower half, limbs or private parts.
68. Dealing with the report submitted by the Forensic Science Laboratory, it has been submitted that the same is inconsequential as to occurrence of rape. Though it has been opined that semen marks were present on the clothing of the accused persons sent for forensic examination that evidence may never be read to infer commission of rape by the appellants, in the absence of semen detected in the vaginal swab drawn from the deceased and in the complete absence of medical opinion (in the autopsy report), to support the allegation of rape.
69. The presence of semen marks detected on the clothing of the accused persons has been doubted in the context of the arrest of the accused persons and the way their clothing came to be recovered. No arrest memo exists to establish that the accused persons were arrested on 16.02.2008 from near the Taat Mill Crossing. In fact, Vinay Kumar Singh, Amarnath, Santosh Kesarwani alias Lambu and Pappu Gupta alias TV were arrested on 15.02.2008 from the Railway Station. They were taken to the Rail Baazar Police Station. The clothes worn by them were taken from them, there. How, the semen marks came to be noted on those clothing, remains unexplained. In that regard, heavy reliance has been placed on the defence evidence led by S.I. Rajendra Kumar Saxena DW-4 and the documentary evidence duly proven by the defence to establish that the accused Vinay Kumar Singh was on government duty on 15.02.2008, at the time of his arrest. In that regard, reference has also been made to the material inconsistencies in the oral evidence led by Vinod Kumar Trivedi (PW-5), as to the date, place and time of arrest of the accused persons Vinay Kumar Singh, Amarnath, Santosh Kesarwani and Pappu Gupta. Though, he first stated that those persons had been arrested on the date of occurrence i.e. 15.02.2008, from the Railway Station, later he changed his stand and stated that they had been arrested on 16.02.2008 from near the Taat Mill crossing. In absence of the arrest memo and further in absence of any independent witness of that arrest and further in absence of any proof offered by the prosecution as to how the clothing worn by the accused persons at the time of their arrest came to be recovered and there being no proof of such recovery in the presence of any independent witness and further in the absence of any proof of how changed clothes came to be supplied to the accused persons, the semen marks on the clothing of the accused persons has clearly been manufactured by the Investigation Officer.
70. Second, though 'V' did prove that up till the occurrence, he used to go out of his shelter and though he had earlier lived with his family at the house of Amarnath and thus knew the accused persons from before, he could correctly identify only Shadab. He identified Amarnath as Lambu; Vinay Kumar Singh as Subhash; he could not identify Kanhaiya. Clearly, he had not seen the occurrence as he was not present at the time and place of occurrence.
71. Third, in that regard, even as to the date and time of the occurrence, the said witness has offered a materially inconsistent and patently false account. First, contrary to the F.I.R. story, in his statement recorded under Section 164 Cr.P.C. he narrated, he saw the occurrence in the light of an electric bulb, during night hours, and they left in the morning. Then, at the trial, he narrated that the accused persons had reached the shelter before sundown and left before sunrise. Thereby, he clearly indicated that the occurrence was not caused in the evening of 15.02.2008, as narrated in the FIR lodged on that date at 2115 hours but at least, a day earlier. Consistent thereto, he described that his mother 'S' arrived two nights after the occurrence. He maintained that account during his initial cross-examination. Later, he changed his stand and stated that his mother 'S' had arrived one hour after the occurrence. The two stands taken by the solitary eyewitness who happens to be a child witness, are materially conflicted. Those two stands taken by that witness cannot be reconciled.
72. No circumstance exists to give credence to either stand taken by the solitary eyewitness/child witness. The independent eyewitness at the trial namely the Head Clerk, K.G. Dubey (DW-5), who is a railway employee unequivocally proved that the dead body of 'S-1' was discovered and reported to the railway authorities at 5 PM on 15.02.2008. There is no occasion to doubt that narration. Neither the said witness is an interested witness nor there is any reason to doubt that statement made by him. Reference has also been made to the evidence led by Dr. Pradeep Kumar Singh (PW-4), to assert that the death may have been caused between 8 PM on 14.02.2008 and 8 AM on 15.02.2008. It clearly corroborates the statement made by Head Clerk, K.G. Dubey (DW-5).
73. Then, as to the substantive charge of gang rape, it has been stressed, there is no medical evidence to establish that offence. In the absence of any injury noted on the private part of the deceased and in the absence of any semen stain noted on the body of 'S-1' and in the absence of semen detected on the vaginal swab drawn from the deceased, there is no corroboration available - to the allegation of rape made on the strength of the oral evidence of the solitary eyewitness/child witness.
74. Fourth, in the absence of any proof of rape committed on 'S-1', absolutely no motive was proven against the surviving appellants. Amarnath was described as a Contractor. With him, 'S' had a tenancy dispute. Also, according to the prosecution story, earlier, his son had eloped with 'S-1'. The surviving appellants Vinay Kumar Singh and Santosh Kesarwani are unconnected to Amarnath. While Vinay Kumar Singh was a Constable with the RPF, Santosh Kesarwani and other accused were manual labourers. No evidence was led by the prosecution to establish any common intention or motive with all the accused persons, to cause the murder of 'S-1'. In any case 'S' the mother of the deceased 'S-1' and the child witness 'V' had a serious grouse with the accused Vinay Kumar Singh, as was proven by her.
75. Fifth, referring to the statements made by the surviving appellants under section 313 Cr.P.C., it has been stressed, the alleged adverse circumstance of blood found present on the vaginal swab drawn from the deceased 'S-1' was not confronted to the accused persons. Similarly, it was not confronted to the accused persons that any injury had been proved by the prosecution - as received by the deceased 'S-1', on her private part. While no such injury existed, in absence of confrontation offered with respect to presence of blood in the vaginal swab drawn from the deceased, there may have existed other circumstances to explain the same.
76. Sixth, it has been submitted, the prosecution has not acted fairly at the trial. Admittedly the prosecution story is based on the solitary eyewitness account offered by the child witness 'V'. Instead of examining him first, the prosecution deliberately examined 'S' first. She being the mother of 'V', the prosecution coloured the picture of its case for the benefit of 'V' even before it had been made by the said solitary eyewitness/child witness 'V'. His mother having deposed first, the said child witness followed what his mother had already stated in court and tried to offer the same version as his eye witness account. In view of that unfair conduct at the trial, the material inconsistencies and improvements in the statement made by the child witness 'V' gain importance. In view of the entirety of the submissions made above, it has been submitted that the statement made by 'V' is wholly unreliable. In any case in absence of any corroboration (to his version), proven by the prosecution, the learned court below has erred in convicting the appellants.
77. In support of his submissions, learned Amicus Curiae has relied on the following precedent:
i). Vadivelu Thevar & Ors. vs The State of Madras, AIR (1957) SC 614.
ii). K. Venkateshwarlu vs The State of Andhra Pradesh, (2012) 8 SCC 73.
iii). Pradeep vs The State of Haryana, AIR (2023) SC 3245.
iv). Namdeo vs The State of Maharashtra, (2014) 14 SCC 150.
v). Ram Swaroop Verma & Ors. vs State of U.P., (2016) SCC OnLine All 169.
78. Responding to the above, Sri. L.D. Rajbhar, learned AGA would submit that the place of occurrence is not disputed. Asserting the credibility and reliability of the statement made by 'V' a child witness, it has been vehemently asserted that he was first tested by the learned court below in terms of the requirement of law under section 118 of the Indian Evidence Act, 1872. After the learned court below was satisfied on that count, the statement of 'V' was recorded. There is no challenge raised in this appeal, to the competence of 'V' or to the assessment made by the learned court below. Seen in that light it has been stressed that the said witness never stated that any part of his statement made to the Court, was false.
79. In fact, his presence has not been doubted by the defence, at any stage of the trial. Therefore, it is not open to the defence/appellants to raise that plea at this stage, in this appeal. It has also been urged, besides 'V', two other persons namely, Mushtaq and Mohd. Afaq had also identified the accused persons as the persons who had caused the occurrence. At the same time, on enquiry made, learned AGA would state that those two persons were not examined at the trial.
80. Dealing with the alleged inconsistencies and improvements in the statement made by 'V', it has been stressed, he was only eight years old on the date of the occurrence. The occurrence took place at about 7 PM on 15.02.2008 whereas the F.I.R. was lodged on the same day at 9.15 PM. It was wholly prompt. The FIR version wholly corroborates the eye witness version of the occurrence, offered by 'V'. Therefore, the oral evidence led by him is wholly reliable.
81. As to absence of corroborative medical evidence in support of allegation of rape, it has been stressed, due corroboration exists in the shape of Inquest Report. It records 27 injuries suffered by the deceased 'S-1'. Thus, the eyewitness account of 'V' finds wholesome corroboration from the Inquest Report.
82. It has also been submitted, once occurrence of rape has been established on the strength of oral evidence, that may not be disbelieved by relying on the medical opinion. By very nature, the medical opinion may only provide corroborative material to the eyewitness account. The fact that it does not corroborate the oral evidence may not lead to a conclusion that it therefore contradicts and disproves the oral evidence.
83. On the issue of arrests, it has been stressed that the prosecution duly proved that the accused persons namely Vinay Kumar Singh, Amarnath, Santosh Kesarwani and Pappu Gupta were arrested on 16.02.2008 from near the Taat Mill Crossing. That fact was proven by the prosecution witnesses. No other conclusion may be drawn as to that fact by relying on the defence evidence. The FSL report duly confirmed the presence of semen stains on the clothing worn by the accused persons, at the time of their arrest. That fact clearly corroborates the involvement of the accused persons in the occurrence. However, it could not be disputed that the alleged adverse fact of semen stains reported on the clothing of the accused persons, was not confronted to them at this stage of their statement being recorded under section 313 Cr.P.C.
84. Having heard counsel for the parties and having perused the record, in the first place, there can be no denial to the fact that the dead body of 'S-1' was found on 15.02.2008, lying inside a temporary shelter that existed on the railway property generally described as Kanpur Central Railway Station. Whether that dead body was discovered at 5 PM (by railway official) or at 7 PM (by 'S'), the FIR lodged at 9:15 PM that day, was prompt with reference to the discovery of the dead body.
85. Yet, besides the solitary eyewitness/child witness 'V' no other witness was examined by the prosecution to prove the date, time or the manner of the occurrence or to prove the identity of the accused persons who may have caused that occurrence. 'S' the mother of the deceased 'S-1', admittedly had gone to New Delhi a few days earlier. She returned on 15.02.2008 by the train Gomti Express that had scheduled arrival time at Kanpur Central Railway Station in the evening and reached her shelter not before 7:30 PM (as proven by her). Yet, it was proven through credible and independent evidence led by the defence through Sri M.N. Ansari that that train arrived at Kanpur Central Railway Station at 2005 hours, on 15.2.2008. It is her own case that she derived knowledge about the occurrence from her son 'V' (who became the solitary eyewitness at the trial), after she arrived by that train. No other fact witness was examined by the prosecution, to prove its case.
86. In Vadivelu Thevar (supra), the Supreme Court categorised witnesses at a criminal trial in three categories namely, wholly reliable, wholly unreliable and partially reliable. In that regard it was observed as below:
"11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
(emphasis supplied)
87. As to when a witness may be described as partially reliable for one who is neither wholly reliable nor wholly unreliable, the Supreme Court in Shahaja alias Shahajan Ismail Mohd. Shaikh vs State of Maharashtra, (2023) 12 SCC 558, has observed that the Court may first examine if the presence of a witness is established. Second, the Court may examine if the witness has made material improvements or made materially inconsistent statements on the key aspects required to be examined at the trial. If on either of the two or both aspects reasonable doubts exist, such a witness may be categorised as neither wholly reliable nor wholly unreliable or as we like to describe partially reliable witness. In that regard it has been observed as below:
"30. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
(emphasis supplied)
88. Next, in K. Venkateshwarlu (supra) the Supreme Court cautioned that the testimony of a child witness must be subjected to close scrutiny and in that the attendant circumstances must be examined by the Court to ascertain that the child was not acting under influence. In that regard, it was observed as below:
"9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it."
(emphasis supplied)
89. Then, in Pradeep (supra), recently the Supreme Court discussed the issue of reliability of a child witness and observed that though independent corroboration to the evidence led by a child witness is not a rule of law but it is a measure of caution or prudence. In that regard it has been observed as below:
"10. We have carefully considered the submissions. The fate of the case depends on the testimony of the minor witness Ajay (PW 1). Under Section 118 of the Evidence Act, 1872 (for short "the Evidence Act"), a child witness is competent to depose unless the court considers that he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. As regards the administration of oath to a child witness, Section 4 of the Oaths Act, 1969 (for short "the Oaths Act") is relevant. Section 4 reads thus:
"4. Oaths or affirmations to be made by witnesses, interpreters and jurors.--(1) Oaths or affirmations shall be made by the following persons, namely--
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.
(2) * * *
11. Under the proviso to sub-section (1) of Section 4, it is laid down that in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness. In this case, in the deposition of PW 1 Ajay, it is mentioned that his age was 12 years at the time of the recording of evidence. Therefore, the proviso to Section 4 of the Oaths Act will not apply in this case. However, in view of the requirement of Section 118 of the Evidence Act, the learned trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.
12. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The court must make careful scrutiny of the evidence of a child witness. The court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the court with care and caution.
13. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the appellate court can go into the correctness of the opinion of the trial court."
(emphasis supplied)
90. Referring to the pre-existing precedential law and after offering a detailed analysis thereof, in Namdeo (supra) the Supreme Court stated as below:
"21. In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] referring to Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] this Court stated: (AIR pp. 618-19, para 10) "On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes."
23. In the leading case of Shivaji Sahebrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] this Court held that even where a case hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given the sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration.
"It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs." (SCC p. 807, para 19).
24. In Anil Phukan v. State of Assam [(1993) 3 SCC 282 : 1993 SCC (Cri) 810 : JT (1993) 2 SC 290] the Court observed: (SCC p. 285, para 3) "Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."
25. In Kartik Malhar v. State of Bihar [(1996) 1 SCC 614 : 1996 SCC (Cri) 188] referring to several cases, this Court stated: (SCC pp. 619-20, para 7) "7. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case [AIR 1957 SC 614 : 1957 SCR 981 : 1957 Cri LJ 1000] and, therefore, conviction can be recorded on the basis of the statement of a single eyewitness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eyewitness particularly as the incident might have occurred at a time or place when there was no possibility of any other eyewitness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence."
26. In Chittar Lal v. State of Rajasthan [(2003) 6 SCC 397 : 2003 SCC (Cri) 1377 : JT (2003) 7 SC 270] this Court had an occasion to consider a similar question. In that case, the sole testimony of a young boy of 15 years was relied upon for recording an order of conviction. Following Mohd. Sugal [AIR 1946 PC 3 : 50 CWN 98 : 222 IC 304 : 1946 All LJ 100] and reiterating the law laid down therein, this Court stated: (SCC p. 400, para 7) "The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Evidence Act, 1872 (in short 'the Evidence Act'). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact."
27. Recently, in Bhimappa Chandappa Hosamani v. State of Karnataka [(2006) 11 SCC 323 : (2007) 1 SCC (Cri) 456] this Court held that testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony."
(emphasis supplied)
91. Recently, in State of Madhya Pradesh Vs. Balveer Singh, 2025 SCC OnLine SC 390, the entire conspectus of the law pertaining to evidence of child witness and test of tutored testimony was examined by the Supreme Court. The law was summarised as below:
"58. We summarize our conclusion as under:--
(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.
(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.
(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.
(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.
(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.
(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.
(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.
(VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.
(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.
(i) .....
(ii) Whereas the evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the following two factors have to be established being as under:--
• Opportunity of Tutoring of the Child Witness in question whereby certain foundational facts suggesting or demonstrating the probability that a part of the testimony of the witness might have been tutored have to be established. This may be done either by showing that there was a delay in recording the statement of such witness or that the presence of such witness was doubtful, or by imputing any motive on the part of such witness to depose falsely, or the susceptibility of such witness in falling prey to tutoring. However, a mere bald assertion that there is a possibility of the witness in question being tutored is not sufficient.
• Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated. This may be done by leading evidence to prove a strong and palpable motive to depose falsely, or by establishing that the delay in recording the statement is not only unexplained but indicative and suggestive of some unfair practice or by proving that the witness fell prey to tutoring and was influenced by someone else either by cross-examining such witness at length that leads to either material discrepancies or contradictions, or exposes a doubtful demeanour of such witness rife with sterile repetition and confidence lacking testimony, or through such degree of incompatibility of the version of the witness with the other material on record and attending circumstances that negates their presence as unnatural.
(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness."
(emphasis supplied)
92. Seen in that light, we propose to scrutinise the evidence led by the solitary eyewitness/child witness 'V', before anything else. Here we find, he claimed to have been present inside the shelter from before, during and after the occurrence took place. At the same time, he also described, after the occurrence he alongwith his surviving younger siblings remained confined in the same room/accommodation till his mother 'S' arrived. As claimed by him and as was also proven by the Investigation Officer Vinod Kumar Trivedi (P.W.-5), there was no partition inside that temporary shelter that was small (described as half the size of the courtroom - where the statement of 'V' was recorded). Yet, he maintained that he did not leave the room till his mother namely, 'S' arrived.
93. Seen in that light, 'S' disclosed the time of the occurrence to be 7 p.m., on 15.02.2008, in the F.I.R. lodged by her at 2115 hours on 15.2.2008. That narration was made on the strength of facts disclosed to her by 'V' only. She had not seen the occurrence. By that time, the autopsy examination has not been conducted and therefore it was not known either to 'S' or 'V' that the medical opinion would suggest the time of death between 8:00 PM on 14.02.2008 and 7:00 AM on 15.02.2008. That fact became known next day on 16.02.2008, when it was opined by Dr. Pradeep Kumar Singh (P.W.-4) that 'S-1' died one and half day. day before the autopsy examination conducted at 2.15PM on 16.02.2008.
94. Then, for no reason to exist, the statement of 'V' was not recorded, promptly. In his statement recorded under Section 164 Cr.P.C. on 24.08.2008 i.e. more than two months after the occurrence, by which time the Autopsy Report had become known, 'V' made a different narration and materially changed the time of occurrence to 'night' and further claimed to have seen the occurrence in the light of an electric bulb. Though, he did not specify the date of the occurrence but now he changed stand and in that he specified that by the time his mother 'S' arrived, it was morning. In doing that, he changed the time of the occurrence from p.m. on 15.02.2008 to night which would have to be the intervening night of 14/15.02.2008. He also changed the time of arrival of 'S', to well Upto that stage, the defence had no opportunity to create any doubt inasmuch as the statement under Section 164 Cr.P.C. was got recorded by the Investigation Officer before the learned Magistrate, ex-parte to the defence. To that extent, the prosecution witness was the master of his stand. That material improvement offered by him lends serious doubt as to its truth fullness.
95. Yet, at the trial 'S' was examined first. She reiterated the FIR narration that she reached the shelter at about 7.30 p.m. and discovered the dead body of 'S-1'. She maintained that stand during her cross-examination inasmuch as she further narrated that according to her son 'V', the occurrence took place at 7 p.m. on 15.02.2008.
96. Thereafter, 'V' was examined as P.W.-2. As to the time of occurrence, he indicated that the accused persons barged into his shelter after he alongwith his younger siblings had gone to sleep, again suggesting the time of the occurrence to be during night. Yet, during his examination-in-chief, he did not prove the date and time of the occurrence. However, he did prove his statement under Section 164 Cr.P.C., recorded on 24.08.2008. Thereby, he maintained his stand that the deceased 'S-1' was sexually assaulted and murdered during night hours which occurrence he saw in the light of an electric bulb and that his mother 'S' arrived the next morning i.e. well after the occurrence.
97. Consistent to that, during his cross-examination, he also described that the assailants had stayed for four hours. He maintained, that after the occurrence, he could not sleep through the night and that he alongwith his siblings stayed inside the shelter till their mother ('S') arrived. Yet, he claimed that his mother arrived one hour after the occurrence. That (later) part of his story is wholly unbelievable as another independent witness examined by the the defendant namely, Head Clerk K.G. Dubey (D.W.-5) unequivocally established that he had discovered the dead body of 'S-1' at about 5PM on 15.02.2008. He being a railway employee, there is nothing to doubt his stand as to that occurrence or to the further fact that around 15-50 had gathered at this place. No doubt emerged during his cross-examination by the prosecution.
98. Seen in that light, 'V' has offered mutually conflicted two versions of the date and time of the occurrence. One as disclosed by him in his statement recorded under Section 164 Cr.P.C. and as maintained during his examination-in-chief wherein he maintained that the occurrence was caused in the night hours and that his mother arrived the next morning. That is aligned to the finding of Dr. Pradeep Kumar Singh (P.W.-4) but it emerged more that months after the occurrence and well after the F.I.R. was lodged on facts as disclosed by him to 'S'. However, he maintained that second stand during his initial cross-examination as well, when he further described that the occurrence was caused by the accused persons between sunset and sunrise. For reason of that gross unexplained delay in recording that statement, we are unable to trust its truthfulness. The only reason to change the time of the occurrence appears to be the findings of the Autopsy Report.
99. At the same time, he also tried to maintain the second stand that the occurrence was caused one hour before his mother arrived on 15.02.2008. His mother 'S' undoubtedly arrived on 15.02.2008 after 7 P.M. That is not corroborated by medical evidence as o the time of occurrence.
100. Thus, the two stands taken by the solitary eye/child witness are mutually conflicted and cannot be reconciled. While the stand disclosed by him in his statement recorded under Section 164 Cr.P.C. would place the occurrence in the intervening night of 14/15.02.2008, the other would place the occurrence in the early evening of 15.02.2008. There would be a gap of about twelve hours in the twin eye witness account offered by 'V'. The conflicted stand taken by 'V' leads to a serious doubt as the F.I.R. was based on his version, only. That fact was consistently proven by the prosecution through 'S'.
101. The change of stand also appears to be under the influence of his mother 'S' who beginning from the FIR and ending at the trial maintained that the occurrence was caused sometime before she arrived at the Kanpur Central Railway Station by train in the evening of 15.02.2008. That stand she may have been compelled to maintain for reason of being the first informant. In any case, shifting of stand on her part would have lent a fatal blow to the prosecution story.
102. Yet, there is nothing to doubt the medical opinion rendered by Dr Pradeep Kumar Singh (PW-4) that the post mortem was conducted on 16.02.2008 at about 2:15 p.m. He is a prosecution witness. He is a prosecution witness. In that, he opined that the death of 'S-1' was caused one to one and half day earlier. Thus, death may have been caused either in the afternoon on 15.02.2008 or intervening night of 14/15.02.2008. Yet, he also appeared to state, that it was possible that death may have been caused at about 7:00 p.m. on 15.02.2008. That part of his statement he later clarified as wrong and further stated that death may have been caused between 8:00 p.m. on 14.02.2008 and 7:00 a.m. on 15.02.2008. In that he further clarified that he had wrongly mentioned the time 7:00 p.m. on 15.02.2008, earlier (as the time of death during his examination-in-chief. He clarified, it should read upto 7:00 a.m. on 15.02.2008.
103. Thus, the first version of the occurrence as narrated by 'V' to 'S', with respect to the time and date of the occurrence has not been proven by 'V' at the trial. It also does not find corroboration with the medical evidence. No attempt was made by the prosecution to either further examine P.W.-4 on that count or to reconcile the above discrepancy as to the date and time of the occurrence.
104. Keeping aside that doubt for the moment, we look at the substantive description of the occurrence as narrated by 'V'. During his statement recorded under Section 164 Cr.P.C. recorded two months after the occurrence, he named the accused Lambu, Vinay Kumar Singh, Amarnath, Pappu, Shadab Ahmed and 4-5 other unnamed accused. Thus, he named six accused persons and mentioned 4-5 others (unnamed). In all he described the accused to be 9-10 in numbers. This itself was a material improvement over the FIR version ostensibly based on his description only. Then, in the FIR Shadab Ahmed was not named and the number of accused persons was four named and four unnamed, totalling to eight.
105. Second, in that statement, he disclosed that Lambu had slapped him.
106. Third, he disclosed the occurrence of rape but he did not make any statement of any accused having stabbed the deceased Wireless('S-1') with a knife either on her private part or on her head. He only disclosed that 'S-1' was hit at the back of her head. Upto that stage, he did not specify the weapon of assault. We are mindful that the Investigation Officer had already recovered a blood stained piece of stone (later described as a piece of brick) from the place of occurrence. Yet, the solitary prosecution eye witness did not make any mention of assault carried out with that piece of blood stained stone/brick. He also did not specify any weapon that may have been used to cause that injury.
107. Fourth, at the trial during his examination-in-chief, he made a further improvement and now introduced Subhash also as one of the named accused persons. But reduced the number of accused to seven being Vinay Kumar Singh, Lambu, Amarnath, Subhash, Pappu, Shadab Ahmed and one unnamed person.
108. Fifth, further change of his stand disclosed in his statement recorded under Section 164 Cr.P.C. He now disclosed that he had been slapped by Vinay Kumar Singh (in place of Lambu).
109. Sixth, at this stage, he made further material improvement during his examination-in-chief and introduced two occurrences. One of the accused Amarnath having stabbed 'S-1' on her private parts with a knife and the accused Lambu having hammered a knife on the back of her head. Later, during his cross-examination he changed the role of Amarnath and described that the deceased ('S-1') had been assaulted on her private part with a knife by the accused Vinay Kumar Singh. Still later, he again changed his stand and again described that the deceased was assaulted with a knife on her private part and on her head by the accused Amarnath.
110. Seventh, at that late stage, he introduced a further fact that the accused Vinay Kumar Singh had gagged the deceased.
111. In the present facts, the statement made by 'V' that a knife had been stabbed in the private part and head of the deceased 'S-1' is wholly unbelievable. That injury was not alleged in the F.I.R. Absolutely no injury was noted on the private part of the deceased 'S-1' in the Autopsy Report. That injury was also not proven by Dr. Pradeep Kumar Singh (P.W.-4). To that extent, the prosecution allegation is completely unfounded. Not only the Autopsy Report and the evidence led by Dr Pradeep Kumar Singh (PW-4) did not support that prosecution allegation, but the Inquest also does not suggest or corroborate such fact asserted by 'V'. Consequently, we have no hesitation in recording my conclusion that the deceased 'S-1' had not received any knife injury on her private part.
112. As to the head injury, though it is true that there is a lacerated wound on the forehead of the deceased and there is a contusion injury on the temporal region, there is no lacerated or incised wound in the temporal region. Therefore, though the temporal bone of the deceased (S-1) was found fractured, we are not in a position to accept the prosecution story that the deceased (S-1) was assaulted with a knife on the back of her head as may have caused a fracture of the temporal bone.
113. Here, the prosecution story itself is riddled with doubts inasmuch as the Investigation Officer (Vinod Kumar Trivedi) himself proved recovery of blood stained piece of stone/brick from near the dead body of the deceased. It was not explained and its involvement was not described in the occurrence by the solitary eye-witness/child witness 'V' though the said Investigation Officer admitted that at the time of its recovery, the said blood stained stone/brick was suspected to be a weapon of assault. The admitted recovery of the said evidence and non-explanation by the prosecution may not exclude its involvement in the occurrence, keeping in mind the nature of injuries discovered during the autopsy examination. For ready reference, the same are extracted as below:
"1. Lacerated wound 2cm x 1cm x bone deep present over right side forehead just above eye-brow.
2. Multiple abrasions over an area of 4cm x 3cm over left side cheek.
3. Contused wound 7 cm x 5 cm over right side skull over temporal region just above ear pinna."
114. Thus, we do not find any corroboration of the ocular version offered by 'V', with the medical evidence with respect to the fatal injuries suffered by 'S-1'. Absolutely, no evidence was led by the prosecution through Dr. Pradeep Kumar Singh (PW-4) to establish either of those two stab injuries, one on the private part and the other at the back of the head of the deceased 'S-1'. Further, no corroboration of that injury described by 'V' may ever be claimed on the strength of the Inquest Report. Inquest Report is not a piece of substantive evidence. That part of the story emerged from the mouth of 'S', for the first time, at the trial. Thereafter, 'V' was examined. He parroted his mother 'S', unmindful of his earlier stand.
115. Thus, we are also not in a position to rely on the Inquest Report and we are unable to give credence to the oral testimony of 'V', in the facts and circumstances that have been discussed above to infer that fracture injury to two hand allegedly suffered by 'S-1' was duly proven.
116. It is equally false/untrue that 'V' was alone with his younger siblings staying with the dead body of 'S-1' up to the time (whenever that be), 'S' reached back from Delhi. Undeniably, 'S' may have arrived after 2005 hours on 15.02.2008 as the train on which she travelled reached Kanpur Central Railway Station at that time while the dead body of 'S-1' had been discovered by Head Clerk K.G. Dubey (D.W.-5) at about 5 PM on 15.02.2008, by which time a crowd of 15-50 had also gathered.
117. Seen in that light, we are mindful that 'V' also failed to correctly identify the accused persons in Court. He wrongly identified Amarnath as Lambu and Vinay Kumar Singh as Subhash, and he could not identify Kanhaiya. Clearly, he did not identify the accused correctly though according to him he knew Vinay Kumar Singh and Amarnath well enough, from before, he could not identify them in Court.
118. Applying the test as summarised by the Supreme Court in Balveer Singh (supra), in the first place, while as an appeal Court, this Court does not have the benefit to observe the demeanour of 'V' while his evidence was recorded, we have no hesitation to observe that his statement under Section 164 Cr.P.C. was first recorded with a wholly unexplained delay of more than two months. At that stage, the prosecution story was first attempted to be aligned to the Autopsy Report - as to date and time of occurrence. Yet, perhaps cleverly and in any case on purpose, the date and time of the occurrence were not specified. His fluctuating stand on vital aspects of date, time, identity and number of accused persons, nature of assault/occurrence, extent of assault are plural and wholly conflicted and/or inconsistent to the extent he has changed his stand on the vital aspects, more than once. To that extent, his statement does not inspire any confidence.
119. Though, the FIR was registered (manifestly), based on the facts disclosed by 'V', as is also clearly narrated in the FIR itself and as was consistently maintained by the first informant 'S' during the trial, the plurality specially as to the date and time of occurrence includes in it one set of date and time i.e. around 7 p.m. on 15.02.2008 as asserted by his mother 'S'. Though the charge framed against the accused-appellants was that, it was never proven. The prosecution, now appears to suggest that the occurrence was caused on 14.2.2008-15.02.2008, during that intervening night and not on 15.2.2008 at about 7 PM, as alleged (as per the charge framed).
120. It is also not disputed that 'S' was examined first. On the other hand, the statement of 'V' under Section 164 Cr.P.C. was not recorded immediately after the occurrence but after more than two months. Clearly, that statement may not be described as prompt and therefore, inherently natural. It appears to contain in it the seeds/artificial charge of material alteration of the prosecution story viz-a-viz the date and time of the occurrence.
121. In view of all the material improvements and material alterations and mutually conflicted stand, as have been discussed above, the statement of 'V' made at the trial may have been relevant upon only to the extent if any corroboration were found. To the extent there is corroborative material to establish presence of semen marks on the clothing of the deceased ('S-1') as was recovered, no definite conclusion may be drawn that the deceased had not suffered rape. Then even assuming that rape may have been committed on 'S-1' before she was done to death, it would merit consideration if the appellants were the persons who committed that heinous offence. Then, the evidence of 'V' is unreliable, for the reasons noted above. In view of the discussion made above, it is wholly doubtful, if he had seen the occurrence. If he had, there is absolutely no reason, why he would not have told his mother 'S' when he met her first that the occurrence had been caused on the intervening night of 14.02.2008 and 15.02.2008, as was proven at the trial.
122. Then, we have no reason to doubt the proof offered by Head Clerk, K.G. Dubey (D.W.-6). He is an independent witness. His status is that of a government servant being an employee of the Railways. He had no reason to cause any benefit to any of the accused persons. He also did not make any statement to doubt the presence of any of the accused persons at the time and place of occurrence. Thus, he had no personal interest in the matter. Yet, materially, he categorically proved that the dead body of the deceased 'S-1' was first discovered at 5 PM on 15.02.2008. The prosecution could not create any doubt in that statement made by that witness. Clearly, the dead body of 'S-1' had been discovered in unknown, in the absence of 'V'. That creates a further reasonable doubt. His statement also did not establish the presence of 'V' at that time. Also, he was not cross-examined by the prosecution to establish that fact.
123. Though not directly relevant but the Investigation Officer, Vinod Kumar Trivedi (PW-5) himself led conflicted evidence as to the time and place of arrest of the accused persons Vinay Kumar Singh, Amarnath, Santosh Kesarwani and Pappu Gupta. First, he claimed that those persons were arrested on 16.02.2008 from the Kanpur Central Railway Station, but later changed that stand and claimed (during his cross-examination) that that arrest was made from Taat Mill Crossing. Yet, he admitted that there was no arrest memo to support the fact of arrest of those accused persons, as claimed by the prosecution. Therefore, no independent witness existed to establish the fact of arrest of those accused persons. It was also admitted by the said Investigation Officer that the accused Vinay Kumar Singh was arrested with his Wireless set/Walkie Talkie. It is also not disputed to the prosecution that the accused Vinay Kumar Singh was arrested, in uniform.
124. Keeping all those facts in mind, it merits acceptance that Sub-Inspector Rajender Kumar Saxena (DW-4), also a government employee working with the RPF clearly proved that the accused Vinay Kumar Singh was on duty in the evening of 15.02.2008 when he was apprehended by the civil police authorities from the Kanpur Central Railway Station. There is no reason to doubt those facts proven on the strength of government records including entries in the General Diary maintained by the RPF. That evidence clearly indicates that the accused Vinay Kumar Singh was arrested on 15.02.2008 from the Kanpur Central Railway Station, while he was on duty in the circulating area/near the ticket window, on the Cantonment side of that Railway Station. That was also corroborated by Inspector, Satyendra Yadav of the RPF (DW-6), also a government employee. Neither during the cross-examination of Sub-Inspector Rajender Kumar Saxena (DW-4) nor during the cross-examination of Inspector, Satyendra Yadav (DW-6), any doubt emerged as to the facts proven by them that Vinay Kumar Singh was arrested from the Railway Station in the late evening/night on 15.02.2008.
125. If at all, part corroboration (to those facts) exists in the testimony of the Investigation Officer, Vinod Kumar Trivedi (PW-5) itself when he first stated that the accused Vinay Kumar Singh was arrested from the Railway Station. Absence of Arrest Memo and the absence of any independent witnesses to establish that arrest was made from a public place and further absence of any independent witness either to support the arrest or to support the recovery of clothes worn by those accused persons creates further reasonable doubt in the prosecution narration of those facts. We are unable to accept the prosecution story that the accused Vinay Kumar Singh was arrested on 16.02.2008 from the Taat Mill Crossing or that his clothing was recovered in the manner described. In fact in the entirety of the evidence received at the trial specially evidence led by government officials based on official records including General Diary of the RPF, it is clearly established on record that the said accused person was arrested on 15.02.2008 while he may have been on duty. We are mindful that during the cross-examination of the Investigation Officer, Vinod Kumar Trivedi (P.W.-5), he candidly stated that the changed clothes of the accused persons reached them through their relatives. In absence of any arrest memo and in absence of any material to establish that such occurrence took place, the prosecution version, to that extent is incredulous.
126. In that view and status of the evidence led by the prosecution, we further constrained to observe that the recovery of the clothing worn by the accused person namely, Vinay Kumar Singh, Amarnath, Santosh Kesarwani and Pappu Gupta at the time of their arrest is wholly doubtful. Therefore, we are unable to place reliance on that fact also.
127. Consequently, the presence of semen and blood marks on those clothings as opined by the FSL in its report, remains in the realm of serious doubt. How blood and/or semen marks may have arisen on those clothes may remain open for speculation. Suffice to note, once the arrest and the recovery of the clothing was not proved to have been made fully in accordance with the law and as narrated by way of a fact, and once serious doubts exist with respect to those facts as well, it would not be prudent to rely heavily on that evidence.
128. Here, we also note that the FSL report is not evidence that the semen and blood marks found on the clothing of the accused persons were traceable to any of the accused persons. No serological or DNA test report exists to establish the same. In view of the above, we are unable to bring myself to accept the prosecution story that the clothes of the accused persons were stained with their semen and the blood of the deceased 'S-1', at the time of their alleged recovery. To that extent, it has not been corroborated by the prosecution on the strength of evidence that rape was committed on 'S-1', by the present appellants. Fatally, that alleged adverse circumstance was not confronted to the appellants under Section 313 Cr.P.C.
129. Thus, the delay of two months in recording the statement under Section 164 Cr.P.C., the self-contradicted and in any case inconsistent statement of the occurrence offered by 'V' the solitary eye witness/child witness is not corroborated rather it is at variance if not completely contradicted by the other proven facts on record. 'V' being a child witness fell in the category of witness who may suffer tutoring and here by his mother 'S'. As noted above he is the only eyewitness of the occurrence, relied by the prosecution. Though no rule of procedure exists as may have dictated to the prosecution to first examine 'V' and later his mother 'S', yet, in view of the discussion made above, we cannot ignore to observe that the said child witness 'V', may have tried to reiterate what his mother 'S' first stated especially with respect to injuries that may have caused the death of 'S-1' stab injuries to the private part of 'S-1' and in maintaining that the occurrence was caused on 15.02.2008 at about 7 PM.
130. As to the version of 'S' and the motive for false implication, there pre-existed disputes between 'S' and her family on one hand and Vinay Kumar Singh a Constable of the RPF on the other, who was posted at the Kanpur Central Railway Station. That dispute was with respect to the conduct of business by her husband who was engaged in selling cooked food items on the Railway platform. The prosecution never established that the father of 'V' was engaged in a legal business. It is a matter of common knowledge that vendors can operate at railway property especially railway platforms only against valid licenses. No valid or other license was claimed or established by the prosecution. She specifically proved that the accused Vinay Kumar Singh had earlier assaulted her husbad and R.P.F. had lodged false cases against her attempts to lodge a departmental complaint against Vinay Kumar Singh, that failed. Last, she proved that he husband was arrested at the behest of the said Vinay Kumar Singh. Therefore, the defence suggestion that 'S' bore animus towards Vinay Kumar Singh for reason of his objecting to the continuance or conduct of illegal business by the husband of 'S' on the railway platform, merits acceptance.
131. Perhaps motivated by that perception of trouble caused to the means of livelihood of her family or for reasons not known to the Court, 'S' must have faced extreme trauma at loosing her daughter 'S-1' in such a heinous occurrence. Allegations may have emerged at her hands against a wide mix of persons who she may have perceived to have led to her plight.
132. To the extent only three injuries were noted in the Autopsy Report and to the extent that no other injury as described by 'S' and 'V' was not found during the autopsy examination and further keeping in mind the fact that the nature of stab injuries may never have been ignored, if they had existed, we further constrained to observe that the figment of imagination offered by 'S' during her examination has been parroted by her son/the child witness 'V', who came to be examined in Court, after her. Clearly, 'V' had been influenced completely by his mother, 'S'.
133. In the entirety of the facts as they exist on the strength of the evidence led, we are unable to separate and identify any part of the statement made by 'V' which may be described as untainted by tutoring and which may otherwise be of stellar or of such quality as may be trustworthy to sustain the conviction beyond reasonable doubt. Once his presence itself is doubtful, we find that the occurrence was not proven as caused by the present appellants. Neither as to the occurrence of rape by the appellants is established beyond reasonable doubt nor there is evidence to establish the presence of the surviving accused persons at the time and place of occurrence or the manner in which the occurrence of unnatural death had been caused to the deceased 'S-1', as narrated by the solitary eyewitness/child witness 'V'.
134. Also, the defence has indicated pre-existing disputes between the civil police of Police Station Rail Bazaar and RPF with respect to territorial jurisdiction. In that, it was further suggested by the defence that the civil police authorities were aggrieved with the RPF. While no positive fact finding may be recorded in that regard, the conduct of the Investigation Officer with respect to the arrest of Vinay Kumar Singh; recovery of the clothes worn by the accused at the time of their arrest; recovery of a country made firearm, allegedly at the pointing out by Vinay Kumar Singh (that was not shown to be involved in the occurrence), forces me to record my conclusion that the investigation was not fair or proper. There is a strong under-current or predisposition to implicate Vinay Kumar Singh, a Constable of the RPF who was on duty at the Kanpur Central Railway Station and with whom the first informant and her family (who may have been engaged in business of running an unauthorised food stall on that railway property), had a grouse in connection with the performance of his official duties. He may have been perceived by 'S' to have obstructed them from earning a living by selling food item at Railway Station.
135. In view of the foregoing discussion, both appeals must succeed. They are allowed (on behalf of the surviving accused persons namely Vinay Kumar Singh and Santosh Kesharwani Alias Lambu). The impugned order is set aside. The appellants are acquitted in absence of proof (beyond reasonable doubt), that they had either committed rape or had murdered 'S-1'. Since the appellants are on bail, they need not surrender. Their bail bonds are cancelled and sureties are discharged.
(S.D. Singh, J.) Per: Sandeep Jain,J. (dissenting)
1. I have gone through the draft judgment prepared by my learned Brother, Hon'ble S.D. Singh,J. I am not convinced with the reasoning, expressed by my Brother for acquitting the accused-appellants, hence this dissenting judgment.
2. For the sake of brevity, the facts and the evidence elaborated by my learned Brother are not being repeated.
3. Learned counsel for the appellants has raised doubts regarding the credibility of the testimony of minor witness 'V' (P.W.-2 at the trial) on the following grounds:
"i. No injury that could have been inflicted by a knife, was found on the head of 'S-1'.
ii. No injury, whatsoever was found on the private parts of 'S-1'.
iii. 'V' made an error in identifying the assailants in the Court.
iv. The time and date of the incident as narrated by 'S' (P.W.-1) and 'V' at the trial, do not match with the date and time of incident, mentioned in the First Information Report.
v. 'V' is a minor child witness who has given tutored testimony in the Court.
vi. There is no medical evidence of rape committed on 'S-1', as no injury was found on her private parts.
vii. No motive has been attributed to the accused for committing this crime."
4. Per contra, learned A.G.A. has submitted:
a. The presence of 'V' at the spot of the crime could not be doubted. He is a reliable witness whose testimony, despite some improvements, could not be rendered wholly unreliable and these improvements should not be considered.
b. 'V' stated in his evidence that 'S-1' was subjected to rape by the assailants.
c. It has to be kept in mind that 'V' is a minor, illiterate and rustic boy, who is not cognizant of time and date, as such his evidence should be appreciated considering these factors.
d. Semen found on the undergarments of the deceased and the accused, is a corroborative evidence of the rape committed on 'S-1'.
e. Blood found in the vaginal swab of the victim 'S-1' is also corroborative evidence of rape.
f. The doctor could not be absolutely sure about the time of death of the deceased. Further, opinion of the doctor is advisory, which can not overrule credible ocular evidence.
g. While six injuries were mentioned in the 'Panchayatnama' of deceased 'S-1', only three injuries were noted in her postmortem report. Doctor P.W.-4 has admitted in his cross-examination that the body was dissected by the sweeper and he viewed it from a distance of about five feet. Besides this, 'S-1' was not examined by a gynaecologist. In light of these facts, it has been argued, the doctor P.W.-4 has not diligently conducted the postmortem examination of 'S-1'. As such, his postmortem report can not override the ocular evidence of 'V' regarding offence of rape. The prosecution need not prove that the victim suffered injuries on her private parts during rape.
h. 'V' knew the accused prior to the incident, as such there is no possibility of false implication of the accused.
i.Since the father of 'V' was in jail and his mother 'S', was in Delhi, the First Information Report could not be lodged immediately after the crime, it was registered upon arrival of 'S', after 'S' was informed about the incident by her minor son 'V'.
j.The trial court has already acquitted three co-accused after trial, not believing testimony of 'V' regarding the involvement of acquitted accused.
k.'V' did not state in his testimony that the accused hit 'S-1' with a stone on her head, which resulted in her death.
l.The place of occurrence is undisputed.
m.After the incident, 'S-1' was found naked in a pool of blood, which corroborates the prosecution story of rape and murder.
n.If there is any discrepancy in the time of arrest of accused Vinay Kumar Singh, the prosecution story can not be doubted solely on that basis.
o.The testimony adduced by accused Vinay Kumar Singh in his defence only relates to his being on duty on 15.02.2008 between 4:00 p.m. and midnight, whereas the incident took place in the intervening night of 14/15.02.2008, regarding which no evidence of alibi was adduced by him during trial.
5. I have considered the rival submissions of the parties and perused the trial court record. From the evidence of 'S' (P.W.-1) at the trial, it is apparent that she was not an eye witness to the alleged incident. At the time of the incident, her husband was in jail and she had gone to Delhi to meet Minister and other railway officials to secure his release. When she returned on 15.02.2008 at about 8:00 p.m. by Gomti Express, her younger son 'V' (P.W.-2) informed her of the incident. Only then she became aware of the incident and, thereafter, she registered the First Information Report regarding the incident on 15.02.2008 at about 9:15 p.m. against the accused Vinay Kumar Singh, Amar Singh contractor, Lambu, Pappu and four other unknown labourers.
6. It is also evident that Dr. Pradeep Kumar Singh (P.W.-4) conducted the postmortem examination of the deceased 'S-1' on 16.02.2008 at about 2:15 p.m. Three injuries were noted by him- a bone-deep lacerated wound on the right side of the forehead, multiple abrasions over the left cheek and a contused wound on the right temporal region of the skull. Further, the right temporal bone of the deceased was found fractured. According to the doctor, 'S-1' died about one and a half days before the postmortem due to the ante-mortem head injury she sustained.
7. While a vaginal swab was taken from the deceased, it is not evident that a gynaecologist conducted an internal examination. Further, six injuries on the body of deceased 'S-1' were noted in the inquest report which was also proved by P.W.-8 as Ex.Ka.21 during trial. The injuries noted and proved are:
(i) Abrasion below left eye.
(ii) Left hand fractured from the elbow.
(iii) Visible injury on the palm of left hand.
(iv) Abrasion on the wrist and palm of right hand.
(v) Blood stain injury on the back of the head towards left side.
(vi) Bleeding from the nose.
8. The perusal of the inquest report and postmortem report of the deceased 'S-1' reveals clear contradictions. While the inquest report details six injuries on the body, the postmortem report only mentions three. There is no explanation why doctor P.W.-4 failed to notice all injuries mentioned in the inquest report, in his postmortem examination.
9. Further, the inquest report states that the left hand of the deceased was fractured from the elbow, but this fact has not been noticed by the doctor. In his cross-examination, P.W.-4 admitted that a sweeper dissected the body and conducted the postmortem examination and he merely observed it from a distance of three to four feet. He admitted that he had neither measured the depth of the bone-deep injury, despite it being in the temporal region, nor had he measured the length and breadth of the wound. It is also evident that P.W.-4 has also not mentioned the nature of the margins of the wounds in his report.
10. P.W.-4 admitted during cross-examination that blood was oozing from the nose and mouth of the deceased, which led him to estimate the time of death about 7:00 p.m. on 15.02.2008, in which there could be six hours variation on both ends. He opined that 'S-1' could have died at about 1:00 p.m. on 15.02.2008 or at about 1:00 a.m. on 16.02.2008. He also admitted that he had erroneously mentioned the duration of death to be one and a half years from the postmortem, which should have been one and a half days. He estimated the time of death on the basis of documents. P.W.-4 specifically testified that no incised wound was found on private parts of 'S-1'. He admitted that during investigation he was asked by the investigating officer, whether in this case, it is possible to commit rape by using condom, to which he had replied that if deceased was accustomed to sexual intercourse then, the possibility of committing rape on her by using condom, cannot be ruled out. He further admitted in cross-examination that since he estimated the duration of death to be 1 ½ days from the time of post mortem examination, 'S-1' could have died on the intervening night of 14/15.02.2008 at about 2:00 a.m, in which there could be variation of 6 hours on either end, and as such 'S-1' could have died between 8:00 a.m. on 15.02.2008 and 8:00 p.m. on 14.02.2008. He specifically stated that death of 'S-1' at 7:00 p.m. on 15.02.2008 was improbable. He further claimed that he had earlier erroneously mentioned the time of death in his examination-in-chief to be 7:00 p.m. on 15.02.2008, which should be read as 7:00 a.m. on 15.02.2008.
11. The Apex Court in the case of Dayal Singh and others vs. State of Uttaranchal (2012) 8 SCC 263, considering the lapses committed by the doctor while preparing the post mortem report, held as under:-
"34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the Judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a 'fair trial', the Court should leave no stone unturned to do justice and protect the interest of the society as well.
35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab(2003)12SCC155, the Court, while dealing with the discrepancies between ocular and medical evidence, held:
"8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out."
36. Where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
"34. ... The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert's opinion is accepted, it is not the opinion of the medical officer but that of the Court. { See Madan Gopal Kakkad v. Naval Dubey(1992)3SCC204 pp. 221-22, para 34.}.
37. Profitably, reference to the value of an expert in the eye of law can be assimilated as follows:
"The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence. If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert.
Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court such important facts as it otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on the cogency of reasons on which it is based." [See: Forensic Science in Criminal Investigation & Trial (Fourth Edition) by B.R. Sharma]
39. The Indian law on Expert Evidence does not proceed on any significantly different footing. The skill and experience of an expert is the ethos of his opinion, which itself should be reasoned and convincing. Not to say that no other view would be possible, but if the view of the expert has to find due weightage in the mind of the Court, it has to be well authored and convincing. Dr. C.N. Tewari was expected to prepare the post mortem report with appropriate reasoning and not leave everything to the imagination of the Court. He created a serious doubt as to the very cause of death of the deceased. His report apparently shows an absence of skill and experience and was, in fact, a deliberate attempt to disguise the investigation.
40. We really need not reiterate various judgments which have taken the view that the purpose of an expert opinion is primarily to assist the Court in arriving at a final conclusion. Such report is not binding upon the Court. The Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. Just to illustrate this point of view, in a given case, there may be two diametrically contradictory opinions of handwriting experts and both the opinions may be well reasoned. In such case, the Court has to critically examine the basis, reasoning, approach and experience of the expert to come to a conclusion as to which of the two reports can be safely relied upon by the Court. The assistance and value of expert opinion is indisputable, but there can be reports which are, ex facie, incorrect or deliberately so distorted as to render the entire prosecution case unbelievable. But if such eye-witnesses and other prosecution evidence are trustworthy, have credence and are consistent with the eye version given by the eye-witnesses, the Court will be well within its jurisdiction to discard the expert opinion. An expert report, duly proved, has its evidentiary value but such appreciation has to be within the limitations prescribed and with careful examination by the Court. A complete contradiction or inconsistency between the medical evidence and the ocular evidence on the one hand and the statement of the prosecution witnesses between themselves on the other, may result in seriously denting the case of the prosecution in its entirety but not otherwise.
41. Reverting to the case in hand, the Trial Court has rightly ignored the deliberate lapses of the investigating officer as well as the post mortem report prepared by Dr. C.N. Tewari. The consistent statement of the eye-witnesses which were fully supported and corroborated by other witnesses, and the investigation of the crime, including recovery of lathis, inquest report, recovery of the pagri of one of the accused from the place of occurrence, immediate lodging of FIR and the deceased succumbing to his injuries within a very short time, establish the case of the prosecution beyond reasonable doubt. These lapses on the part of PW3 and PW6 are a deliberate attempt on their part to prepare reports and documents in a designedly defective manner which would have prejudiced the case of the prosecution and resulted in the acquittal of the accused, but for the correct approach of the trial court to do justice and ensure that the guilty did not go scot-free. The evidence of the eye-witness which was reliable and worthy of credence has justifiably been relied upon by the court."
(emphasis supplied)
12. It is evident that P.W.-4 has not himself conducted the post-mortem of the deceased 'S-1'. The post-mortem was conducted in a casual and slipshod manner by a sweeper, which has been admitted by P.W.-4 during his cross-examination. Further, there is a serious contradiction between the injuries noted in the inquest report and those documented in the post-mortem report of the deceased 'S-1'. In such a situation, the question arises as to how the Court should appreciate the evidence of doctor in such cases. This matter has been extensively dealt with by the Apex Court in the case of Dayal Singh (supra), wherein it was held that such a post-mortem report is not binding upon the Court. The Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. It has been further held that where eye witnesses and other prosecution evidence are trustworthy have credence and are consistent with the version given by the eye witnesses, the Court will be well within its jurisdiction to discard the expert opinion. The law laid down by the Apex Court in the case of Dayal Singh (supra) is fully applicable in this case.
13. In view of the discussion made herein before, I am of the opinion that since the doctor P.W.-4 did not conduct the post-mortem examination himself and casually relied on the observations of the sweeper, the post-mortem report is not a wholly reliable document. Consequently, it cannot be given precedence over the ocular testimony of 'V'.
14. From the perusal of evidence of 'V', it is evident that he has given a consistent account of the incident in his examination-in-chief before the Court. He has been extensively cross-examined for several days, but nothing material has been elicited from him. However, in his examination-in-chief, he mentioned that accused Amar Nath inflicted a knife blow on the private parts of the deceased 'S-1' and also inflicted a knife wound on her head. 'V' further stated that accused Santosh Kesharwani @ Lambu hammered a knife on the back of skull of 'S-1'. These two specific facts- the knife blows allegedly inflicted by accused Amar Nath and Santosh Kesharwani @ Lambu, do not find mention in the previous statements made by 'V' under Sections 161 and 164 Cr.P.C. Further, since no incised wound was found on the body of 'S-1', the alleged injuries are also not corroborated by medical evidence. It is clear that 'V' has made improvements regarding these knife injuries in his testimony before the Court, but the question arises whether his entire testimony in the Court can be rejected solely on the basis of these improvements.
15. The Apex Court in the case of Mahendran vs. State of Tamil Nadu (2019) 5 SCC 67 while considering the maxim "falsus in uno, falsus in omnibus" , held as under:
"38. It is argued that, the prosecution has put on trial twenty-four accused, but presence of A-11 and A-16 to A-24 was doubted by the learned trial court and they were acquitted on benefit of doubt. Five accused, A-10, A-12, A-13, A-14 and A-15 have been granted benefit of doubt in appeal as well. The argument that the entire case set up is based on falsehood and thus is not reliable for conviction of the appellants, is not tenable. It is well settled that the maxim "falsus in uno, falsus in omnibus" has no application in India only for the reason that some part of the statement of the witness has not been accepted by the trial court or by the High Court. Such is the view taken by this Court in Gangadhar Behera's case(2002)8SCC381, wherein the Court held as under:-
"15. To the same effect is the decision in State of Punjab v. Jagir Singh and Lehna v. State of Haryana. Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of "falsus in uno, falsus in omnibus " (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno, falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno, falsus in omnibus " has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Ali v. State of U.P.) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. and Ugar Ahir v. State pf Bihar.) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. and Balaka Singh v. State of Punjab.) As observed by this Court in State of Rajasthan v. Kalki normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar. Accusations have been clearly established against the accused-appellants in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned."
39. Therefore, the entire testimony of the witnesses cannot be discarded only because, in certain aspects, part of the statement has not been believed.
42. All these judgments are in respect of appreciation of evidence of witnesses in the facts being examined by the Court. The general principle of appreciation of evidence is that even if some part of the evidence of witness is found to be false, the entire testimony of the witness cannot be discarded."
16. The Apex Court in the case of Ramesh Harijan vs. State of Uttar Pradesh (2012) 5 SCC 777 reiterating the principles on appreciation of evidence, held as under:
"26. In Balaka Singh v. State of Punjab [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of M.P. [(1952) 2 SCC 560 : AIR 1954 SC 15 : 1954 Cri LJ 230] and held as under : (Balaka Singh case [(1975) 4 SCC 511 : 1975 SCC (Cri) 601 : AIR 1975 SC 1962] , SCC p. 517, para 8) "8. ... the court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."
27. In Sukhdev Yadav v. State of Bihar [(2001) 8 SCC 86 : 2001 SCC (Cri) 1416 : AIR 2001 SC 3678] this Court held as under : (SCC p. 90, para 3) "3. It is indeed necessary, however, to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment--sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account."
28. A similar view has been reiterated in Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696] (SCC pp. 246-47, para 13) wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
29. In Sucha Singh v. State of Punjab [(2003) 7 SCC 643 : 2003 SCC (Cri) 1697 : AIR 2003 SC 3617] (SCC pp. 113-14, para 51) this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well."
17. The Apex Court in the case of Prem Prakash @ Lillu and Another vs. State of Haryana (2011) 11 SCC 687 while considering the principles on appreciation of evidence, held as under:
"19. The evidence, essentially, must be viewed collectively. The statement of a witness must be read as a whole. Reliance on a mere line in the statement of the witness, out of context, would not serve the ends of justice and the conclusion of the court based on such appreciation of evidence could be faulted."
18. From the perusal of the law laid down by the Apex Court in Mahendran (supra), Ramesh Harijan (supra) and Prem Prakash @ Lillu (supra), it is evident that the maxim "falsus in uno, falsus in omnibus" is not applicable in India. As such, the entire testimony of 'V' cannot be discarded solely because there are certain improvements in it. It is true that 'V' did not mention in his previous statement that a knife injury was inflicted on the private parts of 'S-1' and also on the back of her head, but he has specifically attributed those injuries to accused Amar Nath and Santosh Kesharwani @ Lambu in his testimony before the Court. It is also true that no incised wound has been found in the private parts of 'S-1'. However, a serious injury was found on the temporal region of the skull of the deceased 'S-1' and the underlying temporal bone was found fractured. In his examination-in-chief, P.W.-4 has admitted that it is possible to cause a lacerated injury on a bony part with a knife, which can also appear to be an incised wound. He has also admitted that if someone is hammered, then lacerated injury could be caused.
19. In view of this, the injury on the skull of the deceased 'S-1', being a bony part, could have been caused by a knife and may appear to be lacerated, which corroborates with the injury mentioned in the post-mortem report. Since the temporal bone of the deceased was found fractured, it corroborates the testimony of 'V' that head of 'S-1' was hammered. 'V' has also consistently maintained that 'S-1' was raped and assaulted by all the accused. The presence of 'V' has not been doubted. It is also evident that 'V' is a minor and illiterate witness, who was only about eight years old at the time of the incident. It is possible that he may have been tutored regarding that part of the evidence where he attributed specific knife injuries to the accused which were allegedly inflicted on the deceased 'S-1'. These specific injuries, however, have not been corroborated by the post-mortem report. As previously discussed, the post-mortem examination was conducted in a very casual manner, so it cannot be given precedence over ocular testimony of 'V'. In my view, the entire testimony of 'V' cannot be rejected solely due to some improvements made in his testimony.
20. So far as the identification of the accused persons is concerned, it is evident from the testimony of 'V' in Court that he has claimed that he can identify all the accused. He has identified accused Shadab in Court. He has identified accused Amarnath as Lambu. He has identified Vinay Singh as Subhash. He failed to identify Pappu but told that he was involved in the incident. He also failed to identify Kanhaiya but told that he was involved in the incident. All the accused persons who were present in Court on 05.05.2009 were claimed to be involved in the incident. At that time two other accused of some other case were standing in the dock, whom he correctly identified and told that they were not involved in the crime. Besides this, in the cross-examination he claimed that he knew the accused prior to the incident. In the cross examination he has admitted that after 8-9 days he forgets. He has specifically mentioned in the cross- examination on 08.07.2009 that he had identified accused Santosh @ Lambu, Pappu @ TV and Vinay Singh. Regarding accused, he has mentioned that the accused were not hiding their faces. In his previous statement under Section 164 Cr.P.C, he has mentioned that the hands of 'S-1' were tied, her mouth was gagged, her clothes were torn, she was disrobed and then all raped her. He has specifically mentioned that the accused laid on 'S-1'. In his evidence in Court 'V' has specifically mentioned that accused Vinay got hold of 'S-1', her hands were tied behind her back and all had committed rape with her, one by one. 'V' has mentioned in the Court that the head of 'S-1' was hammered from the back side, from which blood was coming. He has specifically mentioned that 'S-1' was murdered by the accused.
21. In cross examination he has stated that he took out the cloth from the mouth of 'S-1' after the incident, after the accused left, who had taken with them the rope which was used to tie the hands of 'S-1' behind her back. During cross-examination on 09.09.2009, 'V' was mislead that he had previously given statement in the Court that 'S-1' was stabbed by accused Vinay to which he has specifically denied. He has also stated in cross-examination that he had seen the house of all the accused but has not gone inside it. Previously, in his cross-examination on 05.06.2009, 'V' stated that 'S-1' was stabbed by accused Vinay which he subsequently denied in his cross examination on 09.09.2009. In his cross examination on 21.07.2009, 'V' mentioned that accused Pappu @ TV and Santosh @ Lambu stayed for four hours at the time of occurrence and during this period, accused Pappu @ TV had tied the hands of 'S-1'. He further stated that after the incident due to fear, he remained awake all night and confined his younger brothers and sisters in the room.
22. The testimony of 'V' inspires confidence except one or two minor improvements, which do not affect the core of the prosecution case, which should be discarded in the light of the law laid down by the Apex Court, in the above mentioned cases.
23. In view of this, the improvements made by 'V' in his testimony does not make him a wholly unreliable witness and the reliable part of his testimony can be relied upon by the prosecution.
24. The Apex Court in the case of Gosu Jayarami Reddy and Another vs. State of Andhra Pradesh (2011) 11 SCC 766 while considering evidence of witnesses, held as under:
"39. It is true that PW 1 has in his deposition attributed an injury to A-3 which according to the witness was inflicted on the neck of the deceased. It is also true that the post-mortem examination did not reveal any injury on the neck. But this discrepancy cannot (sic be vital) in the light of the evidence on record and the fact that it is not always easy for an eyewitness to a ghastly murder to register the precise number of injuries that were inflicted by the assailants and the part of the body on which the same were inflicted. A murderous assault is often a heart-rending spectacle in which even a witness wholly unconnected to the assailant or the victim may also get a feeling of revulsion at the gory sight involving merciless killing of a human being in cold blood. To expect from a witness who has gone through such a nightmarish experience, meticulous narration of who hit whom at what precise part of the body causing what kind of injury and leading to what kind of fractures or flow of how much blood, is to expect too much.
40. Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorised by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased on what part of the body there is some mix-up or confusion. It is the totality of the evidence on record and its credibility that would eventually determine whether the prosecution has proved the charge against the accused."
(emphasis supplied)
25. It is clear that 'V' has identified all the accused in the Court and during his testimony, given his tender age and memory, sometimes he has named accused Santosh Kesharwani @ Lambu as Amarnath or Pappu @ TV but that does not imply that those accused were not involved in the crime or he has given a false testimony, in the light of law laid down by the Apex Court in Gosu Jayarami Reddy (supra).
26. From the perusal of the FIR, it is evident that it was lodged by 'S' (P.W.-1 at the trial), according to which the incident occurred on 15.02.2008 at about 7:00 p.m. 'S' has mentioned in her examination-in-chief that incident took place on 15.02.2008. 'V', in his examination-in-chief, did not specify the exact time and date of the incident but indicated the incident happened when his father was in jail and his mother was away to secure his father's release. In his previous statement under Section 164 Cr.P.C., 'V' mentioned that the incident took place during the night. He informed his mother about the incident, involving the accused in raping and assaulting 'S-1', when she returned the next morning. During cross-examination, 'V' stated that being illiterate, he does not understand the meaning of "6:00 p.m." or "8:00 p.m." He recalled his mother leaving at dawn and returning on the second night after the incident. Despite his illiteracy, he could clearly see and hear. He testified that the accused arrived in the evening after dusk, with their faces uncovered. As he was unable to tell time, he can not tell when his mother returned. He also stated that no one came in the morning. He clarified that his mother had left at dawn and returned the same day at night. On the day of the incident, they had not eaten food. He witnessed the incident and raised alarm but no one heard him.
27. 'S' stated in her cross-examination that she had gone to Delhi with her son, two days prior to the indident, by train at 2:00 p.m. The train reached Delhi the next day at 6:00-7:00 a.m., she stayed in the night in Delhi on the footpath and left for Kanpur by Gomti Express at 1:00 p.m on the next day and reached Kanpur at 7:30-8:00 p.m.
28. The Apex Court in the case of Budh Singh vs. State of Madhya Pradesh (2007) 10 SCC 496, while considering the issue of time of death mentioned in the post mortem report, held as under:
" 14. It is now well settled that the lapse of time of taking place of death cannot be accurately stated.
15. In Amrit Singh v. State of Punjab [(2006) 12 SCC 79 : (2007) 2 SCC (Cri) 397 : AIR 2007 SC 132] it was held: (SCC p. 85, para 18) "18. ... Exact time as to when the occurrence took place is not known and it would be hazardous to make any guess in this behalf."
16. In Ramreddy Rajesh Khanna Reddy v. State of A.P. [(2006) 10 SCC 172 : (2006) 3 SCC (Cri) 512 : AIR 2006 SC 1656] this Court opined: (SCC pp. 179-80, paras 20-21) "20. In this case, the time of actual offence having regard to the different statements made by different witnesses may assume some importance as one of the grounds whereupon the High Court has based its judgment of conviction is the time of death of the deceased on the basis of the opinion rendered by Dr. P. Venkateshwarlu (PW 13).
21. In Modi's Medical Jurisprudence, 22nd Edn., as regards duration of rigor mortis, it is stated:
Average Minimum Maximum Hours Minutes Hours Minutes Hours Minutes Duration of rigor mortis 19 12 3 0 40 0 It was, therefore, extremely difficult to purport the exact time of death of the deceased, more so when no sufficient reason was assigned in the post-mortem report."
17. In Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626 : (2006) 8 Scale 440] this Court held: (SCC pp. 238-39, paras 36-38) "36. A contention was raised that autopsy surgeon opined that the death must have taken place 10 days prior to the post-mortem examination and in that view of the matter the prosecution case should be disbelieved. The murder allegedly took place on a boat. The dead body was thrown in the water. It remained under water for more than five days. Rigor mortis was absent and the body was fully decomposed. The soft tissues of some of the parts of the body had been eaten away by fish.
37. Medical science has not achieved such perfection so as to enable a medical practitioner to categorically state in regard to the exact time of death. In a case of this nature, it was difficult to pinpoint the exact time of death. The autopsy surgeon told about the approximate time-lag between the date of post-mortem examination and the likely date of death. He did not explain the basis for arriving at his opinion.
38. This Court on a number of occasions noticed that it may not be possible for a doctor to pinpoint the exact time of death."
18. In Baso Prasad v. State of Bihar [(2006) 13 SCC 65 : (2007) 2 SCC (Cri) 567 : (2006) 12 Scale 354] this Court observed: (SCC pp. 70 & 72, paras 19-20 & 22) "19. We may deal with the question as regards presence of rigor mortis.
20. In Modi's Textbook of Medical Jurisprudence and Toxicology, 21st Edn., at p. 171, it is stated:
'Rigor mortis generally occurs whilst the body is cooling. It is in no way connected with the nervous system, and it develops even in paralysed limbs, provided that the paralysed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.
22. The exact time of death, therefore, cannot be established scientifically and precisely, only because of presence of rigor mortis or in the absence of it."
(emphasis supplied)
29. The doctor P.W.-4 stated at one place in the postmortem report of 'S-1' that she died about one and a half years prior to the postmortem examination. This examination was conducted on 16.02.2008 at about 2:15 p.m. In his examination-in-chief, he clarified that 'S-1' had died about one and a half days prior to the postmortem, admitting in cross-examination, that he had erroneously mentioned the duration as one and a half years instead of one and a half days. Since 'S-1' was bleeding from nose and mouth, P.W.-4 estimated that 'S-1' died between 1:00 p.m. on 15.02.2008 and 1:00 a.m. on 16.02.2008. As per the law laid down by the Apex Court in the case of Budh Singh (Supra), the lapse of time of taking place of death cannot be accurately stated by the doctor conducting the post mortem examination.
30. In view of this, it is not binding on the Court to presume that 'S-1' died between 1:00 p.m. on 15.02.2008 and 07:00 p.m. on 15.02.2008.
31. From the evidence of 'V', it is clear that the incident occurred during the night when his mother 'S' was not present. He also stated that no one came in the morning and that his mother, who had left at dawn, returned the following night. From the evidence of 'S', it is evident that she left Kanpur by train on 13.02.2008 at about 1:00 p.m., reached Delhi in the morning of 14.02.2008, stayed on footpath in the night and boarded Gomti Express from Delhi to Kanpur on 15.02.2008 at 1:00 p.m., and she reached Kanpur at about 8:00 p.m. In light of this, evidence of 'V' proves that the incident took place during the intervening night of 14/15.02.2008. This timeline is further corroborated by the postmortem report, which estimates the death of 'S-1' to have occurred about one and a half days prior to the examination. Given that the postmortem was conducted on 16.02.2008 at 2:15 p.m., the duration mentioned in the report indicates the incident happened at about 2:00 a.m. on 15.02.2008.
32. It is surprising that despite initially mentioning the duration of death of 'S-1' as one and a half days, P.W.-4 subsequently stated in his examination-in-chief that 'S-1' could have died on 15.02.2008, at about 7:00 p.m. This inconsistency further highlights the manner in which P.W.-4 conducted postmortem examination of 'S-1', a fact also highlighted by his admission in cross-examination regarding the possibility of death of 'S-1' between 8:00 p.m. on 14.02.2008 and 8:00 a.m. on 15.02.2008. P.W.-4 has admitted in cross-examination that incident could not have occurred at 7:00 p.m. on 15.02.2008. Given that testimony of P.W.-4 is not entirely reliable and he cannot precisely determine the time of death of 'S-1', his evidence regarding the exact time of death of 'S-1' cannot be given precedence over the consistent testimony of 'V', according to which the incident took place in the intervening night of 14/15.02.2008.
33. In light of the aforementioned discrepancies, testimony of P.W.-4 concerning time of death of 'S-1' specifically that it could have occurred between 1:00 p.m. on 15.02.2008 and 1:00 a.m. on 16.02.2008 is deemed unreliable and is therefore liable to be discarded.
34. From the evidence of 'V', it is evident that he is a minor and illiterate boy, who was only about eight years old at the time of the incident. A boy of this tender age is not expected to give a graphic description of the rape committed by the accused persons on 'S-1'. In his testimony, he mentioned that the accused committed 'bura kam' with the deceased 'S-1'. In his previous statement under Section 164 Cr.P.C. which was proved in Court, he specified that clothes worn by 'S-1' were torn, she was disrobed and then all the accused committed rape on her with the accused lying over 'S-1'. The prosecution is neither bound to prove that injuries were necessarily caused to private parts of 'S-1' as a result of the rape, nor that semen was found in the vagina of 'S-1'. The law on the above subject is well-settled.
35. The Apex Court in the case of Dastagir Sab vs. State of Karnataka, (2004) 3 SCC 106, has held that absence of injuries in private parts would not rule out being subjected to rape.
36. The Apex Court in the case of Prithi Chand vs. State of Himachal Pradesh, AIR 1989 SC 702 and Narayanamma Vs. State of Karnataka, (1994) 5 SCC 728, has held that mere absence of spermatozoa in vaginal smear cannot cast a doubt on the correctness of the prosecution case.
37. 'V' has mentioned in his testimony in the Court that 'S-1' was subjected to rape by all the accused, one by one. The clothes found on the body of 'S-1' and the undergarments of the accused were sent for forensic examination to the Forensic Science Laboratory, Agra. It's report Ex.Ka.26 is on record, stating that human semen and spermatozoa were found on shorts (nekar) and frock worn by 'S-1'. Human semen and spermatozoa were also found on the underwear of accused Amarnath, Vinay Kumar Singh and Santosh Kesarwani alias Lambu. Human blood was also found on the underwear of these accused and on the shirts of accused Amarnath and Vinay and on the pants of accused Pappu alias T.V. for which the accused persons have provided no explanation. Further, human blood was found in the vaginal swab taken from 'S-1', but no spermatozoa were detected. From the evidence of 'V', it is proven that 'S-1' was disrobed and raped by the accused and when she resisted, she was brutally assaulted and murdered.
38. 'S' has mentioned in examination-in-chief, that she had seen the body of 'S-1', which was lying naked on the mat. In cross-examination, she stated that 'S-1' was heavily bleeding from below the waist, the blood was present on the mat and in the room. 'S-1' had teeth marks and several wounds on her body.
39. In view of the ocular evidence of 'V' and the corroborative evidence of semen present on shorts and frock worn by 'S-1' as well as on the undergarments of the accused and the corroborative evidence of 'S' regarding the condition in which the dead body of 'S-1' was found, it cannot be concluded that rape was not committed on 'S-1' prior to her murder. Further, since a gynaecologist was not present during post-mortem examination of 'S-1', the examination of her private parts was either omitted entirely or performed superficially by the sweeper on behalf of P.W.-4. Both P.W.-4 and the sweeper, were not competent to examine her internal private parts and the casual manner in which such examination was conducted, is prima facie evident, as no findings regarding pubic hair, the state of the hymen, cervix or uterus were mentioned in the post-mortem report. It is surprising that while no injuries on private parts of 'S-1' were noted in the post-mortem report, blood was found in her vaginal swab. This indicates that injuries to her private parts were either overlooked or not examined at all by the sweeper who conducted the post mortem examination on behalf of P.W.-4. In light of this discussion and the law laid down by the Apex Court in the case of Dastagir Sab (supra), absence of injuries on the private parts of the deceased are neither fatal nor do they conclusively prove that 'S-1' was not subjected to rape before her death. In my opinion, the prosecution has succeeded in proving that 'S-1' was subjected to rape by the accused before she was murdered.
40. Learned counsel for the appellants has submitted that there was no motive on the part of the appellants to commit this heinous offence. The prosecution has not attributed any motive to the appellants for committing this offence, as such, the prosecution story is doubtful.
41. The Apex Court in the case of Chandan vs. State (Delhi Admn.), (2024) 6 SCC 799, while considering motive in criminal cases, held as under:
"10. In Shivaji Genu Mohite v. State of Maharashtra [Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55] , it was held that it is a well-settled principle in criminal jurisprudence that when ocular testimony inspires the confidence of the court, the prosecution is not required to establish motive. Mere absence of motive would not impinge on the testimony of a reliable eyewitness. Motive is an important factor for consideration in a case of circumstantial evidence. But when there is direct eyewitness, motive is not significant. This is what was held : (SCC pp. 224-25, para 12) "In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy."
11. The principle that the lack or absence of motive is inconsequential when direct evidence establishes the crime has been reiterated by this Court in Bikau Pandey v. State of Bihar [Bikau Pandey v. State of Bihar, (2003) 12 SCC 616 : 2004 SCC (Cri) Supp 535] ; Rajagopal v. Muthupandi [Rajagopal v. Muthupandi, (2017) 11 SCC 120 : (2017) 3 SCC (Cri) 872] ; Yogesh Singh v. Mahabeer Singh [Yogesh Singh v. Mahabeer Singh, (2017) 11 SCC 195 : (2017) 4 SCC (Cri) 257] ."
42. The Apex Court in the case of Bipin Kumar Mondal vs. State of West Bengal, (2010) 12 SCC 91, while considering absence of motive in cases on direct ocular evidence, held as under:
" 24. It is settled legal proposition that even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance. (Vide Hari Shanker v. State of U.P. [(1996) 9 SCC 40 : 1996 SCC (Cri) 913] , Bikau Pandey v. State of Bihar [(2003) 12 SCC 616 : 2004 SCC (Cri) Supp 535] and Abu Thakir v. State of T.N. [(2010) 5 SCC 91 : (2010) 2 SCC (Cri) 1258] )
25. In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. (Vide Ujjagar Singh v. State of Punjab [(2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272] .)
26. While dealing with a similar issue, this Court in State of U.P. v. Kishanpal [(2008) 16 SCC 73] held as under : (SCC p. 88, para 39) "39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
43. The Apex Court in the cases of Chandan (supra) and Bipin Kumar Mondal (supra) has held that where the prosecution case is based on reliable eye witness testimony then there is no requirement on the part of the prosecution to prove the motive of the crime. Motive is only important in cases based on circumstantial evidence. Since the present case is based on the reliable testimony of 'V', as such, there is no requirement on the part of the prosecution to prove the motive of the offence. In view of the above, in my opinion, the prosecution is not required to prove the motive of the offence in this case.
44. Learned counsel for the appellants has submitted that from the spot of occurrence a piece of brick was recovered by the Investigating Officer PW-5, which has been proved by PW-5 in his examination-in-chief as the weapon used in committing the murder of 'S-1', which does not find mention in the testimony of 'V'. This contradiction makes the entire prosecution story doubtful.
45. From the perusal of the evidence of 'V', it is evident that he has nowhere mentioned that the accused inflicted brick blows on 'S-1'. Besides this, no suggestion in cross-examination has been given to 'V' that a piece of brick was found at the spot of occurrence and it was used as a weapon of offence to inflict injuries on the body of 'S-1'. It is true that the Investigating Officer (PW-5) has stated in his examination-in-chief that a piece of blood stained brick was found on the spot which was apparently used to inflict injury on 'S-1'. PW-5 has proved the recovery memo of this brick as Ex.Ka-8 and the brick as material Ex.3 during his testimony in the Court but has also admitted in cross- examination that it is not mentioned in the F.I.R. that the accused caused brick injuries to 'S-1'. Further he has feigned ignorance whether this piece of brick was used to murder 'S-1' or not. He has also admitted that 'V' had not told him that this piece of brick was used to murder 'S-1'. He has admitted that since a piece of brick was recovered from the spot, as such, he had stated that this was used as a weapon of offence. It is clear that 'V' who is a solitary eye witness of this incident, has not mentioned in his testimony that the accused used a piece of brick to inflict injuries to 'S-1'. As such, PW-5, who is not an eye witness of the incident, cannot prove that this piece of brick was used to inflict injuries to 'S-1'. In view of the above, if PW-5 has proved the above piece of brick as a weapon of offence, it does not make the prosecution story doubtful.
46. Learned counsel for the appellants has further submitted that according to P.W.-5 accused Vinay Kumar Singh was arrested on 16.02.2008 at 1:30 p.m. but according to the defence evidence he was arrested on duty in the night of 15/16.02.2008, which makes the whole prosecution story doubtful.
47. The Investigating Officer (PW-5) has specifically mentioned in his examination-in-chief that accused Amarnath, Vinay Kumar Singh, Santosh Kesharwani and Pappu Gupta were arrested from the railway station Kanpur on 16.02.2008 and has further mentioned in his cross-examination that accused Vinay Kumar Singh was arrested on 16.02.2008 at about 1:00 p.m. from near the Tat Mill Chauraha, which is about one and a half kilometer from Kanpur Central Railway Station. He has specifically denied that accused Vinay Kumar Singh was arrested from the railway station. He has further stated that there is a G.D. entry No.17 at 13:30 hours on 16.02.2008 regarding the detention of the above accused in the lock-up of the police station. The defence evidence led by accused Vinay Kumar Singh suggests that he was on duty, when he was taken away by the police on the night of 15/16.02.2008. It is true that there is some inconsistency regarding the time of arrest of accused Vinay Kumar Singh but this does not make the whole prosecution story unreliable because it is based on the reliable evidence of 'V'. After the arrest of Vinay Kumar Singh, a country-made weapon and two live cartridges of 315 bore were said to have been recovered at his instance, but that part of the prosecution evidence has not been relied by the trial court and consequently, the accused Vinay Kumar Singh has been acquitted under Section 25 of the Arms Act. In view of this, the whole prosecution case cannot be deemed doubtful merely on the basis of contradiction in the time of arrest of accused Vinay Kumar Singh.
48. Accused Vinay Kumar Singh also adduced defence evidence to support his plea of alibi. However, all the witnesses he examined only prove that he was on duty from 4:00 p.m. on 15.02.2008 till midnight and he remained present at the Kanpur Central Railway Station during this period. The incident also took place at Kanpur Central Railway Station and he was not at all, at a place from where it would have been impossible for him to commit the offence. Moreover, as discussed earlier, the incident occurred during the intervening night of 14/15.02.2008, and no evidence of alibi has been adduced for this specific period. In light of this, the defence evidence led by accused Vinay Kumar Singh is of no avail, and his innocence in the incident is not proven on this basis.
49. It has been vehemently argued by learned counsel for the appellants that accused Vinay Kumar Singh has been falsely implicated, because he prevented 'S', her husband and children from selling food products and water bottles on the Kanpur Central Railway platform, as they were unauthorized vendors. The defence suggests this led to his false implication in the case. However, in my opinion, no one would falsely implicate an innocent person in such a heinous crime while letting the real culprits to go scot free. In this case, 'V' is a reliable witness who clearly identified the accused in Court. Further, 'V' was well-acquainted with the convicted accused prior to the incident. Therefore, it cannot be assumed that the appellants have been falsely implicated in this case.
50. It is also evident that the trial court did not believe the testimony of 'V' regarding co-accused Sadab Ahmad @ Monu @ Morey, Kanhaiya and Vinod @ Pappu and as such acquitted them. This acquittal has not been challenged by the State. In my opinion, the trial court rightly believed the testimony of 'V' regarding accused Vinay Kumar Singh, Amar Nath Singh, Santosh Kesharwani @ Lambu and Pappu Gupta @ TV and it has also rightly convicted them for committing rape on 'S-1' and for her murder.
51. To sum it up, at the time of incident the father of 'V" was in jail and his mother 'S' was in Delhi, for securing the release of his father from jail and when 'S' returned to Kanpur on 15.02.2008 at about 8:00 p.m., then she was informed about the incident by 'V'. At the time of the incident, the solitary eye-witness 'V' was about eight years old. His presence at the spot is not doubted. He is a minor and illiterate witness, as such, his testimony has to be appreciated keeping in view the above facts. 'V' has consistently maintained that 'S-1' was assaulted, raped by all and when she resisted, she was brutally murdered. Assault injuries have been found on the body of 'S-1'. 'V' stated that head of S-1 was hammered, which is corroborated by the fracture of temporal bone, found in her post-mortem examination. It is also evident that there is contradiction regarding the number of injuries noted in the inquest report and the post-mortem report of 'S-1'. Since the post-mortem examination of 'S-1' was conducted by a sweeper, it is not safe to rely upon the post-mortem report, so far as the injuries noted therein is concerned. It is also evident that 'S-1' was not internally examined by the gynaecologist, as such, the finding regarding the absence of injuries on the private parts of 'S-1' is not reliable. The ocular evidence of 'V' proves that 'S-1' was raped before she was murdered. In this case the corroborative evidence of rape is present i.e. 'S-1' was found lying naked in a pool of blood, semen has been found on the clothes of 'S-1' and undergarments of accused and blood has been found in the vaginal swab of 'S-1'. It is settled law that neither presence of injuries on private parts nor presence of spermatozoa in vagina of victim are necessary for proving offence of rape. On the basis of some improvements, the entire testimony of 'V' cannot be rejected, since the core prosecution case is not affected by these improvements. Moreover, the maxim 'falsus in uno, falsus in omnibus' is not applicable in India. It is also proved from the testimony of 'V' that the incident took place in the intervening night of 14/15.02.2008. Since the post-mortem report is not reliable, hence, so far as the injuries noted in it is concerned, it has to be discarded, and it cannot override the ocular testimony of 'V'. It is also proved that a piece of brick found on the spot is not a weapon of offence. It is also proved that 'V' knew the accused prior to the incident and he has also identified them in the Court. The place of occurrence is undisputed. The defence evidence led by accused Vinay Kumar Singh does not prove his innocence. Since it is a case of direct evidence, the prosecution is not bound to prove the motive on the part of the accused, to commit the offence. In my view, the prosecution has successfully proved that 'S-1' was assaulted, raped and murdered by the accused persons.
52. In view of the above discussion, I am of the opinion that the prosecution has proved its case against the accused-appellants Vinay Kumar Singh and Santosh Kesharwani @ Lambu beyond reasonable doubt. Consequently, the trial court did not err in convicting them for offences under Sections 376 and 302/34 I.P.C. and sentencing them to suffer 10 years rigorous imprisonment (for rape) and rigorous life imprisonment (for murder) along with the fine. Accordingly, both the appeals are dismissed. The judgment and order of the trial court is affirmed.
53. The accused-appellants are on bail. They are directed to surrender before the trial court within a month to undergo the remaining part of their sentence, failing which the trial court is directed to adopt coercive measures for securing their presence.
(Sandeep Jain, J.) (By the Court)
1. The appeals were heard during the month of May, 2025 on various dates. Judgment was reserved on 29.5.2025.
2. Upon conclusion of hearing, both appellants Vinay Kumar Singh and Santosh Kesharwani @ Lambu were enlarged on bail, by separate order.
3. Thereafter, upon the first draft opinion framed by one of us (Hon'ble Saumitra Dayal Singh, J.), difference of opinion had emerged. It was discussed. In that regard, further order dated 04.07.2025 records the next date fixed for delivery of judgment, for today.
4. Upon the second draft opinion being circulated, one of us (Hon'ble Sandeep Jain, J.) conveyed his disagreement with the reasoning of acquittal. Hence, two separate opinions have been pronounced today.
5. In view of separate opinion expressed by one of us (Hon'ble Sandeep Jain, J.) completely disagreeing with the "reasoning of acquittal", expressed in the other opinion let the records be placed before Hon'ble the Chief Justice for formation of appropriate bench to resolve that difference of opinion.
6. Since the appellants are on bail in terms of the earlier order passed, they shall remain on bail during pendency of the appeal.
7. Sri Arun Kumar Shukla, learned Amicus Curiae appearing on behalf of the appellants has rendered his valuable assistance to the Court. He be paid Rs. 25,000/- each in the two appeals, towards his fee for the able assistance provided by him in hearing of the present appeals.
Order Date :- 14.7.2025
Prakhar/Abhilash/SA/Faraz/Jitendra/Himanshu/Anurag
(Sandeep Jain, J.) (S.D. Singh, J.)