# Azad Khan v. State of U.P

- **Citation:** (2025) 12 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Appeal No. 5162 of 2007
- **Bench:** J.J. Munir, Sanjiv Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azad-khan-v-state-of-u-p-52803
- **Pages:** 10

## Text

1160 INDIAN LAW REPORTS ALLAHABAD SERIES

"19. ... the Court is of the opinion
that the prosecution had miserably failed to
prove the entire chain of circumstances
which would unerringly conclude that
alleged act was committed by the accused
only and none else. Reliance placed by the
learned advocate Mr Mishra for the State
on Section 106 of the Evidence Act is also
misplaced, inasmuch as Section 106 is not
intended to relieve the prosecution from
discharging its duty to prove the guilt of
the accused."

 (Emphasis supplied)

The prosecution failed to prove the
presence of the appellant at the scene of the
crime or that he was last seen with the
deceased. There is no evidence to prove
that the gun shot wounding the deceased
was fired from the pistol recovered at the
instance of the appellant and not the other
pistol. Both the pistols were of the same
make. Prosecution failed to prove the
motive for murder. In the circumstances,
we are not able to persuade ourselves that
the burden to prove the circumstances of
the death of the deceased shifted on the
appellant under Section 106 of the
Evidence Act.

For all the aforesaid reasons, we hold
that the prosecution has not been able to
prove, beyond, doubt the appellant guilty of
the charge either under Section 302 IPC or
Section 25 Arms Act.

The appellant has already undergone
actual imprisonment for more than 9 years
as as on date.

The appeal is allowed.

The
judgment
and
order
dated
19.4.2019 passed by the Sessions Judge,
Auraiya in Sessions Trial No. 249 of 2011
registered under Sections 498-A, 304-B,
201, 404/411, 302/149 IPC and Section 4
Dowry Prohibition Act so far as it convicts
the appellant under Section 302 IPC and
also in Session Trial No. 250 of 2011 so far
as it convicts the appellant under Section
25 of the Arms Act are, hereby, set-aside.
Consequently, the sentences awarded to the
appellant, as noted earlier, in Session Trial
No. 249 of 2011 and in Session Trial No.
250 of 2011 also stand set-aside. The
appellant is acquitted of the charges in
Sessions Trial No. 249 of 2011 and Session
Trial No. 250 of 2011.

The appellant is in jail and shall be
released forthwith from jail if not detained
in any other case.

Let the present judgment of this Court
be certified to the trial court.

The records of the case along with the
judgment shall be remitted back to the trial
court for necessary action.
----------
(2025) 12 ILRA 1160
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE SANJIV KUMAR, J.

Criminal Appeal No. 5162 of 2007

Azad Khan ...Appellant
Versus
State of U.P. ...Respondents

ISSUE FOR CONSIDERATION
Whether
the
appellant
could
have
been
convicted solely on the basis of his admission is
the statement recorded under section 313
Cr.P.C.
12 All. Azad Khan Vs. State of U.P.
1161
Whether such admission would fall within the
category of evidence.

HEADNOTES
Criminal Law - - Code of Criminal
Procedure (Cr.P.C.), 1973 - Section 207,
304, 313, 437-A, - Indian Penal Code
(IPC), 1860 - Section 395, 397 - Indian
Evidence Act, 1872 - Section 3 -
Constitution of India - Article 21 -
Bharatiya Nagarik Suraksha Sanhita, 2023
- Section 481- Criminal Appeal - against
conviction and sentence under Sections 395 and
397 IPC - FIR - offence of dacoity -
Investigation - Statement recorded - Chargesheet - cognizance and Summing order -
Session Trial - appellant voluntarily submitted
an application of confession of offence - his
case was separated - Special Session Trial -
Charges framed under section 395 and 397 IPC
- admission of guilt - trial court observed that
the confession was conditional - trial proceeded
- statement of appellant under section 313 CrPC
-

convicted
and
sentenced
with
life
imprisonment - Evaluation of Evidences - court
finds that, though the prosecution produced no
substantive evidence beyond a formal witness
proving the FIR and charge-sheet - Trial Court
relied solely on his admission in a Section 313
Cr.P.C. statement - relying on the precedents
(Raj Kumar Singh, Premchand, Ashok Kumar,
Pramod @ Bhoka) held that, such statements
are not substantive evidence under Section 3 of
the Evidence Act and cannot alone sustain
conviction - further, court observed that,
appellant filed multiple confession applications
under fear of being killed, lacked legal aid, and
was denied a fair trial in violation of Article 21
and Section 304 Cr.P.C. - and considering, his
24 years in jail, Court set aside the impugned
conviction and acquitted appellant from all
charges, and ordered his immediate release
subject to execution of a bond under Section
481 BNSS, 2023.(Para - 17, 22, 26, 27, 28, 29,
30)
Appeal Allowed.(E-11)

CASE LAW CITED
Raj Kumar Singh @ Raju @ Batya v. State of
Rajasthan, 2013 (4) SCC (Cri) 812 - Premchand
v. State of Maharashtra, AIR 2023 SC 1487 -
Ashok Kumar v. State of Haryana, AIR 2010 SC
2839
-
Pramod
@
Bhoka
v.
State
of
Chhattisgarh, 2024 (1) C.G.L.J. 233

LIST OF ACTS
Indian Penal Code (IPC) - Code of Criminal
Procedure (CrPC) - Indian Evidence Act, 1872 -
Constitution of India - Bharatiya Nagarik
Suraksha Sanhita, 2023.

LIST OF KEYWORDS
Criminal Appeal - Dacoity - Robbery with
grievous hurt - investigation - charge-sheet -
Fair trial - Special Session trial - Statement
under
Section
313
Cr.P.C.-
Confession
application - Legal aid - acquittal - Fear and
coercion - conviction and sentence - rigorous
imprisonment
-
admission
of
guilt
-
corroborative/incriminating evidence.

CASE ARISING FROM
Case Crime No. 170/2000, P.S. Allau, District
Mainpuri - Special Sessions Trial No. 11-A of
2001.

APPEARANCE OF PARTIES
Counsel for Appellant: - Shri Mr. Yanendra
Pandey, Panel Advocate, High Court Legal
Services Committee.
Counsel for Respondent: - Mr. Shashi Shekhar
Tiwari, Additional Government Advocate.

(Delivered by Hon'ble Sanjiv Kumar, J.)

1. This criminal appeal has been
preferred by appellant, Azad Khan, son of
Turab Khan, resident of Vyoti Katra, Police
Station Allau, District Mainpuri, against the
judgment and order dated 05.02.2002
passed
by
Special
Judge
(D.A.A.)/Additional
Sessions
Judge,
Mainpuri, in Special Trial No. 11-A of
2001, under Sections 395 and 397 of the
Indian Penal Code (in short, 'I.P.C.'), Police
Station Allau, District Mainpuri.

2. By the impugned judgment and
order, the appellant, Azad Khan has been
convicted
and
sentenced
to
undergo
rigorous imprisonment for life for the
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
offence punishable under Section 395
I.P.C., alongwith a fine of Rs.10,000/-. He
has further been sentenced to undergo
seven years' rigorous imprisonment for the
offence punishable under Section 397
I.P.C., alongwith a fine of Rs.10,000/-. In
default of payment of fine, he has been
ordered
to
suffer
further
rigorous
imprisonment for a period of two years.
Both the sentences have been directed to
run concurrently.

3. The brief facts of the case are that
informant, Om Prakash, son of Sri Ram
Pandey, resident of village Katra, Police
Station Allau District Mainpuri lodged a
written
information
(tehrir)
dated
29.10.2000 with the In-charge, Police
Station Allau, alleging therein that on the
said day he was sleeping inside a room in
his house whereas his wife, Kamla Devi
and children were sleeping in the verandah.
His brother, Ram Murti and his wife,
Chandra Kanti were sleeping in another
verandah. His nephew and his wife, Anju,
were asleep in another room. At about
12:20 a.m., 10-15 miscreants entered his
house after climbing down the roof and
battered beating his children. A lantern was
lit in the verandah. Some miscreants kicked
at the door to his room, asking him to open
it saying they were policemen. When he
opened the door, the miscreants caught
hold of him and assaulted him with a lathi,
danda, a country-made pistol, and a gun.
He somehow managed to escape from their
clutches and ran towards the house. The
miscreants assaulted his wife, children, and
his brother's wife. Hearing the hue and cry,
Ramesh Prajapati, Rajendra and other
villagers arrived at the spot and identified
the miscreants by torch light. They
identified Baksa son of Manphool, resident
of Jatpura; another unknown person from
Jatpura; Lalman, Mahesh, and Surendra,
sons of Nathu Ram, residents of village
Panchampur, Police Station Kishni; Vinod
son of Ram Charan, resident of Hadua,
Police Station Bewar; Azad son of Turab
Khan, resident of village Katra and Raj
Kumar, son of Sri Pal, resident of Niharpur.
The miscreants looted cash, jewellery,
besides
bank
and
insurance
papers.
Parshuram, son of Sita Ram, resident of the
same village, was involved in the said
dacoity. During the incident, the miscreants
opened fire, injuring injured Ramesh,
Umesh, and Rajendra, all residents of the
same village, who were taken to the Police
Station.

4. Upon this information, an FIR,
bearing Case Crime No. 170 of 2000, under
Sections 395 and 397 IPC, was lodged at
Police Station Allau, District Mainpuri, on
29.10.2000 at about 2:25 a.m. against
nominated
accused.
Thereafter,
the
investigation
commenced.
The
Investigating Officer recorded statements
of the informant and other witnesses,
inspected the place of occurrence and
prepared a site-plan. He also inspected the
torch and lantern and prepared their
recovery memos.

5.
After
investigation,
the
Investigating Officer filed charge-sheet
under Sections 395 and 397 I.P.C. against
the
seven
accused.
The
concerned
Magistrate took cognizance of the offence
and summoned the accused. They appeared
before the Court, whereupon the learned
Magistrate furnished them copies of the
relevant prosecution papers under Section
207 Cr.P.C. Thereafter, the case was
committed to the Court of Sessions for
trial.

6. The appellant, being under trial,
appeared before the Court of Sessions
12 All. Azad Khan Vs. State of U.P.
1163
alongwith the other co-accused. He moved
a confession application before the Trial
Court, in consequence his case was
separated from the Special Sessions Trial
No. 11 of 2001 and renumbered as Special
Sessions Trial No. 11-A of 2001.

7. The Trial Court framed charges
under Sections 395 and 397 IPC against the
appellant, wherein he admitted his guilt.
The
Trial
Court
observed
that
the
confession was conditional and, therefore,
directed the trial to proceed.

8. The prosecution examined P.W.1,
Constable, Iqbal Singh, who proved the
copy of FIR (Ext. Ka-1) and the chargesheet (Ext. K-2) as secondary witness.

9. The statement of appellant, Azad
Khan, under Section 313 Cr.P.C. was
recorded. In his statement, under Section
313 Cr.P.C., the appellant said that he had
voluntarily
submitted
the
confession
application and admitted his involvement in
the said offence.

10. The learned Trial Court, after
hearing, observed that the accused, Azad
Khan, was one of the members of the
gang of dacoits who committed dacoity
in the night of 29.10.2000 at about 12:20
a.m., at the house of the informant. He
was identified by the informant and
other witnesses by the light of a torch
and
a
lantern.
The
Court
further
observed that the accused has admitted
his guilt and acknowledged that he was
one of the members of the gang who
committed
the
dacoity.
Upon
this
admission, the Court found him guilty of
offence punishable under Sections 395
and 397 I.P.C. and convicted and
sentenced him to the term as indicated
above.

11. We have heard Mr. Yanendra
Pandey, learned Panel Advocate of the
High Court Legal Services Committee for
the appellant and Mr. Shashi Shekhar
Tiwari, learned Additional Government
Advocate for the State and perused the
record.

12. It is submitted on behalf of the
appellant that he has been wrongly
convicted and sentenced by the learned
Trial Court. There was no evidence
adduced by the prosecution in support of its
case. The only witness examined by the
prosecution was a formal witness, who is
not witness of the occurrence. He has
proved the FIR and the charge-sheet. No
witness of fact was examined by the
prosecution in support of the case. The
Trial Court convicted the appellant solely
on the basis of his admission in his
statement recorded under Section 313 of
the Cr.P.C.

13. It is further submitted on behalf of
the appellant that statement of the appellant
under Section 313 Cr.P.C. does not fall
within the purview of evidence under
Section 3 Indian Evidence Act. In absence
of
any
corroborative/incriminating
evidence produced by the prosecution, the
appellant could not have been convicted
solely on the basis of his admission in his
statement under Section 313 Cr.P.C.
Therefore, the impugned judgment and
order is illegal, and the conviction and
sentence awarded to the appellant is liable
to be set aside.

14. In this regard, learned counsel for
the appellant has produced before the Court
the following case laws in support of his
contention: (i) Raj Kumar Singh @ Raju
@ Batya vs. State of Rajasthan, 2013 (4)
SCC (Cri) 812; (ii) Pramod @ Bhoko vs.
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Chhattisgarh, 2024 (1) C.G.L.J.
233; (iii) Premchand vs. The State of
Maharashtra, AIR 2023 SC 1487; and
(iv) Ashok Kumar vs. State of Haryana,
AIR 2010 SC 2839, which will be
discussed in later part of this judgment.

15. Per contra, the learned A.G.A. has
submitted that the appellant had voluntarily
confessed the crime in his statement under
Section 313 Cr.P.C., and, thus the learned
Trial Court has rightly convicted the
appellant based on admission in his
statement under Section 313 Cr.P.C.
Therefore,
there
is
no
illegality
or
irregularity
vitiating
the
impugned
judgment and order, and this appeal has no
merit. It is liable to be dismissed.

16. It is settled law that the burden of
proof lies upon the prosecution to prove
their case beyond reasonable doubt. In the
instant case, the prosecution has examined
P.W.1 alone, Constable Iqbal Singh in
evidence, who is a formal witness. He has
proved the copy of the FIR and the chargesheet
as
secondary
evidence.
The
prosecution has not produced the informant
or any other witness to prove the facts of
the case, in support of the charge. Thus,
technically there is no evidence produced
by the prosecution to prove their case. The
appellant, in his statement recorded under
Section 313 Cr.P.C., has admitted his guilt
and in view of the above, the learned Trial
Court, convicted him for the offences
punishable under Sections 395 and 397
I.P.C.

17. Now the question is whether the
appellant could have been convicted solely
on the basis of his admission in the
statement recorded under Section 313
Cr.P.C. Further, whether such admission
would fall within the category of evidence.
In this regard, learned Counsel for the
appellant has called attention to certain
authorities.

18. In Raj Kumar Singh @ Raju @
Batya (supra), the Supreme Court, after
discussing various authorities in point, has
held that the law on the issue can be
summarized to the effect that a statement
under Section 313 Cr.P.C. is recorded to
meet the requirements of natural justice as
it requires that an accused may be given an
opportunity to furnish an explanation about
the incriminating material which had come
against him in the trial. However, his
statement cannot be made a basis for his
conviction.

19.
In
Premchand
(supra),
the
Supreme
Court
has
held
that
the
explanation furnished by the accused
cannot be considered in isolation but in
conjunction with the evidence adduced by
the
prosecution
and,
therefore,
no
conviction can be premised solely on the
basis of the Section 313 statement(s) and
statements of the accused in the course of
examination under Section 313, do not
constitute evidence under Section 3 of the
Evidence
Act.
The
Supreme
Court
observed in paragraph Nos.14 and 15 as
under:

" 14. A bench of three Hon'ble
Judges of this Court in State of U.P. vs.
Lakhmi; (1998) 4 SCC 336 has extensively
dealt with the aspect of value or utility of a
statement under Section 313, Cr. P.C. The
object of Section 313, Cr. P.C. was
explained by this Court in Sanatan Naskar
vs. State of West Bengal; (2010)8 SCC
249. The rationale behind the requirement
to comply with Section 313, Cr.P.C. was
adverted to by this Court in Reena
Hazarika vs. State of Assam; (2019) 13
12 All. Azad Khan Vs. State of U.P.
1165
SCC 289. Close on the heels thereof, in
Parminder Kaur vs. State of Punjab;
(2020) 8 SCC 811, this Court restated the
importance of Section 313, Cr.P.C. upon
noticing the view taken in Reena Hazarika
(supra) and M. Abbas vs. State of Kerala;
(2001) 10 SCC 103.

15. What follows from these
authorities may briefly be summarized
thus:

a. section 313, Cr. P.C. [clause
(b) of sub-section 1] is a valuable
safeguard in the trial process for the
accused to establish his innocence;

b. section 313, which is intended
to ensure a direct dialogue between the
court and the accused, casts a mandatory
duty on the court to question the accused
generally on the case for the purpose of
enabling him to personally explain any
circumstances appearing in the evidence
against him;

c. when questioned, the accused
may not admit his involvement at all and
choose
to
flatly
deny
or
outrightly
repudiate whatever is put to him by the
court;

d. the accused may even admit or
own incriminating circumstances adduced
against him to adopt legally recognized
defences;

e. an accused can make a
statement without fear of being crossexamined by the prosecution or the latter
having any right to cross-examine him;

f.
the
explanations
that
an
accused may furnish cannot be considered
in isolation but has to be considered in
conjunction with the evidence adduced by
the
prosecution
and,
therefore,
no
conviction can be premised solely on the
basis of the section 313 statement(s);

g. statements of the accused in
course of examination under section 313,
since not on oath, do not constitute
evidence under section 3 of the Evidence
Act, yet, the answers given are relevant for
finding the truth and examining the
veracity of the prosecution case;

h. statement(s) of the accused
cannot be dissected to rely on the
inculpatory part and ignore the exculpatory
part and has/have to be read in the whole,
inter alia, to test the authenticity of the
exculpatory nature of admission; and i. if
the accused takes a defence and proffers
any
alternate
version
of
events
or
interpretation, the court has to carefully
analyze and consider his statements;

j. any failure to consider the
accused's explanation of incriminating
circumstances, in a given case, may vitiate
the trial and/or endanger the conviction. "

20. In Ashok Kumar (supra), the
Supreme
Court,
after
examining
the
essential features of Section 313 Cr.P.C.
and the principles of law enunciated, held
that the object of recording the accused's
statement under Section 313 Cr.P.C. is to
put all incriminating evidence, appearing
against him, so as to provide him an
opportunity to explain him. Section 313(4)
of the Criminal Procedure Code explicitly
provides that the answers given by the
accused may be taken into consideration in
such enquiry or trial and put in evidence for
or against the accused, in any other enquiry
or trial for any other offence, in cases
where such answers may tend to show that
he has committed the offence. In other
words, the use of a statement under Section
313 Cr.P.C. as evidence is permissible
according to the provisions of the Code of
Criminal Procedure, but has its own
limitations. The Courts may rely on a
portion of the statement of the accused and
find him guilty upon a consideration of the
other evidence against him led by the
prosecution. However, statements made
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
under this Section should not be considered
in isolation but in conjunction with
evidence adduced by the prosecution.
Another important caution that Courts have
laid down is that conviction of the accused
cannot be based merely on a statement
made under Section 313 of the Cr.P.C. as it
cannot be regarded as a substantive piece of
evidence.

21. Lastly, in Pramod @ Bhoka
(supra), a similar question arose before
Chhattisgarh High Court as the one here. In
Pramod @ Bhoka also, the appellant had
admitted his guilt at the stage of framing of
charge and again at the stage of recording
of his statement under Section 313 Cr.P.C.
The question before the Court was whether
the admission of guilt by the appellant in
his examination under Section 313 Cr.P.C.
constitutes substantive evidence within the
meaning of Section 3 of the Evidence Act
and what would be the effect of his
admission of guilt in statement under
Section 313 Cr.P.C. The Court considered
various authorities on the point. The
Division Bench of the Chhattisgarh High
Court in Pramod @ Bhoka observed:

29. "The Supreme Court in the
matter of Raj Kumar Singh alias Raju alias
Batya v. State of Rajasthan; AIR 2013 SC
3150 has clearly held that the statement
made under Section 313 of the Cr.P.C.
cannot be made basis for conviction as it is
not subjected to oath and it cannot be
treated as evidence within the meaning of
Section 3 of the Evidence Act, and observed
as under in paragraph 36: -

"36. In view of the above, the law
on the issue can be summarised to the
effect that statement under Section 313
Cr.P.C.
is
recorded
to
meet
the
requirement of the principles of natural
justice as it requires that an accused may
be
given an
opportunity
to
furnish
explanation of the incriminating material
which had come against him in the trial.
However, his statement cannot be made a
basis for his conviction.

His answers to the questions put
to him under Section 313 Cr.P.C. cannot be
used to fill up the gaps left by the
prosecution witnesses in their depositions.
Thus, the statement of the accused is not a
substantive piece of evidence and therefore,
it can be used only for appreciating the
evidence led by the prosecution, though it
cannot be a substitute for the evidence of
the prosecution. In case the prosecution's
evidence is not found sufficient to sustain
conviction of the accused, the inculpatory
part of his statement cannot be made the
sole basis of his conviction. The statement
under Section 313 Cr.P.C. is not recorded
after administering oath to the accused.
Therefore, it cannot be treated as an
evidence within the meaning of Section 3 of
the Evidence Act, though the accused has a
right if he chooses to be a witness, and
once he makes that option, he can be
administered oath and examined as a
witness in defence as required under
Section 315 Cr.P.C.

An adverse inference can be
taken against the accused only and only if
the incriminating material stood fully
established and the accused is not able to
furnish any explanation for the same.
However, the accused has a right to remain
silent as he cannot be forced to become
witness against himself."

.........................................................

31. In the matter of Ashok
Debbarma alias Achak Debbarma v. State
of Tripura; (2014) 4 SCC 747, relying
upon the matter of Mohan Singh v. Prem
Singh; (2002) 10 SCC 236, it has been
12 All. Azad Khan Vs. State of U.P.
1167
held that the statement made in defence by
the accused under Section 313 of the
Cr.P.C. can certainly be taken aid of to
lend credence to the evidence led by the
prosecution, but only a part of such
statement under Section 313 of the Cr.P.C.
cannot be made the sole basis of his
conviction, and observed in paragraphs 24
and 25 as under:

"24. We are of the view that,
under Section 313 statement, if the accused
admits that from the evidence of various
witnesses, four persons sustained severe
bullet injuries by the firing by the accused
and his associates, that admission of guilt
in Section 313 statement cannot be brushed
aside. This Court in State of Maharashtra
v. Sukhdev Singh (1992) 3 SCC 700 held
that since no oath is administered to the
accused, the statement made by the accused
under Section 313 Cr.P.C. will not be
evidence stricto sensu and the accused, of
course, shall not render himself liable to
punishment merely on the basis of answers
given while he was being examined under
Section 313 Cr.P.C. But, sub-section (4)
says that the answers given by the accused
in response to his examination under
Section 313 Cr.P.C. can be taken into
consideration in such an inquiry or trial.
This Court in Hate Singh Bhagat Singh v.
State of Madhya Bharat, AIR 1953 SC
468 held that the answers given by the
accused under Section 313 examination
can be used for proving his guilt as much
as the evidence given by the prosecution
witness. In Narain Singh v. State of
Punjab (1964) 1 CriLJ 730 this Court held
that when the accused confesses to the
commission of the offence with which he is
charged, the Court may rely upon the
confession and proceed to convict him.

25. This Court in Mohan Singh v.
Prem Singh, held that:

"27. The statement made in
defence by the accused under Section 313
CrPC can certainly be taken aid of to lend
credence to the evidence led by the
prosecution, but only a part of such
statement under Section 313 CrPC cannot
be made the sole basis of his conviction."

In this connection, reference may
also be made to the judgments of this Court
in Devender Kumar Singla v. Baldev
Krishan Singla (2005) 9 SCC 15 and
Bishnu Prasad Sinha v. State of Assam
(2007) 11 SCC 467. The above-mentioned
decisions would indicate that the statement
of the accused under Section 313 CrPC for
the admission of his guilt or confession as
such cannot be made the sole basis for
finding the accused guilty, the reason being
he is not making the statement on oath, but
all the same the confession or admission of
guilt can be taken as a piece of evidence
since the same lends credence to the
evidence led by the prosecution."

22. In view of the above legal position,
the Division Bench of Chhattisgarh High
Court held that no conviction can solely be
based on the admission of guilt by the
appellant in his statement under Section
313
Cr.P.C.,
in
absence
of
any
corroborative/incriminating evidence being
led by the prosecution. Accordingly, the
conviction and sentence of the appellant
was set aside.

23. In view of the above discussion,
the explanation furnished by the accused
cannot be considered in isolation but has to
be considered in conjunction with the
evidence adduced by the prosecution and,
therefore, no conviction can be premised
solely on the basis of statement under
Section 313 Cr.P.C.. Statements of the
accused in the course of examination under
Section 313, do not constitute evidence
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 3 of the Evidence Act.
Therefore, it is clear that the admission of
guilt in statement under Section 313
Cr.P.C., alone, cannot be made the basis of
conviction of the appellant in the present
case, in absence of any other incriminating
evidence.

24. Further, it is to be noted that a
perusal of the record of the Trial Court
shows that the appellant moved as many as
seven confession applications between
24.10.2001 (the date of framing of charge)
to 05.02.2002 (date of the judgment) before
the
Court,
and
a
glance
at
these
applications shows that the appellant
expressed fear of being killed by the
informant, in collusion with the Police, as
and when he is released from jail. He
prayed that he be permitted to remain in jail
to save his life. It is noticed that question
no.1, in the statement of the appellant
framed under Section 313 Cr.P.C. by the
Trial Court, was a composite question, to
which the appellant answered in the
affirmative.

25. The above question and its answer
is as follows:

प्रश्न सं० 1- क्या यह आिेदन पत्र
जुमय इकबाल आपने अपनी स्ि़ैच्छा बबना ककसी
दबाि, िय अथिा प्रलोिन के हदया ह़ै। और
आप को जानकारी ह़ै। कक इस ब्यान से आपकी
सजा हो सकती ह़ै?

उत्तर- 1- जी हॉ ।

26. In view of the above, the
admission of the appellant under Section
313 Cr.P.C., though voluntary, cannot be
said to be free from any fear or pressure.
This aspect about the appellant moving
different confession applications out of fear
to save his life, before the Trial Court, has
gone unnoticed by the Trial Judge while
reaching his conclusions. It is also relevant
to note that the record does not show that
the appellant had the assistance of an
Advocate to defend. Also, there is nothing
to disclose that he was offered and
provided any legal aid, which was a
violation of his right to fair trial guaranteed
under Article 21 of the Constitution,
besides being a violation of Section 304
Cr.P.C. Thus, the appellant was also
deprived of a fair trial in this case.

27. Thus, the sad part of the matter is
that the appellant is incarcerated in jail for
almost 24 years, in a case in which there
was no evidence against him and his
admission of guilt in his statement under
section 313 Cr.P.C. was not only under fear
to save his life from the informant, which
went unnoticed by the Trial Court, but also,
if treated as one made without fear, not
sufficient to found a conviction and
sentence, in absence of any incriminating
evidence adduced by the prosecution.

28. In view of the above discussion,
we come to the conclusion that the learned
Trial Court has erred in convicting the
appellant, as the prosecution has miserably
failed to connect the appellant with the
offence in question and to prove the
offence beyond reasonable doubt. Thus, the
conviction of the appellant solely on the
admission of guilt in his statement under
Section 313 Cr.P.C. is not sustainable.

29. In view of the above, the instant
criminal appeal is allowed. We set aside
the impugned judgment and order dated
05.02.2002 passed by the Trial Court and
acquit the appellant, Azad Khan of the
charge under Sections 395 and 397 IPC.
12 All. Maloo Vs. State Of U.P.
1169

30. The appellant, Azad Khan is in
jail. He is directed to be released forthwith,
if not wanted in any other case.

31.
Before
being
released,
the
appellant shall execute a personal bond in
the sum of Rs.20,000/- under Section 481
of the Bharatiya Nagarik Suraksha Sanhita,
2023 (corresponding to Section 437-A of
the Code of Criminal Procedure, 1973) for
his appearance, in the event of an appeal
being preferred against his acquittal.

32. Let a copy of this Judgment and
order be sent to the Trial Court concerned,
forthwith, alongwith the Trial Court record,
for information and necessary compliance.
----------
(2025) 12 ILRA 1169
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Appeal No. 11855 of 2025

Maloo ...Appellant
Versus
State of U.P. ...Respondent

ISSUE FOR CONSIDERATION
Whether continuation of criminal proceedings
against the appellant, arising out of land
allotments made in 1997 and FIR lodged in
2022, amounts to abuse of process of law.

Whether invocation of IPC offences and Section
3(1)(f) of the SC/ST Act is legally sustainable in
absence of specific allegations, overt acts, or
caste-based intent.

Whether the cognizance/summoning order was
passed mechanically without judicial application
of mind.

HEADNOTES
Criminal Law - Code of Criminal Procedure
(CrPC) - Section 161, 14-A, 14-A(1) -
Indian Penal Code (IPC) - Sections 420,
467, 468, 471, 384, 120-B - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(1)(f) -
Criminal Appeal under section 14-A(2) of the
SC/ST
Act
-
assailing
the
charge-sheet,
summoning order as well as the entire criminal
proceeding - criminal proceedings arising out of
alleged irregularities in land allotments made in
1997 - FIR lodged in year 2022 - delay of 25
years - the appellant was not named in the FIR
- no specific role or overt act was attributed to
him - investigation - plea taken that all the
allegations
were
vague,
omnibus,
and
essentially civil/revenue in nature - court finds
that - invocation of IPC offences and Section
3(1)(f) of the SC/ST Act was held to be
mechanical and unsupported
by statutory
ingredients, and the summoning order was
passed without judicial application of mind -
further, observed that criminal prosecution
cannot be used to circumvent or replace
statutory remedies available under revenue law
- relying on precedents such as Bhajan Lal,
Anand Kumar Mohatta, Hitesh Verma, Pepsi
Foods, and recent Supreme Court rulings, court
held that, continuation of prosecution would
amount to abuse of process and miscarriage of
justice, and therefore quashed the cognizance
order,
charge-sheet,
and
entire
criminal
proceedings against the appellant.(Para - 16,
22, 26, 31, 32, 33, 34)

Appeal Allowed. (E-11)

CASE LAW CITED
State of Haryana v. Bhajan Lal (1992 Supp (1)
SCC 335) - Anand Kumar Mohatta v. State (NCT
of Delhi) (2019) 11 SCC 706 - Indian Oil
Corporation v. NEPC India Ltd (2006) 6 SCC 738
- Vesa Holdings Pvt. Ltd. v. State of Kerala
(2015) 8 SCC 293 - Hitesh Verma v. State of
Uttarakhand (2020) 10 SCC 710 - Pepsi Foods
Ltd. v. Special Judicial Magistrate (1998) 5 SCC
749 - Iqbal v. State of U.P. (2023) 8 SCC 734 -
Anukul Singh v. State of U.P. (2025) - Konde
Nageshwar Rao v. A. Srirama Chandra Murty
(2025) - Randheer Singh v. State of U.P. (2025).

LIST OF ACTS