Allahabad High Court
Mamta Prasad Mishra vs The State Of U.P. on 12 September, 2025
Bench: Rajnish Kumar, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:55416-DB Reserved/AFR
Court No. - 10
Case :- CRIMINAL APPEAL No. - 1612 of 2013
Appellant :- Mata Prasad Mishra
Respondent :- State of U.P.
Counsel for Appellant :- Firoz Ahmad Khan, Rajendra Prasad Lodhi, Rudra Pratap Lal, Santosh Kumar Gupta
Counsel for Respondent :- Govt. Advocate
Hon'ble Rajnish Kumar,J.
Hon'ble Rajeev Singh,J.
(As Per Hon'ble Justice Rajnish Kumar, J.)
1. Heard, Sri Rudra Pratap Lal,learned counsel for the appellant and learned AGA.
2. The instant Criminal Appeal under Section 374(2) of Criminal Procedure Code (hereinafter referred as Cr.P.C.) has been filed against the judgment and order dated 27.09.2013 passed in Session Trial No.19/2012; State versus Mata Prasad Mishra by the Special Judge, (E.C.) Act, Gonda arising out of Case Crime No.390/2011, under Section 302 of Indian Penal Code (hereinafter referred as I.P.C.), Police Station Dhanepur, District Gonda.
3. The prosecution case is that the sister of the complainant Raj Kumar Pandey, Shail Kumari was married about 25 years ago with Mata Prasad Mishra. His brother-in-law Mata Prasad Mishra always used to beat his sister but she did not speak anything. His sister has five children, two daughters and three sons. His brother-in-law always used to take ganja and never took responsibility of house and children. On 04.09.2011, his brother-in-law demanded money from his sister for ganja but she declined, on account of which there was quarrel between them and in the evening on that day, the food was not prepared. In the night of 4/5.9.11, while his sister was sleeping on cot alone and her children Jitendra, Shiv Nandini and Manoj were also sleeping near her, seeing the opportunity, his brother-in-law killed his sister by pressing her mouth. The complainant was out and when he came back then he came to know about it and, accordingly, the F.I.R. was lodged by him on 08.09.2011.
4. On the basis of Tehrir(Ex Ka-1) of the complainant, the F.I.R.(Ex.Ka-4) was recorded. Thereafter recovery memo(Ex Ka-2), carbon copy of the report (Ex. Ka-3), site plan of the place of incident(Ex.Ka-5), inquest report(Panchayatnama) (Ex.Ka-7), photograph of the dead body (Ex.Ka-8), Form No.13 (Ex.Ka-9), Letter of R.I. (Ex.Ka-10), Letter of C.M.O.(Ex.Ka-11), Sample Seal (Ex. Ka-12), copy of report No.25 prepared at 11:30 on 05.09.2011(Ex. Ka-13) and post mortem report (Ex. Ka-14) were prepared by the Investigating Officer during the investigation and placed on record. Thereafter, after recording the statement of the witnesses and collecting the material, charge sheet under Section 302 I.P.C.(Ex. Ka-6) was submitted in the court of C.J.M., Gonda. Considering the same, the cognizance was taken on the chargesheet and the accused/ appellant was summoned. On his appearance, the copies of the required documents in compliance of Section 207 Cr.P.C. were provided and finding it to be a case triable by the Sessions Court, it was committed to the Session by means of the order dated 10.01.2012 passed by Chief Judicial Magistrate, Gonda. The Session court framed charge against the appellant under Section 302 I.P.C., which was denied by the appellant and he prayed for trial.
5. During trial, in support of the charge, the complainant(brother of the deceased) Raj Kumar pandey as P.W.1, Manoj Kumar Pandey(son of the complainant) as P.W.2, Head Constable Nitya Nand Singh as P.W.3, Pramod Kumar Jha as P.W.5 and Dr. G.K. Sharma as P.W.6 and S.I. Ramayan Singh as P.W.6 were examined in evidence. Thereafter, the statement of the accused-appellant was recorded under Section 313 Cr.P.C., in which he stated that the incident is wrong, false evidences have been recorded and fraudulent recovery has been shown and the case has been lodged on account of enmity. He also stated for giving the evidence. Shivangi Mishra, daughter of the deceased, was examined in defence as D.W.1.
6. Thereafter, after hearing Assistant Government Advocate(Criminal) and the counsel for the defense, the trial court convicted the appellant under Section 302 I.P.C. and after affording opportunity of hearing, sentenced him with rigourous life imprisonment with a fine of Rs.5000/- and in default of payment of fine, he would have to undergo one month additional simple imprisonment. Being aggrieved by the impugned judgment and order, the instant Criminal Appeal has been filed.
7. Learned counsel for the appellant submitted that the appellant was falsely and wrongly implicated in the case on account of enmity with his brother-in-law, in connection with the dispute of payment of money. He further submitted that the marriage of the appellant and deceased was solemnized prior to 25 years of the date of incident and there is no prior complaint from any corner. The conviction has been made only on the basis of evidence of P.W.1 and P.W.2, who are the complainant and his son, without considering the evidence of the defence witness and the material on record and dealing it appropriately. Thus, learned counsel for the appellant submitted that the conviction of the appellant is not sustainable in the eyes of law and liable to be set aside.
8. Per contra, learned AGA, vehemently opposed the submissions of learned counsel for the appellant. He submitted that the appellant has rightly been convicted, in accordance with law, considering the evidence of eye witness who appeared as P.W.2 and the material on record. There is no illegality or error in the impugned order, which may call for any interference.
9. We have considered the submissions of learned counsel for the parties and perused the records.
10. The F.I.R. was lodged by Raj Kumar Pandey, the brother of the deceased Shail Kumari on 08.09.2011 with the allegation that the husband of the deceased has killed her in the intervening night of 4/5.9.11, while she was sleeping on cot and at that time his two sons namely Jitendra and Shiv Nandini and son of the complainant, Manoj Kumar Pandey were also sleeping near her. It has been stated that the sister of the complainant has been killed by her husband, as in the evening of 4.9.11, he had demanded money from her for taking ganja but she refused to pay the same. Admittedly, the complainant was not present at the time of alleged incident. It has been stated that when he came back in the evening of 7.9.11, then he came to know about the incident and thereafter he lodged the F.I.R.
11. It is not in dispute that the deceased Shail Kumari had died in the intervening night of 4/5.9.2011. The son-in-law of Shail Kumari, namely, Awadhesh Kumar Tiwari had reported the matter to police on 05.9.11 at 11:30 in the concerned police station. It was stated in the said report that his mother-in-law Shail Kumari wife of Mata Prasad Mishra has suddenly died. When he reached on the spot, he saw that body of her mother-in-law was lying on the door. He came to know that she had died suddenly. This report was recorded at Rapat No.25 at 11:30 on 05.09.2011 at Police Station Dhanepur, District Gonda, which has been marked as Ex.Ka(13). This report has been proved by S.I. Ramayan Singh, who appeared as P.W.6. It has further been stated by him that on receipt of the said information, he went to the spot and got the inquest of the dead body done. In the inquest i.e. Ex. Ka(7), the husband of the deceased Mata Prasad Mishra, i.e. the appellant is also a member. As per opinion of the members of the inquest report, the deceased had died suddenly but on account of doubt, the post mortem may be got done to remove the doubt. P.W.6 has proved the inquest report. He has also stated that at the time of inquest, the husband of the deceased was also present. During inquest, nobody had made any allegation against the husband of the deceased Mata Prasad Mishra. After inquest, the dead body was sent for post mortem.
12. The post mortem was done by Dr. G.K. Sharma, who appeared as P.W.6. He proved the report of post mortem. He stated that the age of the deceased was about 45 years. The upper rigor mortis is passing and lower present. The eyes were closed. The mouth was half open. No opinion was given in regard to the natural injuries. The red spots were present under the skin. The cavity and the mind was congested and corotina was also highly congested. The spinal cord was not opened. Three injuries were found. First was contused swelling of 12 cm x 8 cm over left side of her face, second was contusion of 10 cm x 10 cm over left shoulder backwards, and third contusion of 8 cm x 8 cm over right shoulder backwards. The cause of death was asphyxia as a result of antemortem smothering. The viscera was preserved. He also stated that the doctor, who was present with him, was in agreement with the opinion given in the post mortem report. In the cross examination, he stated that the deceased could have died on account of pressing of her mouth and nose. He also stated that such death was possible on account of pressing of mouth and nose by pillow. The time of death was within one and half day. The post mortem was conducted on 06.09.11 at 4:00 p.m. Admittedly, after post mortem the cremation of the deceased was done by the family members and the complainant was not present even at the time of cremation.
13. The complainant Raj Kumar Pandey appeared as P.W.1. He has stated that his sister Shail Kumari was married about 25 years ago with the appellant Mata Prasad Mishra. The house of his brother-in-law is at a distance of about 250-300 meter from his house. His brother-in-law always used to beat his sister, which she used to tell him. He further stated that his sister had 5 children, three sons and two daughters. His brother-in- law was in habbit of taking ganja. He did not take the responsibility of the children. His brother-in-law had demanded money from his sister on 04.9.11 for taking ganja and his sister had denied. On the said date, on account of quarrel between them, the food was not prepared. His sister was sleeping alone on one cot and near her three children were sleeping Shiv Nandini, Jitendra and Manoj(son of the complainant). His brother-in-law had killed his sister by pressing her mouth, which was told to him by his son Manoj. His son was staying in the house of his sister on the date of her death. When he came back, then his son informed that bua has been killed, thereafter, he gave a written tehrir at the police station, after getting it written by Devta Prasad pandey. He also stated that he had not got the report written by dictating but he had told the incident, on which the report was written. Thereafter, after signature, he had submitted it at the police station. He proved the written report, which is Ex. Ka-1. He also proved his signatures. He further stated that after lodging of the F.I.R., the police had gone at the place of incident alongwith him and he had shown the place, where his sister had died. After arrest of his brother-in-law, the pillow was recovered before him, which is EX. Ka-2, which was also signed by him. From the evidence of P.W.1, it is apparent that he was not present either on the date of incident or thereafter in the cremation of the deceased and the F.I.R. has been lodged by him on the information given by his son Manoj Kumar Pandey, who appeared as P.W.2. The report was written by Devta Prasad on the basis of incident told by the complainant and not on his dictation. Thus the version in the F.I.R. is of the scriber of F.I.R. and not of the complainant, whose evidence in regard to incident is also hearsay. In regard to information received by the complainant, he has stated in the tehrir, on the basis of which, F.I.R. has been lodged, that when he came back then after talking to the children, he came to know about the incident, whereas in the evidence before the trial court, he has stated that his son Manoj Kumar Pandey was at the house of his deceased sister and when he came back, then he told that his bua has been killed. Thus, there is contradiction in the testimonyof P.W.1 Raj Kumar Pandey in regard to the information received by him.
14. Manoj Kumar Pandey(P.W.2), at time of recording of his evidence, was aged about 10-11 years. He stated that Mata Prasad Mishra is his phoofa and the name of his bua was Shail Kumari. He further stated that he had gone to the house of his bua in the evening. She told that quarrel has taken place and asked him to stay. When she was telling it, his phoofa had come and threatened him. Food was not prepared. They slept hungry in the night. After hearing noise of quarrel, he woke up. He saw that his phoofa was beating to his bua. He had climbed on her chest and pressing her mouth with balit(may be by palm). He told him that if he would tell it to anybody, then he will also face the same consequence. He further stated that after the incident, he stayed back there and in the morning he came back to his house and told about the incident to his grand mother. His father was out. When he came back then he told to him. He had come back on 07.9.11. The tehrir was given on 08.9.11. On asking by the Darogaji, he had told him. In the cross examination, he stated that he had gone to his bua's house at 4:00 in the evening. The quarrel was going on between his bua and phoofa since prior to his going. Thereafter he stated that no quarrel had taken place before him. Thus there is contradiction in his evidence regarding quarrel between the deceased and his phoofa. However, it is apparent that it had not taken place at least before him. Six persons reside in the house of his bua, Surendra, Jitendra, Usha, Badkanne and Chotkanne. When he reached there Badkanne and Chotkanne were not there. The remaining were there. One was inside his house. Chotkanne and Badkanne had gone to Surat. The food was not made at the house of bua on that date but he had not come to his house to take the food and he went to his house on the next day. He further stated that he used to come to the court alongwith his father. He further stated that his statement was recorded by the Darogaji after 10-15 days. He had gone to the police station alone for recording his statement. Father had not gone with him. The police station is about 5 kms away from his house. It is very strange that a child of 10-11 years, who used to come to court with his father, would had gone to the police station for recording of his statement on his own after lodging of the F.I.R., whereas the police station was about 5 kms. away. He has also stated in his cross examination that two sons of his bua, namely, Surendra and Jitendra were also sleeping together. He further stated that when phoofa was beating to his bua, their sons had not seen him. His phoofa had beaten to his bua for 10-15 minutes. His bua had cried but she had not wept. His phoofa was sleeping adjacent to him. All of them had slept at 7:00. He does not know as to what was the time when the marpeet had taken place. The marpeet had taken place in the mid night. It is very strange that as per evidence of P.W.2 marpeet had taken place for 10-15 minutes and the deceased was crying on account of which P.W.2 had awaken but other children of the deceased, who were also sleeping near them had not awaken. He has further stated that after death of his bua, they had not called anybody. He remained awake and both the sons kept on sleeping. He went to his house in the morning and told to his grandmother. In the house, his mother, elder brother and his younger brother were also there. On his information, they went to see his bua but he had not gone at that time. His father had gone to Balrampur to his buas house, who came back on 7.9.11. He had gone to see his bua, who was residing in Balrampur. He further stated that on 4/5.9.11, his bua of Balrampur and his father had not gone to see the deceased. His grand mother had not lodged any report against his bua. The evidence of P.W.2 shows that either he was not present on the spot on the date of incident or he is lying on the instigation of somebody,may be his father, because it is very improbable that the deceased was being beaten for about 10-15 minutes and none of his sons, who were sleeping near her, had awaken.
15. Admittedly, no action was taken or report was lodged by the grand mother of P.W.2 i.e. the mother of the deceased. The report of death given by the son-in-law of the deceased also does not indicate any involvement of the appellant. It only indicates sudden death. In the opinion of the members of the inquest also, the death of the deceased was sudden. They had not indicated even a suspicion in the death of the deceased. The mother of the deceased and the complainant and the son-in-law have also not been produced in evidence. The Investigating Officer, Sri Pramod Kumar Jha, who appeared as P.W.4, has also stated in his evidence that statement of mother-in-law was not recorded by him. He has also admitted that the information of the death of the deceased was given by the son-in-law at the police station stating that his mother-in-law had died suddenly.
16. It was alleged in the F.I.R. that brother-in-law of the complainant Mata Prasad Mishra, has killed his sister by pressing her mouth. P.W.2, who is alleged to be an eye witness, has stated that when he woke up in the night after hearing the cry, then he saw that his phoofa was beating to his bua. He was climbing on her chest and pressing her mouth with balit(may be by palm). However, he has not stated that the appellant was pressing the mouth of the deceased by pillow, whereas recovery of pillow has been shown on the pointing out of the appellant as Ex. Ka-2 from the tree of tamarind from the back of the hut, which was on the eastern side, whereas in the Site Plan contained as Ex. Ka-5, no tree of tamarind has been shown on the eastern side of the hut. The grove has been shown, which is on the south-east of the hut near the pond of Gram Samaj. This recovery has also been made in presence of the complainant i.e. Raj Kumar Pandey P.W.1, whereas he or P.W.2 have not stated in their evidence that the deceased was killed by pressing her mouth by pillow. P.W.4 in his evidence proved the pillow, which was recovered and present before him at the time of evidence. He has specifically stated that no evidence was found on the pillow, which may indicate that it was used in the incident. On pillow being shown to the witness, he stated that neither any blood, cough etc was found on it, nor any kind of mud etc. was found. Thus, on the one hand, it appears that by showing the recovery of pillow, it has been tried to show that the deceased was killed by pillow but no evidence of any kind on pillow, alleged to have been used in the incident, could be found or proved.
17. There is also material contradiction in the evidence of P.W.1 and P.W.2. P.W.1 has stated in his evidence that alongwith his sister Shivnandini, Surendra and Jitendra were sleeping, whereas P.W.2 who is alleged to be an eye witness has stated that alongwith her bua, her two sons namely Surendra and Jitendra were sleeping and he was sleeping with Surendra and Jitendra. P.W.4, the Investigating Officer has stated that he had made the investigation as told by the complainant on his saying. He has also stated that he had recorded the evidence of the complainant Sri Raj Kumar Pandey and the eye witness Km. Shivangi and inspected the site on pointing out of the complainant and recorded the evidence of other witnesses and also prepared the site plan,which is Paper No.5/2, whereas Km. Shivangi has not been shown to be present at the time of incident by P.W.1, who has been shown an eye witness by the investigating officer.
18. Km. Shivangi Mishra has appeared as D.W.1 as a defence witness. She has stated that relation between her father and mother were good. On 04.09.2011, his Aaji had become ill and his father had gone for his treatment. Her father and Aaji lives in the village. Her mother used to live in the house situated out of village. We also reside with the mother. She and her younger brother Jitendra were sleeping in the house of her grand mother on 04.09.2011. The father had not come in the night. In the morning of 05.09.2011, at about 9-10 a.m., we came to know that the mother is lying dead on the floor. She further stated that her father and Aaji had come at about 11:00 a.m. after hearing about the incident. She further stated that quarrel was going on between the maternal uncle and her father for quite a long time in connection with exchange of money. Mother used to tell that your maternal uncle had not come to home since 7-8 years and he keeps enmity with your father. She has further stated that her maternal uncle had never come to her house in her memory. She has also stated that Manoj, the son of maternal uncle, has wrongly stated that he was sleeping with her mother. Km. Shivangi Mishra was aged about 14 years at the time of her evidence. In the cross examination, nothing could be extracted which may create any doubt about her testimony.
19. P.W.4 has admitted in his evidence that he had not tried to enquire as to whether the complainant was at home or not. He has also stated that reference of report of son-in-law has not been made in the charge sheet, therefore, it is apparent that the Investigating Officer had not considered the report submitted by the son-in-law of the deceased at the police station, in which he had stated that his mother-in-law had died suddenly.
20. P.W.2 Manoj Kumar Pandey has stated that in the evening of 04.09.2011, the food was not prepared and all of them had slept without food, whereas the post mortem report indicates that about 30 ml liquid congested has been found in the stomach, pancreas were also congested. Thus, the post mortem report also does not support the evidence of P.W.2.
21. S.I. Ramayan Singh, who appeared as P.W.6 has stated that while he was posted as Sub Inspector in Police Station Thanepur, District Gonda on 05.09.2011, on the written information of Awadhesh Kumar Tiwari, he had reached in the village Mahesh Bhari at 12:15, where the dead body of the deceased Smt. Shail Kumari, wife of Mata Prasad Mishra was present. He had prepared the inquest report and proved the same, which is Ex. Ka-7. He has stated in his cross examination that on the information given by Awadhesh Kumar Tiwari, he had conducted the inquest of the dead body. In the said information, sudden death and that the body is lying on the door, was stated. There was no allegation against anybody in the report in regard to the death of the deceased. The members of the inquest report had also stated about sudden death. At the time of inquest, the husband of the deceased was also present. It has also been stated that during preparation of the inquest report also, nobody had levelled any allegation against the appellant, which is also apparent from the inquest report.
22. The instant prosecution is based mainly on the evidence of P.W.2, who is said to be an eye witness, because the F.I.R. has also been lodged on the information given by him to his father. Thus, he can be said to be 'star witness' or 'sterling witness' in the matter, on the testimony of whom, the fate of the prosecution was dependent. He was aged about 10-11 years at the time of evidence and a child of 9-10 years old at the time of incident. The testimony of such star witness, who was a minor child of 9-10 years also at the time of incident should be such that going through the same, the court can come to the conclusion that the accused is liable to be convicted and there should be no inconsistency in his testimony in itself or with the other witnesses, failing which his testimony would fail and the conviction cannot be based on the same. The evidence of such witness is required to be evaluated carefully.
23. The Hon'ble Supreme Court in the case of Rai Sandeep Alias Deeput versus State (NCT of Delhi); 2012) 8 SCC 21 has held that the "Sterling Witnesss" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. The relevant paragraph 22 is extracted hereinbelow:-
"In our considered opinion, the sterling witness should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a sterling witness whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
24. The Hon'ble Supreme Court, in the case of Digamber Vaishnav & Anr. versus State of Chhattisgarh; 2019 (4) SCC 522, has held that the evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring, therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. The relevant paragraphs 22 and 23 are extracted hereinbelow:-
"22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law.
23.In Alagupandi alias Alagupandian v. State of Tamil Nadu; (2012) 10 SCC 451, this Court has emphasized the need to accept thetestimony of a child with caution after substantial corroboration before acting upon it. It was held that:
"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
25. Adverting to the facts of the case, it is apparent that there is material contradiction in the evidence of P.W.1 and P.W.2 and looking to the evidence of P.W.2, it is apparent that either he was not present on the spot at the time of alleged incident or he is lying being tutored and his testimony does not inspire confidence. The F.I.R. has been lodged by the brother of the deceased, who has some enmity with his brother-in-law in connection with the exchange of certain money, which could not be ruled out on account of the fact that only he has lodged the F.I.R. and appeared in evidence alongwith his son and none of the family members of the deceased including her mother have even levelled any allegation against the appellant, what to say of lodging the F.I.R. or appearing in evidence. The complainant is also a witness to the recovery of pillow, whereas neither the F.I.R. nor the evidence of P.W.1 and P.W.2 discloses about use of pillow for pressing the mouth of the deceased and no evidence of use of same have been found on it. Though the complainant was not present at the time of incident but as admitted by the Investigating Officer, who appeared as P.W.4, the investigation was conducted and place of incident was inspected and the site plan was prepared on his pointing out but without considering it all the trial court has passed the impugned judgment and order. Thus, this Court is of the view that in the instant matter, neither investigation has been conducted appropriately nor the learned trial court has passed the impugned judgement of conviction and order of sentence after considering and dealing with the evidence and material on record appropriately, whereas as discussed above, the prosecution has failed to prove his case beyond doubt. The learned trial court has also failed to consider the evidence of D.W.1, who is daughter of the deceased, who has stated that the appellant was not present at the place of incident in the night of the incident and the complainant had some quarrel with the appellant for some time and in her memory he had not come to their house and P.W.2 was not at the place of incident in the said night and nothing could be extracted from her in cross-examination, which may create any doubt about her testimony. Thus, this Court is of the view that the impugned judgment and order is not sustainable in the eyes of law and liable to be set aside.
26. The appeal is, accordingly, allowed. The impugned judgment and order dated 27.09.2013 passed in Session Trial No.19/2012; State versus Mata Prasad Mishra by the Special Judge, (E.C.) Act, Gonda arising out of Case Crime No.390/2011, under Section 302 of Indian Penal Code (hereinafter referred as I.P.C.), Police Station Dhanepur, District Gonda is hereby set aside. The appellant is acquitted.
(Rajeev Singh,J.) (Rajnish Kumar, J.)
Order Date:12.09.2025/Akanksha Sri/-
