Allahabad High Court
Parashu Ram vs State Of U.P. on 7 May, 2026
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:32849-DB
Reserved on 11.03.2026
Delivered on 07.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1608 of 2007
Parashu Ram
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Rishad Murtaza, Neeraj Sahu, Qazi Mohd Ahmad, S.H. Ibrahim
Counsel for Respondent(s)
:
G.A.
Along with :
1.
Criminal Appeal No. 1609 of 2007:
Nanhkau @ Jai Prakash
Versus
State of U.P.
HON'BLE ABDUL MOIN, J.
HON’BLE MRS. BABITA RANI, J.
(Per: Hon’ble Mrs. Babita Rani, J.)
1. This common order will dispose of the Criminal Appeal No. 1608/2007 titled Parashu Ram v. State of U.P. and Criminal Appeal No. 1609/2007 titled Nanhkau @ Jai Prakash v. State of U.P.
2. Heard Shri Qazi Mohd. Ahmad, learned Amicus Curiae appearing for the appellant and learned A.G.A. for the State-respondents.
3. Through these criminal appeals, the appellants seek acquittal by setting aside of the impugned order and judgement dated 02.06.2007 and 04.06.2007 passed by learned Additional Sessions Judge, Unnao, in Sessions Trial Number 658/2004 titled State v. Lallu and Others, police station Purva, whereby appellants, Parashu Ram and Nanhkau were held guilty and convicted under Section 302 read with Section 201 of the Indian Penal Code 1860 (hereinafter referred to as ‘IPC‘), whereas accused Lallu was acquitted of charges as framed against him.
4. The prosecution story as unfolded in brief is that on 19.09.2004, PW2 complainant Ramakant, who is the brother of the deceased Nisha, submitted an application to the police station concerned with the averments that marriage of his sister Nisha was solemnized with accused Nanhkau on 10.12.1997 but the conduct of the appellants towards his sister had not been good after the marriage and she was always subjected to beating and harassment on account of demand of motorcycle. Since the demand of motorcycle was not fulfilled, the accused committed her murder and threw the dead body in the well in the night of 16/17.9.2004. It is further averred that as he received information of death of her sister, he rushed to her matrimonial house and on being satisfied about the commission of offence, moved an application for registration of first information report.
5. On the receipt of information, a police party reached on the spot and brought out the dead body of deceased from the well. The dead body was identified to be that of Nisha and on the basis of the written complaint (Ex. Ka.1), a case was registered under Sections 304-B and 498-A IPC and section 3/4 of Dowery Prohibition Act and investigation commenced.
6. During investigation, statement of Ramakant, brother of deceased Nisha was recorded by the police. Statement of PW1 Ashish Pal, son of deceased and Nanhkau, was recorded by the investigating officer on 06.10.2004, who disclosed that his mother Nisha was strangulated by the appellants, and her dead body was thrown in the nearby well situated within the village. Statement of complainant was also recorded. The inquest report Ex. Ka.8 was prepared in the presence of panch witnesses nominated on the spot and the dead body was sent for the post-mortem to ascertain the actual cause of death. The post-mortem of deceased was conducted and it came out in the report that deceased died due to asphyxia arising out of the strangulation.
7. On 28.09.2004, the investigation was handed over to PW4, who on the basis of the age proof of the son of deceased, reached to the conclusion that at the time of occurrence, he was aged about nine years, and thus, an offence under Section 304B was not made out as the duration of marriage was more than 7 years and the offence was converted under Sections 302 and 201 of IPC.
8. On 02.10.2004, the investigation was handed over to PW5 Smt. Ghanesh Verma inspector, who recorded statement of complainant PW2 Ramakant and PW1 Ashish Pal and prepared the site plan Ex.5. On the basis of incriminating evidence of murder and disappearance of evidence of body of deceased, after completion of necessary and usual formalities, charge-sheet Ex. Ka.6, under Section 173 of the Code of Criminal Procedure, 1973 (‘CrPC‘) was presented in the court for trial against the appellants and co-accused Lallu for commission of offences punishable under Sections 302 and 201 of IPC. The concerned Magistrate committed the case for trial to the Court of Sessions. Charges were framed against the accused under Sections 304 B/498A, 302 and 201 of IPC to which they pleaded not guilty and claimed the trial.
9. To prove its case, the prosecution examined as many as nine witnesses and thereafter closed its evidence. The appellants and co-accused were examined under Section 313 of CrPC. They claimed themselves to be innocent and pleaded false implication. They were given opportunity to produce evidence in defence and accordingly Ram Swaroop as DW1 and Ram Kishan as DW2 were examined.
10. Upon appreciating the evidence produced on record and considering the contentions raised by both the sides, learned Additional Sessions Judge, Unnao acquitted co-accused Lallu of the charges as framed against him by extending benefit of doubt to him, whereas Parashu Ram and Nankau were held guilty and convicted for commission of offences punishable under Sections 302 and 201 of IPC. They were sentenced to undergo punishment for life and to pay a fine of ?3000 each under Section 302 and in default of payment of fine, to undergo imprisonment for one year. They were also sentenced to imprisonment under Section 201 of IPC for a period of one year and to pay a fine of ?1000 and in default of payment of fine, they were to undergo imprisonment for three months. It was ordered that both the sentences will run concurrently.
11. Aggrieved by the judgement and order of the conviction, the appellants filed the instant appeals. However, no appeal has been filed by the state or victim against the acquittal of co-accused Lallu.
12. Advancing the arguments on merits, it is submitted by learned counsel for appellants that the impugned judgement and order passed by learned Trial Court is illegal, unjust and improper, as no independent witness and cogent evidence has been produced by prosecution to bring the conviction of the appellants at home. Therefore, the impugned judgement deserves to be reversed and appellants deserve acquittal.
13. Further contention raised by the learned counsel is that the learned Trial Court committed an error in relying upon the evidence of the child witness. Learned counsel emphasised that PW1 Ashish Pal being child witness, is not a witness of reliable category and being of tender age of seven years at the time of deposition and five years at the time of alleged offence, is certainly not a witness whose evidence may be appreciated for convicting the appellants, as there is every reasonable likelihood and possibility of he being tutored by PW2, with whom he was residing immediately after the death of his mother. Furthermore, the acquittal of co-accused Lallu has been recorded by learned trial court on the basis of same facts and evidence and has not distinguished the role of co-accused to that of appellants, therefore, conviction of appellants is not sustainable in the eyes of law. Therefore, learned Trial Court committed grave error in ignoring the basic principle of criminal prudence regarding the child witnesses. Concluding the arguments, learned counsel for appellants submitted that the conviction recorded against the appellants under Sections 302 and 201 of IPC be converted into that of under Sections 304B and 498A of IPC.
14. Per contra, it was argued by learned Additional Government Advocate that appellants have committed the heinous offence of murdering a family member, namely Nisha, by strangulation and throwing her body into the well situated in the village nearby the house of the appellants, in order to eliminate the evidence of her killing. It is further submitted that the learned Trial Court has passed a reasoned and speaking order and has rightly convicted the appellants by relying on the evidence of sole son of deceased and appellant Nankau, who was present at the time of commission of the offence and witnessed the entire episode of killing. It is further submitted that the chain of circumstantial evidence connecting with each other is pointing out the unerring and irresistible conclusion that appellants only and none else have committed the offence and accordingly the learned Trial Court, while appreciating the facts and circumstances, rightly recorded the sentence against the appellants and there is no illegality, error and perversity in the judgement passed by learned Trial Court. Assailing the argument of conversion of sentence under section 302, 201 to that of section 304-B IPC, it was submitted that being a peculiar offence and in absence of ingredients of the offence under section 304-B, the conviction recorded for murder to dowry death would not be legally permissible.
15. With the above submissions, it is contended that the appeal filed by appellants deserves to be dismissed and judgement of conviction and sentence deserves to be affirmed.
16. Although the learned Amicus Curiae concluded his arguments by confining his prayer to conversion of the conviction under Section 302 to that of Section 304-B, we deem it apposite to also examine the issues raised in the Memo of Appeal which challenges the impugned judgment on the ground that the conviction has been wrongly recorded. Having heard the rival submissions advanced by learned counsels for the contesting parties, and having meticulously perused the record, the following issues, emerge for consideration and adjudication:-
A. Whether the conviction of appellants recorded under Sections 302 and 201 of IPC can be converted to that under Sections 304B and 498-A of IPC, as prayed?
B. Whether learned Trial Court has appreciated the evidence of child witness appropriately against the appellants?
C. Whether the findings and conclusion of learned Trial Court are perverse?
17. Before commencing to pen down an answer to the issue number (A), it is deemed apposite to refer to some significant statutory provisions and judicial precedents, which are germane to the present dispute. In the light of arguments of both parties and before going through the facts and circumstances of the case in hand, it would be profitable to reproduce section 304-B IPC herewith:-
“304B Dowry death.?
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.? For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
18. For attracting Section 304-B of IPC, the essential ingredients are as follows:
I. The death of a woman should have been caused by burns or bodily injuries or otherwise other than under normal circumstances.
II. Such a death should have occurred within seven years of her marriage.
III. There must be evidence to indicate that she had been subjected to cruelty or harassment by her husband or her relatives.
IV. Such cruelty or harassment should be for, or in connection with, demand for dowry.
V. There must be evidence to show that such harassment or cruelty had been meted out to the women soon before her death.
19. Section 113-B of the Indian Evidence Act, 1872 lays down the presumption as to dowry death. Section 113-B is reproduced herewith:
“113B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation. For the purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).”
20. Presumption under section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes an obligation for the court to raise a presumption that the accused caused the death. The presumption shall be raised only on the proof of following essentials number:-
A. The question before the court must be whether the accused has committed the dowry death of women.
B. There must be evidence to indicate that the woman was subjected to cruelty or harassment by her husband or his relatives.
C. Such cruelty or harassment must have been for, or in connection with, any demand for dowry.
D. Such cruelty or harassment was soon before her death.
21. In this context, reference with advantage may be made to the judgement of the Hon’ble Supreme Court in Kamlesh Panjiyar @ Kamlesh Panjiyar Vs. State of Bihar, 2005 (2) SCC 388 wherein the Hon’ble Supreme Court made the following observations:
“11. A conjoint reading of Section 113B of the Evidence Act and Section 304-B shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the presumption operates. Evidence in that regard has to be led by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live link between the effects of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
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14. The word “dowry” in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third “at any time” after the marriage. The third occasion may appear to be unending period. But the crucial words are “in connection with the marriage of the said parties”. Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression “dowry”. (See Satvir Singh v. State of Punjab, [2001] 8 SCC 633 As was observed in said case “suicidal death” of a married woman within seven years of her marriage is covered by the expression “death of a woman is caused ……or occurs otherwise than under normal circumstances” as expressed in Section 304-B IPC.”
22. In the case of Baijnath v. State of M.P. (2017) 1 SCC 101, the Hon’ble Supreme Court made the following observations:
“29. Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death. Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith.
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32. This Court while often dwelling on the scope and purport of Section 304-B of the Code and Section 113-B of the Act have propounded that the presumption is contingent on the fact that the prosecution first spell out the ingredients of the offence of Section 304-B as in Shindo v. State of Punjab [Shindo v. State of Punjab, (2011) 11 SCC 517 : (2011) 3 SCC (Cri) 394] and echoed in Rajeev Kumar v. State of Haryana [Rajeev Kumar v. State of Haryana, (2013) 16 SCC 640 : (2014) 6 SCC (Cri) 346] . In the latter pronouncement, this Court propounded that one of the essential ingredients of dowry death under Section 304-B of the Code is that the accused must have subjected the woman to cruelty in connection with demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under Section 113-B of the Act. It referred to with approval, the earlier decision of this Court in K. Prema S. Rao v. Yadla Srinivasa Rao [K. Prema S. Rao v. Yadla Srinivasa Rao, (2003) 1 SCC 217 : 2003 SCC (Cri) 271] to the effect that to attract the provision of Section 304-B of the Code, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment “in connection with the demand for dowry.”
23. The facts of the present case are to be analysed keeping in view of the aforesaid proposition of law.
24. In the backdrop of the case, PW2, brother of deceased corroborated the version of FIR regarding demand of motorcycle in dowry by the appellants and co-accused Lallu and causing harassment and torture of deceased Nisha on account of such dowry demand thereof. In cross-examination, he categorically stated that deceased was subjected to harassment and cruelty for demand of motorcycle by her husband Nanhkau. He further testified that when appellant Nanhkau came back from Mumbai and before death his sister, visited to his house, even at that time Nanhkau had expressed his desire for motorcycle to him. Though no specific date and occasion of demand of dowry has been given by this witness, yet evidence of PW2 regarding demand of motorcycle in dowry has not been rebutted by defence in cross examination and, what to say about cross examination, even no suggestion has been placed to the witness during his evidence.
25. PW5, the investigating officer, also deposed in his chief as well as cross-examination that Nisha was subjected to physical and mental cruelty by appellants. PW1, Ashish Pal son of deceased Nisha and appellant Nanhkau has also corroborated the fact of beating and harassment of deceased at the hands of appellants. He specifically stated that on the night of occurrence, his mother Nisha, was beaten by danda and then was strangulated by appellants. PW1 has not been put to any sort of cross examination as to where was the occasion and location for him to see the act of strangulation. Even no cross examination has been done to the witness regarding the room and source of light in which PW1 witnessed the aforesaid cruelty. This witness categorically stated that he did not raise noise being terrorized of incident. Thus, from the evidence of PW1, PW2 and PW5 it is established on record that deceased was subjected to physical cruelty till the date of her death and finally strangulated.
26. The dead body of deceased was found from a well situated in the village nearby the house of appellants and the same is not disputed by them. The cause of death was found to be strangulation and therefore, the fact of cruelty or harassment by the appellants and death otherwise than under a normal circumstance has been established. It has also been established on record that ingredients no. (i), (iii), (iv) and (v) as mentioned here-in-above have also been fulfilled and it has been proved that she was subjected to cruelty and harassment soon before her death in connection with demand of dowry.
27. So far as the issue of death of the wife within seven years of marriage is concerned, although the date of marriage of deceased with accused Nanhkau has not been mentioned in first information report, yet, PW2, while testifying before the court submitted the marriage card of the deceased and accused. It has been indicated therein that the marriage was solemnized on 10.12.1997. The date of marriage has not been denied by accused Nanhkau, rather he has admitted the same in his statement under Section 313 of CrPC. However, PW4, investigating officer testified that during the course of investigation, age of son of deceased, namely Ashish Pal PW1 was found nine years, two months and six days at the time of occurrence and therefore the incident was committed about nine years after the marriage of the deceased. He further stated that the age of PW1 Ashish Pal was verified by him from the school records, where the child was studying and due to this reason, the charges of offence under sections 304-B, 498A were converted to Sections 302, 201 of IPC.
28. In Muthu Kutty And Anr vs State By Inspector Of Police, Tamil Nadu; (2005) 9 SCC 113, the Hon’ble Supreme Court made the following observations:
“20. A reading of Section 304-B IPC and Section 113-B Evidence Act together makes it clear that law authorizes a presumption that the husband or any other relative of the husband has caused the death of a woman if she happens to die in circumstance not normal and that there was evidence to show that she was treated with cruelty or harassed before her death in connection with any demand for dowry. It, therefore, follows that the husband or the relative, as the case may be, need not be the actual or direct participant in the commission of the offence of death. For those that are direct participants in the commission of the offence of death there are already provisions incorporated in Sections 300, 302 and 304. The provisions contained in Section 304-B IPC and Section 113-B of the Evidence Act were incorporated on the anvil of the Dowry Prohibition (amendment) Act, 1984, the main object of which is to curb the evil of dowry in the society and to make it severely punitive in nature and not to extricate husbands or their relatives from the clutches of Section 302 IPC if they directly cause death. This conceptual difference was not kept in view by the Courts below. But that cannot bring any relief if the conviction is altered to Section 304 Part II. No prejudice is caused to the accused appellants as they were originally charged for offence punishable under Section 302 IPC along with Section 304-B IPC.
(Emphasis added by court)
29. It is pertinent to mention here that the although the appellants have not disputed the date of marriage, yet statement of PW4 has been corroborated by their own witness who has been examined as DW1 Ram Swaroop who testified categorically that at the time of commission of offence, PW1, Ashish Pal was around nine years of age and was studying in the village school. Therefore, both the prosecution as well defence witnesses have corroborated the fact that at the time of death, the age of PW1 was about nine years. It is not disputed on record that PW1 the only son of deceased and appellant Nankau was born out of this wedlock and if he was born out of the wedlock solemnized on 10.09.97, then how the son would be of nine years at the time of death of deceased on 17.09.2004. Reason behind admission of date of marriage by appellants might be to escape the liability for commission the offence of murder. In the given circumstances, the learned Trial Court rightly and legally observed that the death of deceased has not occurred within seven years of her marriage, and therefore, the ingredients of offence of Section 304B of IPC have not been attracted. Since the offence under section 304-B is a specific offence and has a separate embroidered fabric, the accused can be convicted only after fulfilment of all of its ingredients. Hence, we are of the view that the prayer of learned Amicus Curie appearing on behalf of appellants, to convert the sentence of Section 302 to that of Section 304-B, is not legally acceptable and hence the argument is rejected here by.
30. In the instant case, PW1 Ashish Pal son of deceased and accused Nanhkau, who is said to be aged about seven years at the time of recording of his testimony and was present in the house at the time of occurrence, is the sole eye account of the occurrence. Learned Trial Court, relying upon the sole testimony of PW1, coupled with other circumstances obseved that appellants only had committed murder of deceased Nisha on the fateful night. Now it is to be seen by us whether the evidence of this child witness is worthy to be relied upon to bring the conviction of accused at home. With regard to evidence of a child witness, it is relevant to mention here that there is no fixed age in statute below which the child witness will be treated as incompetent to give evidence. The rule of precaution is that the court must decide whether the child witness is intelligent enough to understand the questions and give rational answers.When the conviction is to be based on the evidence of a child witness, what should be nature of corroboration and to what extent there should be corroboration will depend upon the fact and circumstance of each case. However, if a person of tender years can satisfy those requirements, he can be treated as a competent witness.
31. In this regard, it is apposite to refer to the observations made by the Hon’ble Supreme Court in State of M.P. v. Balveer Singh (2025) 8 SCC 545, wherein the Hon’ble Supreme Court made the following observations:
“31. The Indian Evidence Act, 1872 (in short, the “Evidence Act“) does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease – whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
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43.From the above exposition of law, it is clear that the evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long the child is found to be competent to testify. The only precaution which the court should take while assessing the evidence of a child witness is that such witness must be a reliable one due to the susceptibility of children by their falling prey to tutoring. However, this in no manner means that the evidence of a child must be rejected outrightly at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection. While appreciating the testimony of a child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence. At the same time, one must be mindful that there is no rule requiring corroboration to the testimony of a child witness before any reliance is placed on it. The insistence of corroboration is only a measure of caution and prudence that the courts may exercise if deemed necessary in the peculiar facts and circumstances of the case.
44. In Ratansinh Dalsukhbhai Nayak (supra) this Court observed that 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. It added that 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. The relevant observation reads as under: –
8. The learned trial Judge has elaborately analysed the evidence of the eyewitness. There is no reason as to why she would falsely implicate the accused. Nothing has been brought on record to show that she or her father had any animosity so far as the accused is concerned. The prosecution has been able to bring home its accusations beyond the shadow of a doubt. Further, the trial court on careful examination was satisfied about the child’s capacity to understand and to give rational answers. That being the position, it cannot be said that the witness (PW 11) had no maturity to understand the import of the questions put or to give rational answers. This witness was cross-examined at length and in spite thereof she had described in detail the scenario implicating the accused to be the author of the crime. The answers given by the child witness would go to show that it was only repeating what somebody else asked her to say. The mere fact that the child was asked to say about the occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to tutoring and that she was deposing only as per tutoring what was not otherwise what she actually saw. The learned counsel for the accused- appellant has taken pains to point out certain discrepancies which are of very minor and trifle nature and in no way affect the credibility of the prosecution version.”
(emphasis supplied)
45. Similarly in State of M.P. v. Ramesh (2011) 4 SCC 786 it was held that even if the statement of a child witness is found to be tutored it can be relied upon, if the same is found to be believable or inspire confidence after separating the tutored part from the untutored portion. The relevant observation reads as under: –
“13. 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 part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.”
(Emphasis added by the Court)
32. Now we have to appreciate the credibility of evidence of PW1 in the light of guidelines laid down by Hon’ble Supreme Court mentioned hereinabove and arguments raised by learned defence counsel.
33. It is not disputed that accused Nanhkau was in Mumbai from last 6 – 7 months and had come back to his home soon before the occurrence. The medical evidence also establishes that the deceased had a pregnancy of about five months. The presence of appellants on the fateful night of occurrence is not disputed by them. The factum of deceased being lastly in company of accused Nanhkau and presence of PW1 in house is also not in dispute between the parties. Therefore, presence of PW1 in the house comes within the natural course of things and is established beyond doubt in absence of contrary.
34. Now we have to analyse as to whether PW1 had witnessed the occurrence or he made a tutored or coerced statement bringing the liability of appellants in commission of offence. It is worth while to mention here that before putting this child in the testimony in the trial against appellants and co-accused Lallu, learned Trial Court put him through several questions and upon being satisfied that PW1 had rational intelligentsia to understand the question and answer these question, a speaking and reasoned order was passed while permitting him to be examined as a witness. PW1, stated that the appellants assaulted his mother with danda and thereafter strangulated her. He further stated that earlier also on several occasions, appellants used to beat PW1 and his mother. He further stated that after committing her murder, the appellants threw her dead body in the well.
35. In cross-examination, he categorically stated that when his mother was killed, he was awake. On the query being made as to why he didn’t raise any noise, PW1 explained that had he raised noise, he would have been killed by the appellants too and due to that reason, he did not raise any voice. This witness kept on answering that he was directed by his father, not to tell anything to anyone and due to the terror and apprehension, he remained silent about the incident and did not disclose anything to anyone. This child further answered that, although he has come to the court to depose with his uncle, but he was not tutored to say anything regarding the evidence or incident. PW1 has been cross examined in detail by the defence, but nothing adverse could be brought in his evidence, which may suggest that this child of tender age has not deposed naturally, or in accordance of the occurrence, rather has made the tutored statement. It was also stated by PW1 that he would not go to his father as he would be killed in the same manner as his mother. The statement of PW1 shows that he was scared and terrorised of the incident so much so that he was not ready to go to his own house. It is worthwhile to mention that it would be the accused who had to produce the adverse evidence on record to prove that PW1 is a tutored and unreliable witness, in which they completely failed.
36. Another significant circumstance which needs to be mentioned at this juncture is statement of PW5 investigating officer Smt. Gyanesh Verma who deposed that on 06.10.2004, she recorded statement of PW1, in which he stated that the deceased was killed by the appellants and he saw the entire episode of crime. Though there is no dispute that his statement was recorded by the investigating officer after 18 days of incident, yet, this witness was not put to question requiring her to explain the reasons for the delay in recording of statement of PW1. In the same way, the first investigating officer PW4 was also not put in cross examination to explain the reasons for not recording the statement of PW1 immediately after the occurrence. In such circumstances, there is no reason or occasion to doubt the categoric and unblemished testimony of PW1 Ashish Pal and same was corroborated by the evidence of PW2 and PW5.
37. In Balveer Singh (supra), the Hon’ble Supreme Court had observed that:
“46. In the case at hand, the High Court held that the police statement of the child witness, Rani (PW6) under Section 161 of the Cr.P.C. had been recorded after a delay of more than 18-days, due to which the possibility of tutoring could not be ruled out, more particularly because PW6 at the time of recording of her statement was residing with PW3 i.e., the Complainant who was at inimical terms with the accused.
47. Indisputably the police statement of PW6 came to be recorded after 18-days of the incident. Although the police was well aware that she was a vital witness to the entire case and could guide the investigation in the right direction, yet to mechanically discard her testimony solely on the ground of delay alone was not warranted in the peculiar facts and circumstances of the case, particularly when no question in this regard was put to the IO so as to give him an opportunity to explain the reason for such delay.
48. In Ranbir & Ors. v. State of Punjab reported in (1973) 2 SCC 444 this Court observed that the factum of delayed examination of a witness ought to be specifically put to the IO so as to enable him to explain the reasons therefor. It further held that delay in examining a witness during investigation would be material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case.”
38. Therefore, in the given circumstances and discussion made hereinabove, the observation of learned Trial Court regarding the reliability, trustworthiness of the child witness has been rightly appreciated and is in consonance of attending circumstances.
39. Apart from the eye account of PW1, Ashish Pal, one more circumstance as pointed out by prosecution was the evidence of PW6 Dr. Rajesh Kumar Agrawal, The testimony of PW6 Dr Rajesh Kumar Agarwal, coupled with the post-mortem examination report proves that victim had sustained strangulation. PW6 deposed and proved postmortem report Ex.Ka.7 and found ligature mark 27 cm x 2 cm tranverse and continuous in neck low down between neck with thyroid base with soft tissue reddish and on cutting subcutaneous tissue is ecchymosis. Cause of death as given by PW6 was asphyxia due to strangulation, which was anti-mortem in nature and was sufficient to cause death in the ordinary course of nature. On being cross examined by appellants, he categorically stated that the ligature mark found on the deceased was below the middle of neck and in case of suicide by hanging, the ligature mark will not be continuous, rather will bear a glandular mark and that so above the thyroid gland. There will be no ecchymosis of subcutaneous tissue below the ligature mark and tissue will not be soft and reddish. This witness outrightly rejected the case not of suicide or jumping or falling into the well and only of strangulation and nothing else. The evidence of the independent and natural witness proved unblemished and unchallenged, therefore established to be in corroboration of evidence of PW1. The injury led to no other inference than that of homicidal in nature, and therefore the fact that that victim had died homicidal death due to strangulation stood proved.
40. The next question that groups up for consideration is conduct of appellants. PW2 testified that initially when he visited the matrimonial house of his sister around 16/17.09.2004 as to know her well being, then he was apprised that her sister had run away somewhere. He searched for her relentlessly and finally she could only be located from the foul smell coming out of the well. However, the above fact was not challenged by appellants in the cross examination. Therefore, the version of prosecution stands proved that initially the brother of deceased was misguided by the appellants regarding her missing, in order to disappear the signs and evidence of offence committed by them. Furthermore, from the evidence of PW1 and PW6, this fact also stands corroborated that killing was done on 16/17.09.2004. The FIR was lodged on 19.09.2004 by PW2 Ramakant, brother of deceased, but to a great surprise no effort was made by the appellants to trace her out and rather kept silent of such a heart breaking issue. Nothing is on record that he made frantic efforts to bring her back or lodged any missing report despite her gone missing. The conduct of appellants was unnatural and uncommon for any man of ordinary prudence and is sufficient to draw an adverse inference and to surface out the complicity of appellants in commission of offence.
41. Another adverse circumstance is the contradictory defence taken by the appellants. At a juncture, it was the case of appellants that the deceased being pregnant of five months inspite of appellant’s stay in Mumbai for last 6-7 months, led the complainant to murder her sister in order to save his honour, on the other hand the defence was offered that she was killed by the person with whom she had illicit relations and finally it got recorded by appellant Nankau that she committed suicide because she did not want him to go back to Mumbai. Therefore, the attending circumstances are apparent that appellants have taken contradictory and false versions which leads to adverse inference against them. The circumstances themselves in totality and conjointly speak volumes against appellants and adding series of chain one after another.
42. In this regard, it may be apposite to refer to the judgment of the Hon’ble Supreme Court in Joshinder Yadav v. State of Bihar, (2014) 4 SCC 42, wherein the Hon’ble Apex Court made the following observations:
“19. Pertinently, the post-mortem notes do not indicate presence of huge amount of water in the dead body. According to PW-12 Dr. Mandal, in a case of drowning, if immediate death is caused, then, there will be negligible quantum of water in the stomach. From the evidence of PW-12 Dr. Mandal, it appears that the death of Bindula Devi occurred immediately after she was drowned in the water because there was not much water in her stomach. It is also pertinent to note that Bindula Devi was pregnant. Her uterus contained full term dead male baby. She could not have, therefore, offered any resistance. It appears that, therefore, there were no injuries on the dead body. The whole operation appears to have been done swiftly and skillfully. But in any case, as stated hereinabove, it is not for the prosecution to explain in what manner Bindula Devi was done to death by the accused because Bindula Devi was staying in the house of the accused prior to the occurrence and she disappeared from that house. All the circumstances leading to her unnatural death were within the special and personal knowledge of the accused which they chose not to disclose. Instead, they gave a totally false explanation that when Bindula Devi had gone for bath, she slipped, got drowned in the water and died. This story is palpably false. The false explanation offered by the accused further strengthens the prosecution case as it becomes an additional link in the chain of circumstances.”
(Emphasis added by court)
43. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, the Hon’ble Supreme Court made the following observations:
“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions [1944 AC 315 (HL)]? quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh (2003) 11 SCC 271 : 2004 SCC (Cri) 135].) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
“(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.”
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
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22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with ‘khokhri’ and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.”
44. So far as the motive to commit the offence of murder by strangulation is concerned, it is established on record by the testimony of PW1 and PW2 with the corroborated testimony of PW5, Investigating Officer, that deceased was subjected to beating and physical assault by the appellants usually. Admittedly, deceased had a pregnancy of five months and accused Nanhkau was in Mumbai for last 6-7 months. Although the prosecution version is that she was killed because of not meeting out the demand of dowry of motorcycle and same was not established on record, however, it has also emerged on record that accused was suspecting of foul play on the deceased regarding her pregnancy. Since the motive is the circumstance which is always hidden in the mind of the wrong doer, and unless the motive has not been expressed by the accused directly or indirectly, the cogent evidence to prove such circumstance is near to impossible and it can be inferred only from the surrounding and attending circumstances. Therefore, it may be inferred that pregnancy in his absence may be the reason of strangulation of deceased in order to save his honour.
45. Thus, no other point that has been urged survives for consideration.
46. It can be seen that if the fact of probable and natural prosecution story, production of reliable and trustworthy evidence brought on record by the prosecution, coupled with other facts and circumstances, as discussed here in above, are put together, then an irresistible and inescapable conclusion can be drawn as to complicity of accused in the commission of offences for which they had been charged with. Having said that and for the reasons as discussed above, the judgement of conviction and order of sentence as passed by learned Trial Court as against the accused Nanhkau and Parashu Ram warrants no interference. Accordingly, the appeal filed by appellants is liable to be dismissed and it is ordered accordingly. All pending applications also stand disposed of.
47. The judgment and orders dated 02.06.2007 and 04.06.2007 passed by learned Trial Court against the accused Nanhkau and Parashu Ram are affirmed. The appellants are in jail. They shall serve out the sentence awarded to them under Section 302 read with Section 201 of the IPC.
48. Let the trial court record be remitted back to the trial court concerned forthwith.
49. For the assistance rendered by Shri Qazi Mohd. Ahmad, learned Amicus Curiae, we direct for payment towards his remuneration as per rules forthwith.
(Mrs. Babita Rani,J.) (Abdul Moin,J.)
May 7, 2026
S. Shivhare
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