# Abdul Husain @ Soni v. State of U.P

- **Citation:** (2005) 2 ILRA 544
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-24
- **Case number:** Criminal Appeal No. 3980 of 2002
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-husain-soni-v-state-of-u-p-40485
- **Pages:** 6

## Headnote

A.G.A.

Practice
of
Procedure-offence
under
Section 307/34 IPC Trail Court passed
conviction order based upon pleading
guilty to the charged offence-Court has
to find out-such statement is voluntary,
unqualified, unambiguous and untendedaccused has not disclosed about the
target to when intended to kill to any
particular person, individual or group of
person-Period in the air towards sky
with intent to commit murder not
amount the commission of offence of
attempt to murder-Trail court is duty
bound to observe all precautions to
ascertain that the admission of guilt is
wholly voluntary and untainted. Heldconviction
can
not
sustained-case
remanded for fresh Trail in accordance
as the law.

Held: Para 11

Besides the aforesaid lacuna appearing
in the case I further find that these 4-5
lines statement of the accused has been
2 All] Abdul Husain @ Soni V. State of U.P.

 545
recorded quite cursorily by the trial
court. Upon the basis of this statement
only the court had awarded punishment
after holding him guilty, of rigorous
imprisonment of long seven years. This
demonstrates to the fact that the court
below has taken the whole matter with
extreme callousness and no serious
thought has been given for recording the
conviction of appellant. The court in such
cases is duty bound to observe all
precautions for the purposes to ascertain
that the statement about the admission
of guilt given by the accused is wholly
voluntary and untainted. In order to test
that such statement of admission of guilt
is without any pressure etc. the court
has to put collateral questions to such
accused and find out that such admission
of guilt is an intelligent admission. The
court has to caution the accused also
that the statement of admission of guilt
so given by him would render and make
him liable for commission of the offence
which might result into award of severe
punishment against him by the court. If
these tests have not been observed by
the court, the statement so recorded,
cannot be treated as voluntary and
intelligent admission of guilt.
Case law discussed:
J.T. 1992 (4) SC 73
1995 NUC-(Alld.) (Vol.42)
1977 Crl.LJ 738

## Text

544 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
 Act of Mawana Sugar Works, Mawana,
Meerut can not be held to be covered
under the "expression" of ''employee' as
given in definition clause of the Act even
if by the order of Wage Board dated 27th
November, 1970 the gratuity payable to
the workmen or employees of factory has
been made payable to the staff of the
educational institution also as contained
in Annexure-17 of the writ petition. Thus
being a retired teacher of the institution
the petitioner is not entitled for gratuity
under the provisions of the Act.

12. Thus on the basis of discussion
made herein before the order passed by
appellate authority under the provisions of
the Act impugned in the writ petition is
perfectly justified in given facts and
circumstances of the case and cannot call
for
any
interference
under
writ
jurisdiction under Article 226 of the
Constitution of India. Since this court has
been called upon to decide the validity
and
legality
of
orders
passed
by
Controlling
Authority
and
Appellate
Authority under the provisions of Act and
not the whole entitlement of the petitioner
for payment of gratuity under any other
statute or law if applicable to such
teachers, therefore, I should not be
understood
to
have
decided
the
entitlement of petitioner in respect of
payment of gratuity to the petitioner, if
she is entitled for payment of gratuity
otherwise in any other statute or law
applicable to her. Therefore, observations
made herein above will not preclude the
petitioner for claiming gratuity benefits, if
the petitioner is otherwise entitled for the
same under any other law, enactment or
rules applicable to the teachers like the
petitioner at appropriate forum. Thus in
view of the aforesaid discussions and
observations made, the writ petition fails
hence dismissed.

13. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.05.2005

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Criminal Appeal No. 3980 of 2002

Abdul Husain @ Soni

...Appellant
Versus
State of U.P.

 ...Respondent

Counsel for the Appellant:
Sri P.K. Singh (Amicus curiae)

Counsel for the Respondents:
A.G.A.

Practice
of
Procedure-offence
under
Section 307/34 IPC Trail Court passed
conviction order based upon pleading
guilty to the charged offence-Court has
to find out-such statement is voluntary,
unqualified, unambiguous and untendedaccused has not disclosed about the
target to when intended to kill to any
particular person, individual or group of
person-Period in the air towards sky
with intent to commit murder not
amount the commission of offence of
attempt to murder-Trail court is duty
bound to observe all precautions to
ascertain that the admission of guilt is
wholly voluntary and untainted. Heldconviction
can
not
sustained-case
remanded for fresh Trail in accordance
as the law.

Held: Para 11

Besides the aforesaid lacuna appearing
in the case I further find that these 4-5
lines statement of the accused has been
2 All] Abdul Husain @ Soni V. State of U.P.

 545
recorded quite cursorily by the trial
court. Upon the basis of this statement
only the court had awarded punishment
after holding him guilty, of rigorous
imprisonment of long seven years. This
demonstrates to the fact that the court
below has taken the whole matter with
extreme callousness and no serious
thought has been given for recording the
conviction of appellant. The court in such
cases is duty bound to observe all
precautions for the purposes to ascertain
that the statement about the admission
of guilt given by the accused is wholly
voluntary and untainted. In order to test
that such statement of admission of guilt
is without any pressure etc. the court
has to put collateral questions to such
accused and find out that such admission
of guilt is an intelligent admission. The
court has to caution the accused also
that the statement of admission of guilt
so given by him would render and make
him liable for commission of the offence
which might result into award of severe
punishment against him by the court. If
these tests have not been observed by
the court, the statement so recorded,
cannot be treated as voluntary and
intelligent admission of guilt.
Case law discussed:
J.T. 1992 (4) SC 73
1995 NUC-(Alld.) (Vol.42)
1977 Crl.LJ 738

(Delivered by Hon'ble Umeshwar Pandey, J.)

1. Heard Sri Prashant Kumar Singh,
learned Amicus Curiae appearing for the
accused-appellant and the learned A.G.A.

2. This jail appeal arises out of the
judgment and order dated 30th August,
2001 passed by the Addl. Sessions Judge
(Court No.4), Allahabad.

3. The appellant was charged for the
offence punishable under Section 307
read with Section 34 I.P.C. on the
allegations that on 17.10.1994 the police
had received information from certain
informer (Mukhbir) that two persons were
sitting in suspicious state at the railway
crossing near Peeer Baba Temple. On this
information the police party, headed by
the complainant Umesh Chandra Pandey,
proceeded for the spot. The police
informer was also accompanying them.
On their arrival near the aforesaid temple,
the informer (Mukhbir) indicated the
police party towards the two miscreants,
who on getting the clue of the arrival of
police became alert.

4.

After
finding
themselves
surrounded by the police, they took out
their country-made pistols. The police
party warned them and asked them to
stand up, but the miscreants started firing
and running towards the railway crossing.
While running also the accused persons
fired at the police party, but no one was
injured. The police apprehended them at
the railway line and on enquiry they
disclosed their names as Abdul Husain @
Soni (the appellant) and the second one
identified himself as Gulshan. They were
taken in custody and on search illicit arms
and ammunitions were found from their
possession. They were brought to the
police station and on the basis of the
recovery memo F.I.R. was lodged. After
completion of the investigation chargesheet
was
submitted
in
the
case,
whereupon the accused were committed
to the court of Sessions for trial for the
offence punishable under Section 307/34
I.P.C.

5. The appellant-accused Abdul
Husain @ Soni was charged for the
offence punishable under Section 307/34
I.P.C. along with other accused and they
pleaded not guilty to the charge and
claimed to be tried. Later on the appellant
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
Abdul
Husain
@
Soni
moved
an
application before the trial Judge on
20.7.2001 stating that he was pleading
guilty to the charged offence and he may
be pardoned. On the basis of this plea of
being guilty taken by the appellant in his
aforesaid application before the trial
court, the Addl. Sessions Judge recorded
his statement on 30.8.2001. The English
rendering of the same is as below:

"Stated on oath that on 17.10.99 at
about 18.50 hours at A.D.C. Railway
Crossing in the circle of Police Station
Kydganj, I, with intention to cause
murder, fired from my pistol, but it did
not hit anyone. I may be punished
suitably."

6. On the aforesaid plea of the
accused the trial Judge held that the
offence punishable under Section 307
read with Section 34 I.P.C. was fully
established and he accordingly convicted
him for the offence and sentenced him to
undergo rigorous imprisonment for a term
of seven years and also to pay a fine of
Rs. 10,000/-. The accused Abdul Husain
@ Soni thereafter preferred this appeal
from jail which has been heard at length
and the record of the trial court has also
been perused.

7. This conviction is based purely on
the plea of the accused admitting himself
as guilty of the charged offence. No other
material available on the record has been
proved nor taken into consideration by the
trial Judge for recording his conviction.
The learned Amicus Curiae appearing in
this case has very precisely submitted that
in such cases where the accused pleaded
guilty upon which his conviction has been
recorded the court has to be very
circumspect while passing the conviction
order and awarding the sentence. The
court has to be satisfied that the admission
of the guilt made by the accused in his
statement given before it is voluntary,
unqualified, unambiguous and untainted.
It is further to be found out if the
statement so given for pleading the guilt
of the offence covers all the ingredients,
which are required to be proved by the
prosecution. In case the ingredients are
not complete, the court ought not to
record conviction of the accused, rather it
should direct recording of the evidence of
the prosecution in the case and to proceed
with the normal course of trial. The
learned
Amicus
Curiae
has
further
submitted that in the present case while
giving statement of pleading to the guilt
the accused appellant has not disclosed as
to who was his target and whom he
intended to murder. This ambiguity
appearing in the statement being so
obvious the court below should not have
treated it as a complete statement of plea
of guilt for recording conviction for the
offence under Section 307/34 I.P.C. The
murder is to be intended in a case for
attempt to murder. If the intention of
commission
of
murder
is
not
demonstrated, the offence under Section
307 I.P.C. would not be made out. In the
aforesaid context the learned Amicus
Curiae has cited the case law of State of
Maharashtra through C.B.I. Vs. Sukhdev
Singh @ Sukha & another, reported in JT
1992 (4) SC 73 and Smt. Legeshri Vs.
The State, AIR 1955 NUC (Allahabad)
2749 (Vol. 42). He has also cited an
American case Robert J. Henderson Vs.
Timothy G. Morgan, 1977 Cr. L.J. 738
(1977-49 L. Ed. 2d 108).

8. In the present case the trial court
with the above referred statement of the
accused has though recorded conviction
2 All] Abdul Husain @ Soni V. State of U.P.

 547
of the appellant, but it appears that it has
not observed the due care which ought to
be taken by the court while recording a
confessional statement. If the accused
intends to advance a plea of the guilt to
the charged offence, the court is required
to take certain precautions before it
records the conviction in that case. It has
to find out that such admission is clear,
unequivocal and unambiguous. Besides,
the court must also find out that the
statement so given by the accused for
pleading himself as guilty is sufficient to
cover all the ingredients of the offence.
Only
upon
such
unqualified
and
unconditional statement, the court has to
record the conviction and not otherwise.
In the aforesaid case of Sukhdev Singh
(supra) the Hon'ble Apex Court held that
the court has to find out if the plea of such
admissions of guilt actually tantamount to
an admission of all the facts constituting
the offence. The observations of the
Hon'ble Supreme Court are, "It is,
therefore, essential that before accepting
and acting on the plea the Judge must
feel satisfied that the accused admits
facts or ingredients constituting the
offence. The plea of the accused must,
therefore, be clear, unambiguous and
unqualified and the Court must be
satisfied that he has understood the
nature of the allegations made against
him and admits them. The Court must
act with caution and circumspection
before accepting and acting on the plea
of guilt. Once these requirements are
satisfied the law permits the Judge trying
the case to record a conviction based on
the plea of guilt."

9. In the light of the aforesaid
observations of the Hon'ble Apex Court if
the plea of the accused taken in the
statement given before the trial court is
tested it becomes obvious that the
aforementioned statement of the applicant
does not contain the fact as to who was
intended by him as his target of murder.
The statement of the accused recorded on
30.8.2001 is only to the effect that he
fired with an intention to kill which did
not hit anybody. It is quite clear that the
accused has not disclosed his target whom
he intended to shoot and kill. Section 300
of the I.P.C. gives the definition of
murder and for convenience it may be
reproduced as below:

"300. Murder. - Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is
caused is done with the intention of
causing death, or-

2ndly. - If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of
the person to whom the harm is caused,
or-

3rdly. - If it is done with the intention of
causing bodily injury to any person and
the bodily injury intended to be inflicted
is sufficient in the ordinary course of
nature to cause death, or-

4thly. - If the person committing the act
knows that it is so imminently dangerous
that it must, in all probability, cause death
or such bodily injury as is likely to cause
death, and commits such act without any
excuse for incurring the risk of causing
death or such injury as aforesaid."

10. There are four conditions, either
of which if admitted or demonstrated on
record makes the act of the accused
covered within the definition of murder.
In the present case the appellant was
548 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
charged for the attempt of murder. If his
act so alleged is not such whereby either
of the aforesaid conditions of the murder
is covered, it will not amount to an
offence of attempt to murder. For
committing the offence of attempt to
murder the offender has to either cause
the injury with intention to cause death or
he knows that by the act so done he is
likely to cause death of the person
targeted or the act done with intention to
cause bodily injury to any person intended
to be inflicted is sufficient in ordinary
course to cause death or he knows that the
act is so imminently dangerous that it
must, in all probabilities, cause death or
such bodily injury as is likely to cause
death and he commits such act without
any excuse for incurring the risk of
causing death or such bodily injury to
such individual or group of individuals.
The appellant accused if has stated that he
fired with an intention to commit murder,
such statement does not admit to the fact
that any particular person, individual or
group of persons was there whom he
intended to murder. A statement given by
the accused that he fired in air towards the
sky with an intention to commit murder,
will not amount to commission of an
offence of attempt to murder. The words
and the sense which appear from the
statement of accused given before the
court by way of pleading guilt of the
charged offence have to be weighed very
meticulously and precisely by the courts
before the conviction is recorded against
him. In this case as has been submitted by
the learned Amicus Curiae, the statement
of admission of guilt given before the
court does not disclose the ingredients of
the offence and as such the court should
not have recorded his conviction. I find
sufficient force in such arguments of the
learned Amicus Curiae. The accused has
not disclosed the person whom he
intended to kill and thus, to commit his
murder. This statement of the appellant
should not have been treated as sufficient
by the trial court to record his conviction
under the aforesaid offence punishable
under Section 307/34 I.P.C.

11. Besides the aforesaid lacuna
appearing in the case I further find that
these 4-5 lines statement of the accused
has been recorded quite cursorily by the
trial court. Upon the basis of this
statement only the court had awarded
punishment after holding him guilty, of
rigorous imprisonment of long seven
years. This demonstrates to the fact that
the court below has taken the whole
matter with extreme callousness and no
serious thought has been given for
recording the conviction of appellant. The
court in such cases is duty bound to
observe all precautions for the purposes to
ascertain that the statement about the
admission of guilt given by the accused is
wholly voluntary and untainted. In order
to test that such statement of admission of
guilt is without any pressure etc. the court
has to put collateral questions to such
accused and find out that such admission
of guilt is an intelligent admission. The
court has to caution the accused also that
the statement of admission of guilt so
given by him would render and make him
liable for commission of the offence
which might result into award of severe
punishment against him by the court. If
these tests have not been observed by the
court, the statement so recorded, cannot
be treated as voluntary and intelligent
admission of guilt. Such circumspection
and caution has to be necessarily observed
by the court before accepting and acting
up on the plea of guilt. The observance of
these essential formalities for assessing
2 All] Abdul Husain @ Soni V. State of U.P.

 549
that the plea of guilt given is wholly
voluntary and with full intelligence at the
command of the accused, if has not been
done by the court, such plea of guilt
recorded cannot be treated as sufficient
for recording conviction of the accused.
 In the present case the learned trial Judge
has failed to observe all these formalities
and in a slip-shod manner has accepted
the laconic statement of the accused
recorded as admission of the guilt, upon
which he has based the impugned
judgment of conviction and sentence. In
these circumstances, the judgment under
challenge in the present appeal cannot
sustain in the eye of law and has to be set
aside.

12. In result, the appeal is allowed.
The impugned judgment and order dated
30.8.2001 is set aside.

13. The case is sent back to the trial
court for being taken up for trial and to
proceed in accordance with law. It shall,
however, be open to the trial court not to
reject any fresh plea of guilt by way of
admission of the offence if given by the
accused-appellant, but it shall observe all
these formalities before recording the
admission of guilt of the accused and
before
accepting
it
for
recording
conviction against him.

14. Office is directed to send back
the record at once to the trial court where
the case shall proceed in accordance with
law.
Appeal Allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 37601 of 2000

Smt. Shail Shukla

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.B. Singhal

Counsel for the Respondents:
Sri R.K. Tiwari
S.C.

U.P. Police officers of the Subordinate
Rank (Punishment of Appeal) Rules
1991-rule-14-readwith Constitution of
India,
Article
311
(2)-Service
Lawdisproportionate punishment-Petitioner
a lady police constable-main charge not
wearing proper uniform while on dutyPetitioner given her explanation due to
injuries sustained in her body due to
accident-could not wear the uniformeven then being member of police force
could not be dispense with the wearing
of proper uniform-No prior permission
from superior authority produced-heldguilty of charges-but punishment of
dismissal
appears
to
harsh
and
disproportionate-dismissal
order
quashed-direction
issued
for
lesser
punishment.

Held: Para 21 & 22

In so far as the other charge with regard
to not wearing proper uniform while on
duty even though the petitioner had
tendered explanation that on account of
injuries sustained in her body in the
accident she could not wear the uniform
I am of the view that even though the
inquiry has been held to be vitiated but
still as the petitioner has not been able