Allahabad High Court
Surendra Kumar Verma vs State Of U.P. on 21 May, 2026
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
1. Criminal Appeal No. - 1139 of 2016
Surendra Kumar Verma ..Appellant(s)
Versus
State of U.P. ..Respondents(s)
Counsel for Appellant(s) : Syed Fazal Abbas Rizvi, Abdul Rafey Siddiqui, Akbar Siddiqui, Anand Dubey, Kamal Anwar Baig, Martand Pratap Singh, Rehan Ahmad Siddiqui
Counsel for Respondent(s) : Govt. Advocate
2. Criminal Appeal No. - 2175 of 2022
Smt. Pushpa ..Appellant(s)
Versus
State of U.P. Thru. Princ. Secy. Home, Lko. ..Respondents(s)
Counsel for Appellant(s) : Martand Pratap Singh, Anand Dubey, Jyoti Rajpoot, Pradeep Kumar Maurya, Priyanka Yadav, Rajesh Kumar Awasthi, Rajiv Mishra, Soniya Mishra, Soni Pathak
Counsel for Respondent(s) : G.A.
AFR
Court No. 09 Reserved on: 08.04.2026
Delivered on: 21.05.2026
HONBLE RAJESH SINGH CHAUHAN, J.
HONBLE ZAFEER AHMAD, J.
( Per: Zafeer Ahmad, J. )
1. Heard Sri Anand Dubey and Ms. Jyoti Rajpoot, learned counsel for the appellants and Ms. Charu Singh, learned A.G.A for the State. Perused the records.
2. The aforesaid criminal appeals arise out of judgment and order dated 16.07.2016, passed by the learned Additional Sessions Judge, Court No. 1, Ambedkar Nagar, passed in Session Trial No. 201 of 2010 (State v. Pushpa & Surendra Kumar Verma), arising out of case crime no. 921 of 2010, police station Kotwali Akbarpur, District Ambedkar Nagar, whereby the appellants have been convicted to undergo life imprisonment along with a fine of Rs. 10,000/- each under Section 302 r/w Section 34 of Indian Penal Code, 1860 (in short I.P.C.) and in default of payment of fine, an additional imprisonment of six months, further the appellants have been convicted under Section 201 IPC to undergo imprisonment for five year along with a fine of Rs. 5,000/- each and in default of payment of fine, an additional imprisonment of three months.
3. Since the aforesaid criminal appeals arise out of a common judgment and order dated 16.07.2016, as such same have been heard together and decided by a common order.
Prosecution Story in Nutshell:
4. The prosecution story, in brief, is that the complainant, Jagdish Yadav, r/o village Gohna, Police Station Kotwali Akbarpur, District Ambedkar Nagar, was employed in a textile mill at Delhi, while his children and wife Pushpa Devi were residing separately in the village. On 10.09.2010, the informant received information through telephone that his daughter Priya, aged about 8 years, and son Shani, aged about 3 years, had been found dead inside a well in the village. Upon reaching the village, he came to know that his wife had developed illicit relations with co-accused Surendra Kumar Verma, s/o Munshi Ram Verma, and that his daughter Priya had allegedly seen them in a compromising position and threatened to disclose the same. It is alleged that on account thereof, Pushpa Devi and Surendra Kumar Verma, in furtherance of their common intention, threw both the children into the well and thereafter Pushpa also jumped into the well in an attempt to conceal the occurrence. It was further alleged that villagers had seen Pushpa Devi along with Surendra Kumar Verma near the well during the night/morning of the incident.
5. On the basis of the written report, an F.I.R. was registered under Section 302 and 201 I.P.C against the appellants. The investigation of the case was entrusted to Kamal Kumar Singh, who proceeded to the place of occurrence on 10.09.2010 and conducted the inquest proceedings.
6. Upon completion of investigation, charge-sheet was submitted against the accused-appellant under Section 302 and 201 IPC. Thereafter, the case was committed to the Court of Session, where charge under Section 302 r/w 34 and 201 IPC was framed against the appellants. Both the accused denied the charge, pleaded not guilty, and claimed trial.
7. In order to prove its case, the prosecution examined Jagdish yadav (PW-1), Ram Teerath Yadav (PW-2), Hriday Ram Yadav (PW-3), Suresh (PW-4), Ram Prasad Yadav (PW-5), Dr. Dhirendra (PW-6), S.I. Vimal Kumar Singh (PW-7), and Ram Karan Nishad (PW-8).
8. In defence, the accused-appellants relied upon the charge-sheet in NCR No. 185 of 2004 (Ext. Kha-1) and the application filed under Section 155(2) Code of Criminal Procedure, 1973 (in short Cr.P.C.) (Ext. Kha-2).
9. The following exhibits were produced and proved, by prosecution, before the Trial Court:
Exhibit No. Particulars/Item
Ext. Ka -1 Written Report
Ext. Ka -2 Recovery Memo of Torch
Ext. Ka -3 Post-mortem report of Priya
Ext. Ka-4 Post-mortem report of Shani
Ext. Ka-5 Site Plan
Ext. Ka-6 Charge-Sheet
Ext. Ka-7 Check FIR
Ext. Ka-8 Carbon Copy of GD
Ext. Ka-9 Police Form No. 13 for dead body of Priya
Ext. Ka-10 Police Form No. 13 for dead body of Shani
Ext. Ka-11 Sample Seal
Ext. Ka-12 Sketch of dead body of Shani
Ext. Ka-13 Challan Lash of dead body of Shani
Ext. Ka-14 Letter to CMO
Ext. Ka-15 Sample Seal
Ext. Ka-16 Sketch of dead body of Priya
Ext. Ka-17 Challan lash of dead body of Priya
10. The following exhibits were produced and proved, by defence, before the Trial Court:
Exhibit No. Particulars/Item
Ext. Kha -1 Charge-sheet in NCR No. 185 of 2004
Ext. Kha -2 Application filed under Section 155(2) Cr.P.C.
11. The following material exhibits were produced and proved before the Trial Court:
Material Exhibit Number Particulars/Item
Material Exhibit-1 Photograph of well
Material Exhibit-2 Photograph of well
12. The statements of the accused-appellants were recorded under Section 313 of the Code of Criminal Procedure, wherein accused-appellant Surendra Kumar Verma denied the prosecution allegations in toto and stated that the prosecution witnesses had deposed falsely before the Court. He further stated that the Investigating Officer, after conducting a biased and false investigation, had submitted a false charge-sheet against him. The accused-appellant also denied having any illicit relationship with co-accused Pushpa and asserted that, owing to enmity arising out of pending legal disputes, he had been falsely implicated in the present case. He further stated that he had no knowledge as to how the children died. Accused-appellant Pushpa, in her statement recorded under Section 313 Cr.P.C., also denied the prosecution case and stated that she had been falsely implicated on account of the alleged illicit relationship with accused Surendra Kumar Verma. She further stated that it was Surendra Kumar Verma who had killed her children and thrown them into the well, and that she had jumped into the well in an attempt to save them.
Submissions made by learned Amicus Curiae for the accused-appellant:-
13. Learned counsel for the accused-appellants submitted that the impugned judgment and order of conviction is contrary to law and evidence available on record. It has been argued that the present case is based entirely upon circumstantial evidence, however the prosecution has failed to establish a complete chain of incriminating circumstances as required in law. It has further been submitted that there was unexplained delay in lodging of the FIR and the prosecution story underwent material improvements during the intervening period. Learned counsel also questioned the reliability of the alleged extra-judicial confession and submitted that the same suffers from material contradictions and was not put to accused Pushpa under Section 313 Cr.P.C. Learned counsel further submitted that motive, last-seen circumstance and involvement of co-accused Surendra Verma have not been proved by reliable evidence. It has also been argued that the medical evidence does not conclusively establish homicidal death and possibility of accidental drowning has not been ruled out. It has also been submitted that Section 106 of the Evidence Act cannot be invoked to cure deficiencies in the prosecution case and the accused-appellants are entitled to benefit of doubt.
Submissions made by learned A.G.A : –
14. Per contra, learned A.G.A. supported the impugned judgment and submitted that the learned Trial Court has rightly appreciated the oral and documentary evidence available on record. It has been submitted that the prosecution successfully proved motive, extra-judicial confession and surrounding circumstances connecting the accused-appellants with the crime. Learned A.G.A. further submitted that accused Pushpa was found inside the well along with the deceased children and failed to furnish satisfactory explanation regarding the circumstances in which the children died, thereby attracting Section 106 of the Evidence Act. It has also been argued that minor contradictions in testimonies of prosecution witnesses are natural in nature and do not affect the core of the prosecution case. Accordingly, it has been submitted that the prosecution has proved its case beyond reasonable doubt and no interference is warranted with the impugned judgment and order.
Oral Testimonies:
In order to appreciate the issues arising in the present appeal, it is appropriate to examine, in brief, the oral evidence adduced by the prosecution.
15. PW-1 Jagnish Yadav, husband of accused Pushpa, deposed that he was working in Delhi at the time of occurrence and was informed telephonically by his father on 10.09.2010 that his daughter Priya aged about 8 years and son Shani aged about 3 years had died after falling into a well. He further deposed that co-accused Surendra belonged to his village and used to visit and talk to his wife, although he had objected the same on several occasion. Upon returning to the village, when he initially made inquiry from his wife, who told him that both the children had gone for easing themselves and accidentally fell into well. He further deposed that the said well is situated at some distance from his house and, therefore, he found the explanation doubtful, particularly because it was night time and the children could not have gone so far on their own. Upon making further inquiry from villagers, he came to know that after his departure to Delhi, accused Pushpa had developed illicit relation with co-accused Surendra and that Surendra used to visit his wife during night hours. He further deposed that on third day after the incident he took Pushpa into confidence and questioned her regarding the death of the children, whereupon she started weeping and confessed that on the date of occurrence, Priya had seen them in compromising condition and threatened to disclose the same to others, upon which Surendra suggested that both the children be eliminated. Thereafter, both the accused persons allegedly conspired to eliminate the children. In furtherance of their common intention, accused Surendra picked up Priya, while accused Pushpa took Shani, and both proceeded towards the nearby well. Further, Surendra threw both Priya and Shani into the well and thereafter went to the house of Pushpa to bring a torch. Upon returning, he noticed that Priya was still alive and standing inside the well, as the water level therein was only about two feet. By that time, Shani had already drowned. Accused Surendra then stated to Pushpa that in the event Priya survived, the entire incident would be disclosed. Thereupon, Pushpa herself jumped into the well, caught hold of Priya by her hair and forcibly submerged her in water, thereby causing her death. Thereafter, Surendra threw the torch into the well and fled from the place of occurrence, whereas Pushpa remained inside the well. The witness further deposed that on the following morning, accused Pushpa raised alarm from inside the well, whereupon the villagers and family members arrived at the spot, rescued her, and recovered the dead bodies of both the children from the well. On the basis of the disclosure allegedly made by accused Pushpa, the informant lodged the written report, which was verified and proved by him as Ext. Ka-1.
16. During cross-examination, he admitted that he had not personally witnessed the occurrence and that he was residing in Delhi at the relevant time. He further admitted that the report was lodged on the basis of information allegedly received from his wife and villagers after his return from Delhi. He also admitted previous enmity and litigation between his family and the family of co-accused Surendra Verma. The witness, however, denied the suggestion that due to such enmity, the accused persons had been falsely implicated. He further deposed that the well is situated towards the eastern side of the village and at the relevant time there was about 2 to 3 feet water in the said well. He further admitted that the FIR came to be lodged on the third day of the occurrence. He further deposed that Pushpa was his third wife and he had no suspicion regarding her conduct prior to the incident. He further denied the suggestion that no such occurrence had taken place on the manner alleged by the prosecution.
17. PW-2 Ram Teerath Yadav, elder brother of Jagdish Yadav, deposed that informant had been residing separately prior to the occurrence. He further deposed that on the date of the incident, Jagdish was not present at his house and was working as a labourer in Delhi. He further deposed that the dead bodies of the children were recovered from a well situated approximately 700 meters towards the east of the village. He further deposed that at about 6:00 A.M., Chandrabhan telephonically informed Hriday Ram, the younger brother of the witness, that Pushpa had fallen into the well. Thereafter, the witness along with several villagers proceeded to the spot and noticed a torch switched on inside the well. He further deposed that Pushpa was seen standing in the water while holding the body of Shani in her lap. Thereafter, with the aid of a rope and ladder, the villagers descended into the well and brought out Pushpa along with the dead bodies of both the children. He further deposed that upon being questioned, Pushpa informed them that both the children had gone there to ease themselves and accidentally fell into the well, whereupon she also jumped into the well in an attempt to save them, but failed. He further deposed that his father was the first person to inform the police regarding the incident. He further deposed that he had never seen accused Surendra visiting or leaving the house of Jagdish and Pushpa. He further deposed Jagdish returned on the next day after the occurrence. He further deposed that he was unaware of any conversation that had taken place between Jagdish and Pushpa regarding the incident and that he himself had no such discussion with Jagdish. At this stage, the witness was declared hostile before the trial court.
18. During cross-examination, he deposed that there was no toilet in the house of Jagdish and, therefore, the family members used to go outside for easing themselves. He further deposed that Shani, aged about two and a half years, was unable to walk properly and generally crawled on his knees. He further deposed that the house of Jagdish was situated at a distance of about 5060 meters from the house of Surendra. He denied having seen Surendra visiting Pushpa. He further deposed that he was unaware of what Pushpa had told Jagdish regarding the occurrence, though he admitted that Pushpa had narrated the incident to Jagdish. He further deposed that Surendra did not come to the place of occurrence. He denied the suggestion that he had colluded with the accused persons and was deposing falsely. He further deposed that litigation was pending between the families of Jagdish and Surendra and, on account thereof, the family members of Surendra did not come to the place of occurrence. He further deposed that he had neither heard nor was aware of any conversation which had taken place between Jagdish and Pushpa in relation to the incident
19. PW-3 Hriday Ram Yadav, brother of Jagdish Yadav, deposed that on the morning following the occurrence he received information from village resident Chandrabhan that accused Pushpa had fallen into the village well. Upon reaching the spot, he found Pushpa standing in water inside the well while the bodies of deceased children Priya and Shani were recovered therefrom with the help of villagers. He further deposed that two days after the occurrence, Jagdish Yadav returned from Delhi and when he questioned Pushpa regarding the occurrence, she disclosed before family members that she had developed illicit relations with co-accused Surendra Verma and that on the intervening night of 09/10.09.2010, deceased Priya had seen them in a compromising position and threatened to disclose the same, whereafter, both children were thrown into the well.
20. During cross-examination, he admitted that prior disputes and litigations existed between the family of accused Surendra Verma and the family of the informant in relation to a quarrel concerning water from a hand-pump, due to which relations between the families were strained. He further admitted that he had not personally witnessed the occurrence and that Pushpa had initially informed villagers that the children accidentally fell into the well while going for easing themselves and that she entered the well in an attempt to save them. He deposed that the informant Jagdish Yadav reached the village from Delhi, two days after the occurrence and the FIR was thereafter lodged. He further deposed that the deceased childrens bodies were recovered from a well situated near bushes and open fields where villagers generally went to ease themselves, and admitted that Pushpas house had no toilet facility. He further deposed that although he had heard allegations regarding illicit relations between Pushpa and Surendra Verma, he had never personally seen them together in any compromising situation. He denied the suggestion that due to prior enmity and suspicion, a false case had been fabricated against the accused persons.
21. PW-4 Suresh Chandra, deposed that Priya, aged about 8 years, and Shani, aged about 3 years, were murdered on 10.09.2010. He further deposed that the panchayatnama of the dead bodies of both the children was prepared at about 11:00 A.M. in the presence of Inspector Ram Prasad Verma, Ram Jag Yadav, Ram Ji Yadav and Pushpa Devi. He further deposed that the dead bodies were recovered from a well overgrown with bushes, situated about 500600 meters towards the east of the village. He further deposed that on 13.09.2010, the Investigating Officer recovered a red three-cell torch having a black thread tied to it from the said well. He verified and proved the recovery memo of the torch before the Trial Court, which was marked as Ext. Ka-2. He further deposed that the Investigating Officer had also taken photographs of the said well, which were marked as Material Exts. 1 and 2.
22. During cross-examination, he deposed that he had appended his signatures on Ext. Ka-2 at the police station and that the time of recovery had not been mentioned therein. He further deposed that he had signed the panchayatnama while being at his residence. He denied the suggestion that no signatures were obtained at the place of occurrence and that the documents had been signed only at the police station.
23. PW-5 Ram Prasad Yadav, that the dead bodies of deceased children Priya and Shani were recovered from a well situated towards the eastern side of the village with the assistance of villagers. He further deposed that inquest proceedings of the dead bodies were conducted in his presence at the house of Mr. Yadav, father of complainant Jagdish Yadav, wherein Pushpa Devi was also present after being taken out from the well. The witness identified his signatures upon the panchayatnama prepared during the inquest proceedings.
24. During cross-examination, he deposed that the panchayatnama proceedings commenced around 11:0012:00 noon and concluded within approximately ten minutes. He further deposed that he was not aware whether the Investigating Officer had mentioned the exact time in the panchayatnama or not. He further deposed that at the relevant time he had informed only that the deceased children had fallen into the well and had not disclosed to anyone that they had been murdered and thrown therein. He further deposed that such allegation was being made by him for the first time before the Court. He also denied the suggestion that his signatures were not obtained at the spot and clarified that the same were not made at the police station.
25. PW-6 Dr. R. Dhirendra, District Medical Officer, Sultanpur Hospital, deposed that on 10.09.2010 he was posted as medical officer at District Hospital, Akbarpur, Ambedkar Nagar. He further deposed that on the same he conducted the post-mortem examination of deceased Priyas body at around 2:10 PM. On external examination he found, both the eyes and mouth were closed, rigor mortis had disappeared from the upper body and was present in the lower part and foam was oozing out of the nose. Following ante-mortem injuries were found on the body of the deceased:
â–ª Injury No. 1- Abrasion measuring 0.5 cm X 0.3 cm on the upper part of the right eye.
â–ª Injury No. 2- Abrasion measuring 0.3 cm X 0.2 cm on the left side of the face, just below the left eye.
On internal examination, he found that the brain was congested and a foreign body was present in the windpipe. Both lungs were found filled with water. The right chamber of the heart was half-filled with dark-coloured blood. The stomach contained approximately 50 ml of water along with a foreign body, namely weeds. The small intestine contained stool and semi-digested food, while the large intestine contained stool. The liver, spleen and kidneys were found congested. The gall bladder was full and the urinary bladder was found half-filled. He deposed that at the time of the autopsy, body was one day old and in his opinion, the death was likely caused by asphyxia resulting from drowning. He verified and proved the post-mortem report before the trial court, which is marked as Ext. Ka-3.
26. On the same day, at around 2:45 PM, he also conducted the post-mortem examination on the body of Shani, and on external examination he found that the body was approximately one day old, both the eyes and mouth were closed, foam was oozing out from nose, rigor mortis had disappeared from the upper extremities and remained in the lower extremities. He found the following ante-mortem injuries:
Injury No. 1: Abrasion measuring 0.5 cm X 0.3 cm on the right upper eyelid
Injury No. 2: Abrasion measuring 0.5 cm X 0.3 cm on the left upper eyelid
Injury No. 3: Abrasion measuring 1.2 cm X 0.5 cm on the tip of the nose
On internal examination, he found the brain to be congested and a foreign body present in the windpipe. Both lungs were filled with water. The right chamber of the heart was found half-filled with dark-coloured blood. The stomach contained a foreign body along with approximately 25 ml of fluid. Stool, fluid and gas were present in the small intestine, while stool was found in the large intestine. The gall bladder was full and the urinary bladder was half full. The liver, spleen and kidneys were also found congested.
27. In the opinion of the doctor, the cause of death was asphyxia due to drowning. He duly proved and verified the post-mortem report before the Trial Court, which was marked as Ext. Ka-4. He further deposed that it was possible that both the deceased had died during the night intervening 10.09.2010. He further deposed that the debris found on the bodies of the deceased could have adhered thereto as the bodies were recovered in a face-down position in a well surrounded by bushes, from where such debris might have come.
28. During cross-examination, the witness deposed that rigor mortis generally spreads throughout the entire body within 24 hours of death and ordinarily subsides within 48 hours. He further deposed that rigor mortis had started subsiding from the head region of the deceased, which, according to him, is a condition usually found after about 24 hours of death. He further deposed that if bushes were present inside the well, it was possible that the injuries found on the bodies of the deceased could have been caused while falling into the same. He further deposed that if there was water in the well, the possibility of the deceased having died due to falling into the well could not be ruled out. He further deposed that the deceased could have died at any time prior to 2:00 PM on 09.09.2010.
29. PW-7 Vimal Kumar Singh, Crime Branch, Lucknow, deposed that on 13.09.2010 he was posted as Station House Officer at Police Station Akbarpur, District Ambedkar Nagar. On the said date, complainant Jagdish Prasad Yadav submitted a written report alleging that on 10.09.2010 his wife Pushpa and co-accused Surendra Verma, with whom she allegedly had illicit relations, had murdered his daughter Priya aged about 8 years and son Shani aged about 3 years by throwing them into a nearby well. He further deposed that n the basis of the said written report, Case Crime No. 921 of 2010 under Sections 302/201 IPC was registered and investigation was taken up by him. He further deposed that prior information regarding recovery of the bodies from the well had already been entered on 10.09.2010, as per the information given by Mr. Yadav (father of the complainant), and the inquest proceedings were conducted by SI Shyam Lal, thereafter the bodies were sent for post-mortem examination. He further deposed that during investigation he prepared case diaries, inspected the place of occurrence, prepared the recovery memo of the torch recovered from the well and recorded statements of witnesses. He further deposed that accused Pushpa Devi was arrested and her statement was recorded wherein she allegedly confessed her guilt. Thereafter, statements of witnesses including Ram Prasad, Suresh Yadav, Chandrabhan Yadav, Arvind Kumar Verma and independent witness Lallu Yadav were recorded. He further deposed that after completion of investigation, charge-sheet was submitted against accused Pushpa Yadav and Surendra Verma. He verified and proved the recovery memo, site plan and charge sheet and prepared by him before the trial court, which were marked as Ext. Ka-2, Ext. Ka-5 and Ext. Ka-6 respectively.
30. During cross-examination, he admitted that he had not mentioned the time of commencement and conclusion of investigation proceedings in the case diary. He further admitted that the time of recovery of the torch from the well was also not mentioned in the recovery memo. He also admitted that no witness had informed him that the children were murdered and thereafter thrown into the well. He deposed that no inquest report contained the time of commencement or conclusion of the inquest proceedings. He denied the suggestion that no investigation was conducted at the spot and that all proceedings were completed while sitting at the police station.
31. PW-8 Ram Karan Nishad, Head Moharrir, deposed that on 13.09.2010 he was posted at Police Station Akbarpur and on the basis of the written report submitted by the complainant, he registered the check FIR and prepared GD entry No. 39 at 16:10 hours. He proved the check FIR and GD entry as Ext. Ka-7 and Ext. Ka-8 respectively. He identified the handwriting and signatures of SI Shyam Lal on both the panchyatmanas which were marked as Ext. Ka9 and Ext. Ka-10; sample seals marked as Ext. Ka-11 and Ext. Ka-15, sketch of dead bodies marked as Ext. Ka-12 and Ext Ka-16, challan lash marked as Ext. Ka-13 and Ext Ka-17, letter to CMO marked as Ext. Ka- 14.
32. During cross-examination, he deposed that the CO office was situated at a distance of about two kilometres from the police station and post used to be sent daily from the police station to the CO office. He admitted that no date was mentioned below the signature of the CO on the check FIR and that preparation of the check report may have taken about 20-25 minutes. He further admitted that the inquest report did not mention the time of commencement or conclusion of the proceedings and that the original GD was not produced before the Court. He denied the suggestion that the FIR was ante-timed and ante-dated.
Court Analysis:
Evidentiary value of Extra-Judicial Confession:
33. The principal circumstance relied upon by the prosecution against accused-appellants is the alleged extra-judicial confession said to have been made by accused Pushpa before PW-1 Jagdish Yadav after his return from Delhi. According to PW-1, accused Pushpa disclosed before him that deceased Priya had seen accused Pushpa and co-accused Surendra Verma in a compromising position and threatened to disclose the same, whereafter both the accused persons threw the children into the well and thereafter Pushpa herself entered the well and drowned Priya.
34. This Court finds that the aforesaid circumstance, which forms the very foundation of the prosecution case, suffers from serious legal and factual infirmities.
35. At the outset, it is noteworthy that the written report and the FIR were admittedly lodged on 13.09.2010, i.e., three days after the occurrence. However, neither in the written report nor in the check FIR is there any clear recital that accused Pushpa had made any specific extra-judicial confession before PW-1 in the manner subsequently narrated before the Court. The prosecution story regarding confession has substantially improved during oral deposition before the Trial Court. The alleged confession, which constitutes the core incriminating circumstance against the accused-appellants, thus emerges for the first time during trial. Such material improvement strikes at the root of the prosecution case.
36. In this regard, learned counsel for the appellants has rightly placed reliance upon Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SCC 750, wherein the Honble Supreme Court held that where no reference to an extra-judicial confession is made in the FIR and the same surfaces subsequently during evidence, such circumstance becomes doubtful, particularly when material contradictions exist regarding the manner and circumstances in which the alleged confession was made.
37. Further, the testimonies of the prosecution witnesses themselves create serious doubt regarding the existence and manner of the alleged confession. PW-2 Ram Teerath Yadav specifically deposed that accused Pushpa merely informed the villagers that the children had accidentally fallen into the well and that she herself had jumped inside in an attempt to save them. He further categorically stated that he had no knowledge regarding any conversation which allegedly took place between PW-1 and accused Pushpa concerning the incident.
38. Contrary thereto, PW-3 Hriday Ram Yadav deposed that accused Pushpa allegedly confessed before the family members that she had illicit relations with accused Surendra Verma and that both children were thrown into the well after deceased Priya witnessed them in a compromising condition.
39. Thus, there exists a material contradiction between the prosecution witnesses themselves with regard to the very existence, manner and audience of the alleged confession. One witness denies knowledge thereof altogether, whereas another witness claims that the confession was made before family members collectively. Such contradictions strike at the root of the prosecution case and render the alleged confession wholly unsafe to rely upon.
40. Furthermore, the learned Trial Court, while relying upon the alleged extra-judicial confession, failed to appreciate that the prosecution witnesses themselves were not consistent regarding the manner, timing and audience of the alleged confession. The Trial Court proceeded as if the confession stood conclusively proved, despite the fact that PW-2 had specifically denied knowledge of any such confession whereas PW-3 alleged that the same was made before the family members collectively. The Trial Court further failed to consider that no such confession finds mention either in the written report or in the earliest version of the prosecution case, thereby rendering the subsequent oral improvement wholly doubtful.
41. The law regarding extra-judicial confession is no longer res integra. Learned A.G.A. has placed reliance upon Sahoo v. State of U.P., AIR 1966 SC 40, to contend that in the present case extra-judicial confession should be treated as reliable evidence. However, a careful reading of the said judgment itself reveals that the Honble Supreme Court drew a distinction between admissibility and evidentiary weight of such confession. The Court categorically observed that such confessional statements are often utterances of a disturbed or confused mind and before acting upon the same, the exact words used by the accused must be proved by cogent evidence. The Court further held that prudence and justice demand that such evidence ordinarily should not form the sole basis of conviction and may at best be used as a corroborative piece of evidence.
42. In the present case, the alleged confession neither inspires confidence nor receives corroboration from independent evidence. No independent witness has supported the prosecution version regarding such confession. Even the medical evidence does not conclusively support homicidal death, rather PW-6 admitted that possibility of accidental drowning could not be ruled out. Thus, the alleged confession remains wholly uncorroborated.
43. Apart from the above, this Court further finds that the alleged extra-judicial confession was not specifically put to accused Pushpa during her examination under Section 313 Cr.P.C. The object and scope of Section 313 Cr.P.C. is not merely procedural but substantive in nature and is founded upon the principles of natural justice embodied in the maxim audi alteram partem. The provision casts a mandatory duty upon the Court to put every incriminating circumstance appearing in the prosecution evidence to the accused so as to afford him/her an effective opportunity of explanation.
44. In this regard, learned counsel for the appellants has rightly placed reliance upon the judgment of the Honble Supreme Court in Sujit Biswas v. State of Assam, (2013) 12 SCC 406, wherein it was held that circumstances not put to the accused under Section 313 Cr.P.C. must be excluded from consideration. Similar principles were reiterated in Indrakunwar v. State of Chhattisgarh, 2023 SCC OnLine SC 1364, wherein it was held that the Court is obligated to put all incriminating circumstances to the accused and omission thereof causes serious prejudice to the defence.
45. In the present case, since no specific question regarding the alleged extra-judicial confession was put to accused Pushpa under Section 313 Cr.P.C., the same cannot legally be read against her.
46. Therefore, considering:
(i) absence of clear recital regarding confession in the FIR,
(ii) material improvements during trial,
(iii) contradictions between PW-2 and PW-3,
(iv) lack of independent corroboration,
(v) failure to put such incriminating circumstance to accused Pushpa under Section 313 Cr.P.C.,
47. This Court is of the considered opinion that the alleged extra-judicial confession is wholly unreliable and unsafe to form the basis of conviction.
Burden of Proof and Applicability of Section 106 of the Evidence Act:
48. Learned A.G.A. has submitted that both the deceased children were last seen in the company of accused Pushpa and that accused Pushpa herself was found inside the well from where the bodies of the deceased children were recovered. It has further been argued that since the occurrence had taken place during night hours and the relevant facts were especially within the knowledge of accused Pushpa, the burden lay upon her under Section 106 of the Indian Evidence Act to explain the circumstances in which the children died. According to learned A.G.A., failure of the accused to furnish satisfactory explanation constitutes an additional incriminating circumstance against her.
49. Per contra, learned counsel for the appellants has submitted that Section 106 of the Evidence Act cannot be invoked to relieve the prosecution of its initial and primary burden of proving the guilt of the accused beyond reasonable doubt. It has been argued that accused Pushpa had consistently offered explanation that the children had gone for easing themselves near the well, accidentally fell therein and that she herself jumped into the well in an attempt to save them. It has further been submitted that unless the prosecution first establishes a complete chain of incriminating circumstances, adverse inference under Section 106 cannot be drawn against the accused.
50. The law relating to burden of proof in criminal trials is well settled. Section 101 of the Indian Evidence Act, 1872 embodies the cardinal principle of criminal jurisprudence that the burden always lies upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Section 106 of the Evidence Act, 1872 is only an exception to the aforesaid general rule and cannot be interpreted so as to shift the primary burden of proving guilt upon the accused.
51. In this regard, learned counsel for the appellants has rightly placed reliance on Shambu Nath Mehra v. State of Ajmer, (1956) 1 SCC 337, wherein it was categorically held that Section 106 is not intended to relieve the prosecution of its duty to prove the guilt of the accused. The Honble Supreme Court observed that the provision applies only to such exceptional facts which are especially and pre-eminently within the knowledge of the accused and which it would be impossible or disproportionately difficult for the prosecution to establish. The Honble Supreme Court further cautioned that Section 106 cannot be construed in a manner which would result in placing the burden upon the accused to prove his innocence. This principle squarely applies to the facts of the present case.
52. In the instant matter, the prosecution has itself attempted to establish the occurrence through alleged direct and circumstantial evidence by relying upon motive, extra-judicial confession and surrounding circumstances. The prosecution case is not one where the facts were exclusively incapable of being proved except through the accused. Rather, the prosecution itself examined witnesses in support of its own version regarding the occurrence. Therefore, once the prosecution undertook the burden of proving the occurrence through its own evidence, it cannot invoke Section 106 merely to overcome deficiencies in the prosecution case.
53. In this regard, reliance placed by learned counsel for the appellants upon Murlidhar v. State of Rajasthan, (2005) 11 SCC 133, is also apposite. In the said case, the Honble Supreme Court held that where the prosecution itself proceeds on the footing that there are eyewitnesses to the occurrence, Section 106 of the Evidence Act cannot subsequently be invoked to sustain conviction when the prosecution evidence itself suffers from contradictions and improbabilities. The Apex Court held that the prosecution must first establish foundational facts before any burden can shift upon the accused.
54. Similarly, reliance placed by the learned counsel for the appellant upon Nupur Talwar (Dr.) v. State of U.P., 2017 SCC OnLine All 2222, is also applicable to the present case. The Court therein held that Section 106 cannot be utilized to fill up lacunae in the prosecution case and that the prosecution must independently establish the chain of circumstances before adverse inference can be drawn against the accused.
55. The aforesaid principles have recently been reiterated by the Honble Supreme Court in Nagendra Sah v. State of Bihar, (2021) 10 SCC 725 and Anees v. State (NCT of Delhi), (2024) 15 SCC 48, wherein it was held that failure of the accused to explain circumstances under Section 106 may at best provide an additional link only when the prosecution has otherwise succeeded in establishing a complete chain of incriminating circumstances.
56. In the present case, the foundational facts themselves remain doubtful. The prosecution version initially was that the children accidentally fell into the well and accused Pushpa had entered the well in an attempt to save them. PW-2 specifically deposed that accused Pushpa informed villagers that the children had accidentally fallen into the well and she herself had jumped inside to save them. Even according to prosecution witnesses, accused Pushpa was found alive inside the well in the morning and was rescued by villagers. The conduct attributed to accused Pushpa is not wholly inconsistent with the defence version.
57. Furthermore, The learned Trial Court erred in shifting the burden upon the accused-appellants without the prosecution first discharging its primary burden of proving the foundational facts beyond reasonable doubt. The Trial Court invoked the conduct of accused Pushpa being found inside the well as an incriminating circumstance, while failing to appreciate that accused Pushpa had consistently offered an explanation that she had entered the well in an attempt to save the children after they accidentally fell therein. In absence of a complete and cogent chain of incriminating circumstances, adverse inference under Section 106 of the Evidence Act could not have been drawn against the accused-appellants
58. Thus, in absence of a complete and unimpeachable chain of circumstances, merely because accused Pushpa was present inside the well along with the deceased children would not by itself be sufficient to invoke Section 106 of the Evidence Act so as to shift the burden of proof upon her. The prosecution must stand on the strength of its own evidence and cannot derive support from the weakness of the defence.
Delay in Lodging of FIR
59. Learned counsel for the accused-appellants has submitted that the FIR in the present case was lodged after an inordinate and unexplained delay of approximately three days from the date of occurrence and the said delay materially affects the credibility and spontaneity of the prosecution case. It has been argued that the occurrence allegedly took place during the intervening night of 09/10.09.2010, whereas the FIR came to be lodged only on 13.09.2010 after sufficient time for deliberation and consultation.
60. Per contra, learned A.G.A. has submitted that the delay stands sufficiently explained as PW-1 Jagdish Yadav was residing in Delhi and the FIR came to be lodged after his return to the village.
61. Admittedly, the dead bodies of the deceased children were recovered from the well on the morning following the occurrence itself. The prosecution evidence further reveals that police authorities were informed immediately thereafter and inquest proceedings were conducted on the same day. Thus, the investigating machinery had already been set into motion and police had reached the spot at the earliest point of time.
62. At this juncture, it would be apposite to notice the distinction between proceedings contemplated under Section 174 Cr.P.C. and registration of a First Information Report under Section 154 Cr.P.C. The object of an inquest proceeding under Section 174 Cr.P.C. is confined to ascertaining the apparent cause of death and the nature of injuries found on the body of the deceased. Such proceedings are merely preliminary in character and do not constitute investigation into a cognizable offence in the strict legal sense. An inquest report is not substantive evidence and cannot be treated as a substitute for a promptly lodged FIR where allegations of homicidal death are involved.
63. In the present case, it is admitted position that immediately after recovery of the dead bodies, police authorities were informed and inquest proceedings were conducted on the very date of occurrence itself. Therefore, the prosecution was under a corresponding obligation to satisfactorily explain as to why, despite police intervention at the earliest point of time and despite availability of family members at the spot, no FIR alleging commission of murder came to be lodged until after lapse of approximately three days i.e. only after PW-1 returned from Delhi.
64. The aforesaid circumstance assumes further significance in view of the material inconsistencies appearing in the testimonies of the prosecution witnesses regarding the return of PW-1, the alleged extra-judicial confession and the subsequent lodging of the FIR.
65. PW-1 Jagdish Yadav, in his deposition, has not specifically stated the exact date on which he returned from Delhi. He merely stated that on the third day after the occurrence he took accused Pushpa into confidence and thereafter she allegedly made confession before him regarding the incident, pursuant to which the FIR came to be lodged.
66. However, PW-2 specifically deposed that PW-1 returned from Delhi on the second day after the occurrence, i.e. on 12.09.2010 and PW-3 has also stated that PW-1 returned on the second day after the occurrence, and thereafter they went to the police station for registration of the FIR on the same day itself.
67. Thus, according to PW-2 and PW-3, the FIR should have been lodged immediately after arrival of PW-1, whereas according to PW-1, the FIR came to be lodged only after accused Pushpa allegedly made confession before him after he took her into confidence.
68. This creates a serious inconsistency regarding the very genesis and development of the prosecution case because if, according to PW-2, they had immediately left for lodging the FIR upon arrival of PW-1, then the prosecution version regarding the alleged extra-judicial confession having taken place prior to registration of the FIR becomes doubtful.
69. In other words, the prosecution has failed to clearly establish:
(i) the exact date of arrival of PW-1 from Delhi;
(ii) the exact date and time of lodging of FIR;
(iii) the point of time at which the alleged confession was made; and
(iv) whether the FIR was lodged before or after the alleged confession.
70. These contradictions are not minor discrepancies arising out of lapse of memory, but go to the very root of the prosecution story and materially affect its credibility.
71. Furthermore, the learned Trial Court, though noticing that PW-1 was residing in Delhi and had returned subsequently, failed to properly appreciate the significance of the delay in lodging the FIR. It failed to consider that the inquest proceedings themselves were admittedly initiated by Shri Yadav, father of PW-1, on the very date of occurrence. However, despite availability of family members and despite police intervention at the spot itself, no FIR was lodged immediately.
72. It is a settled principle of criminal jurisprudence that prompt lodging of FIR lends assurance to the prosecution case as it minimizes the possibility of deliberation, embellishment and subsequent improvement. Conversely, where there is substantial delay and the prosecution story undergoes material changes during the intervening period, the Court is required to scrutinize the prosecution evidence with greater caution.
73. In the facts of the present case, the possibility of consultation, deliberation and gradual development of the prosecution story during the intervening period cannot be safely ruled out.
Appreciation of Evidence Qua Accused-Appellant Surendra
74. So far as accused-appellant Surendra is concerned, this Court finds that the prosecution has failed to establish any independent incriminating circumstance conclusively connecting him with the commission of the alleged offence.
75. Admittedly, there is no direct evidence against accused-appellant Surendra. No prosecution witness has deposed having seen him near the place of occurrence during the relevant time. There is also no evidence establishing that the deceased children were last seen alive in his company. No recovery, forensic material or scientific evidence has been brought on record connecting accused-appellant Surendra with the alleged occurrence.
76. The prosecution primarily sought to implicate accused-appellant Surendra on the basis of alleged illicit relationship with accused Pushpa and the alleged extra-judicial confession. However, as already discussed hereinabove, the alleged motive itself has not been conclusively established by reliable and independent evidence. Similarly, the alleged extra-judicial confession suffers from material contradictions, improvements and inherent improbabilities and does not inspire confidence.
77. This Court further finds that the learned Trial Court placed undue reliance upon the statement of accused Pushpa recorded under Section 313 Cr.P.C., wherein she alleged that accused-appellant Surendra had thrown the children into the well. However, such statement of a co-accused cannot be treated as substantive evidence against another accused person. The statement under Section 313 Cr.P.C. is intended only to provide an opportunity to the concerned accused to explain incriminating circumstances appearing against him or her and cannot independently form basis for conviction of a co-accused in absence of legally admissible corroborative evidence.
78. The prosecution witnesses themselves admitted existence of prior disputes and litigations between the families, thereby rendering possibility of false implication incapable of being completely ruled out.
79. Thus, in absence of any independent, cogent and reliable evidence connecting accused-appellant Surendra with the commission of offence, this Court is of the considered view that the prosecution has failed to prove the charges against him beyond reasonable doubt. Mere suspicion, however grave, cannot substitute proof beyond reasonable doubt.
Medical and Forensic Evidence vis–vis Prosecution Theory of Homicidal Drowning:
80. PW-6 Dr. Dhirendra, who conducted the post-mortem examination upon the bodies of both deceased children, opined that death had occurred due to asphyxia resulting from drowning. However, the medical evidence merely establishes the cause of death and not necessarily the manner of death. In forensic jurisprudence, a distinction always exists between cause of death and manner of death. While the former relates to the physiological reason leading to death, the latter concerns whether the death was homicidal, suicidal, accidental or natural. In the present case, although drowning stands medically established as cause of death, the prosecution was still required to independently establish through reliable evidence that the drowning was homicidal in nature.
81. Significantly, except minor abrasions near the eyes and nose, no ante-mortem injuries suggestive of violent assault, forcible restraint, throttling, smothering or struggle were found on the bodies of either deceased child. No nail marks, grip marks, contusions, abrasions on wrists, defensive injuries or signs of physical resistance were noticed during post-mortem examination.
82. The doctor himself admitted during cross-examination that the abrasions found upon the bodies could occur due to contact with bushes or rough surfaces while falling into the well. He further admitted that if water was present in the well, possibility of accidental fall resulting in drowning could not be ruled out.
83. The prosecution version specifically alleges that deceased Priya had initially survived after falling into the well and was thereafter forcibly submerged in water by accused Pushpa. However, if such forcible drowning had actually taken place, particularly involving conscious and resisting children, some corresponding signs of physical struggle or resistance would ordinarily be expected upon the bodies. In cases of homicidal drowning, forensic indicators such as struggle injuries, defensive marks, bruising caused by restraint or signs of forcible immersion often assume evidentiary significance. The complete absence of such injuries materially weakens the prosecution theory.
84. The learned Trial Court, while accepting the prosecution version of forcible drowning, failed to properly appreciate this important forensic aspect. The Trial Court proceeded on presumptions unsupported by medical science and failed to consider that the medical evidence did not conclusively corroborate the prosecution theory regarding forcible submersion and homicidal drowning.
85. It is a settled principle of criminal jurisprudence that where medical evidence is equally consistent with two possible views, one pointing towards guilt and the other towards innocence, the view favourable to the accused must ordinarily be adopted. Medical evidence may corroborate or contradict ocular evidence, but where the prosecution case itself rests substantially upon circumstantial evidence, inability of medical evidence to conclusively support the prosecution theory assumes greater significance.
86. In the present case, the medical and forensic evidence does not conclusively establish homicidal drowning and fails to furnish reliable corroboration to the prosecution case. On the contrary, the possibility of accidental drowning has not been effectively ruled out by the prosecution beyond reasonable doubt.
Failure to Establish Complete Chain of Circumstances:
87. Learned counsel for the accused-appellants has submitted that the present case rests entirely upon circumstantial evidence and the prosecution has failed to establish a complete and unbroken chain of incriminating circumstances pointing only towards the guilt of the accused-appellants. In support of the aforesaid contention, reliance has been placed upon the judgment of the Honble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.
88. The Honble Supreme Court in the aforesaid judgment authoritatively laid down that in a case based upon circumstantial evidence:
(i) the circumstances from which the conclusion of guilt is to be drawn must be fully established;
(ii) the circumstances must be consistent only with the hypothesis of the guilt of the accused;
(iii) the circumstances should be of conclusive nature and tendency;
(iv) they should exclude every possible hypothesis except the one sought to be proved; and
(v) there must be a complete chain of evidence so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
89. The aforesaid principles constitute the settled foundation of criminal jurisprudence governing cases resting upon circumstantial evidence.
90. In the present case, the prosecution seeks to establish guilt of the accused-appellants primarily on the basis of:
(i) alleged illicit relationship between accused Pushpa and co-accused Surendra Verma;
(ii) alleged extra-judicial confession;
(iii) presence of accused Pushpa inside the well;
(iv) alleged last-seen circumstance; and
(v) subsequent conduct of the accused persons.
91. However, upon careful scrutiny of the evidence available on record, this Court finds that the prosecution has failed to conclusively establish even a single incriminating circumstance beyond reasonable doubt, much less a complete chain excluding every hypothesis of innocence.
92. So far as the alleged motive relating to illicit relationship is concerned, the same remains wholly unsubstantiated by independent evidence. None of the prosecution witnesses claimed to have personally seen accused Pushpa and Surendra Verma in any compromising position. The prosecution case in this regard rests merely upon suspicion and hearsay allegations. Mere suspicion, however grave, cannot take the place of legal proof.
93. The next circumstance relied upon by the prosecution is the alleged extra-judicial confession made by accused Pushpa. However, as already discussed hereinabove, the said confession suffers from serious contradictions and inherent improbabilities. The confession does not find clear mention in the FIR; there are material inconsistencies regarding the time and manner in which it was allegedly made; and even the prosecution witnesses contradict each other on this aspect. Moreover, the alleged confession was not specifically put to accused Pushpa during her examination under Section 313 Cr.P.C. Thus, the said circumstance cannot safely be relied upon.
94. The prosecution has further attempted to rely upon the fact that accused Pushpa was found inside the well along with the deceased children. However, the said circumstance by itself does not conclusively establish guilt. On the contrary, accused Pushpa consistently offered explanation that the children had accidentally fallen into the well while going for easing themselves and that she herself jumped inside in an attempt to save them. PW-2 also supported the said version in his testimony.
95. The last-seen circumstance has also not been proved in accordance with law. No witness has deposed that the deceased children were last seen alive exclusively in the company of both accused-appellants immediately prior to the occurrence. No evidence has been led to establish that the accused persons were seen taking the children towards the well during the relevant time. Thus, the prosecution has failed to establish proximity of time and place necessary for applying the last-seen theory.
96. It is well settled that last-seen theory is itself a weak type of evidence and can be relied upon only where the time gap between the accused and deceased being last seen together and the occurrence of death is so small that possibility of intervention by any third person is completely excluded. No such circumstance exists in the present case.
97. Furthermore, the FIR itself was lodged after substantial delay and the prosecution story underwent material improvements during the intervening period. The initial version before the villagers and police authorities was admittedly one of accidental drowning. The prosecution version subsequently developed into one of homicidal death after the arrival of PW-1 from Delhi. Such improvements materially weaken the credibility of the prosecution case.
98. Thus, the chain of circumstances sought to be established by the prosecution is neither complete nor incapable of explanation upon any hypothesis other than guilt of the accused-appellants. Several missing links, inconsistencies and alternative possibilities emerge from the evidence on record.
99. In criminal jurisprudence, suspicion, however strong, cannot substitute proof. Unless the chain of circumstances is so complete as to conclusively point towards guilt and exclude every reasonable hypothesis of innocence, conviction cannot be sustained.
100. The learned Trial Court committed manifest error in holding that the chain of circumstances stood fully established, whereas several vital links remained unproved. There was no reliable last-seen evidence against either of the accused-appellants; no independent witness supported the allegation regarding illicit relationship; the alleged motive itself rested merely upon suspicion and hearsay; and the prosecution witnesses admitted existence of prior enmity and litigations between the families. Despite such material deficiencies, the Trial Court proceeded to record conviction on the basis of conjectures and assumptions rather than legally admissible and reliable evidence.
101. Accordingly, this Court is of the considered opinion that the prosecution has failed to establish a complete and unbroken chain of incriminating circumstances against the accused-appellants beyond reasonable doubt.
Conclusion:
102. On cumulative consideration of the entire evidence available on record, this Court finds that the prosecution has failed to establish a complete and unbroken chain of incriminating circumstances against the accused-appellants. The prosecution evidence suffers from material contradictions, improvements and inherent improbabilities. The alleged extra-judicial confession is unreliable, the last-seen circumstance has not been proved and the delay in lodging of the FIR remains inadequately explained.
103. It is a settled principle of criminal jurisprudence that suspicion, however grave, cannot take the place of legal proof. Where two views are possible, the one favourable to the accused must necessarily be adopted. The prosecution must stand upon the strength of its own evidence and cannot derive benefit from weaknesses of the defence.
104. In view of the aforesaid discussion, this Court is of the considered opinion that the findings recorded by the learned Trial Court are not sustainable in the eyes of law and the accused-appellants are entitled to benefit of doubt.
105. Accordingly, both the present appeals are hereby allowed. The judgment and order of conviction and sentence passed by the learned Trial Court is set-aside.
106. The accused-appellants, Pushpa and Surendra Kumar Verma, are directed to be released forthwith, if not required in any other case. Pending applications, if any, shall stand disposed of.
107. Let a certified copy of this judgment along with the lower court record be transmitted to the court concerned forthwith, and in any case within a period of one week, for compliance.
(Zafeer Ahmad, J.) (Rajesh Singh Chauhan, J.)
May 21,2026
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