# Desh Raj Singh v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023
- **Case number:** Criminal Appeal U/S 372 CR.P.C. No. 7726 of 2010
- **Bench:** Dharnidhar Jha, Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/desh-raj-singh-v-state-of-u-p-ors-42442
- **Pages:** 4

## Headnote

104 INDIAN LAW REPORTS ALLAHABAD SERIES
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 372 - Indian Penal
Code,1860 - Sections 34, 201 & 302 -
Indian Arms Act, 1959- Sections 4 & 25-
Criminal Appeal - filed by informant - against
acquittal of accused - FIR - offence of Murder -
Evidence and Motive - Recovery of weapon -
Court finds that, the evidence provided by the
prosecution
witnesses
was
insufficient
to
establish the guilt of the accused - the court
also noted that the motives presented, including
a land dispute and an alleged illicit relationship,
were not convincingly established - additionally,
the recovery of a knife was doubted due to the
chance of fabrication destroys the evidence -
consequently, the appeal was dismissed, and
the acquittal was upheld. (Para - 12, 13)

Appeal Dismissed. (E-11)

## Text

9 All. Desh Raj Singh Vs. State of U.P. & Ors.
103
of victim of crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be balanced.
The judicial trend in the country has been
towards striking a balance between reform and
punishment. The protection of society and
stamping out criminal proclivity must be the
object of law which can be achieved by
imposing appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order and
peace, should effectively meet challenges
confronting the society, as society could not long
endure and develop under serious threats of
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence. Thus, the criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective. At the same time,
undue harshness should also be avoided keeping
in view the reformative approach underlying in
our criminal justice system.

27. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no accused
person is incapable of being reformed and
therefore, all measures should be applied to give
them an opportunity of reformation in order to
bring them in the social stream.

28. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose punishment
keeping in view the 'doctrine of proportionality'.
It appears from perusal of impugned judgment
that sentence awarded by learned trial court for
life term is very harsh keeping in view the
entirety of facts and circumstances of the case
and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice system. We may also record that while
going through the factual scenario the appellant
cannot be said to have a motive or intention to do
away with the deceased who was his relative.
The motive is not spelt out from any of the
 evidence.

29. Therefore, on totality of the facts and
circumstance and the oral testimony of the eyewitnesses coupled with the medical evidence
permit us to convert the conviction of the
accused-appellant from Section 302 I.P.C. to
Section 304 Part-I I.P.C. The fact that the
accused-appellants were incarcerated in jail for
more than 11 years and six years respectively, the
sentence is reduced to the period already
undergone. Fine of Rs. 10000/- to be deposited
within four weeks of release from incarceration.
If fine is not deposited within four weeks they
shall be lodged in jail to undergo default
sentences of three months.

30. In view of the above, this criminal
appeal is partly allowed. Record and proceedings
be sent back to the Court below forthwith.
----------
(2023) 9 ILRA 103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2012

BEFORE

THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Criminal Appeal U/S 372 CR.P.C. No. 7726 of
2010

Desh Raj Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vikas Sharma, Mamta Singh

Counsel for the Respondents:
104 INDIAN LAW REPORTS ALLAHABAD SERIES
Govt. Advocate

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 372 - Indian Penal
Code,1860 - Sections 34, 201 & 302 -
Indian Arms Act, 1959- Sections 4 & 25-
Criminal Appeal - filed by informant - against
acquittal of accused - FIR - offence of Murder -
Evidence and Motive - Recovery of weapon -
Court finds that, the evidence provided by the
prosecution
witnesses
was
insufficient
to
establish the guilt of the accused - the court
also noted that the motives presented, including
a land dispute and an alleged illicit relationship,
were not convincingly established - additionally,
the recovery of a knife was doubted due to the
chance of fabrication destroys the evidence -
consequently, the appeal was dismissed, and
the acquittal was upheld. (Para - 12, 13)

Appeal Dismissed. (E-11)

(Delivered by Hon'ble Dharnidhar Jha, J.
&
Hon'ble Ramesh Sinha, J.)

1. We have heard the learned counsel
appearing on behalf of the informant who
has brought into question the judgment of
acquittal dated 28.10.2010 passed by the
learned Additional Session Judge, Court no.
4, Bulandsahar in Session Trials No. 91 of
2009 & 90 of 2009. By the impugned
judgment, the learned trial judge acquitted
the two respondents of charges under
Sections 302/34, 201 I.P.C. and 25/4 of the
Indian Arms Act.

2. The prosecution case was that the
deceased, the son of the informant,namely,
Dinesh, had gone to take tuition but he did
not come back and subsequently his dead
body was found lying near a fodder store
where his sleepers and other belongings
were also found. His throat had been slit to
murder him. This information was lodged
against unknown accused persons on
27.11.2008.

3. The second information was lodged
by the informant, after being dictated to his
brother, on 28.11.2008 in which it was
specifically
alleged
that
the
accused
persons, namely, Arvind, Naresh alongwith
Lalit Kumar had committed the murder of
his son and the two persons, namely,
Gajendra (not examined) and Than Singh
(P.W.-2) had seen them coming from the
place of occurrence.

4. The Doctor found the corresponding
injuries on the throat of the deceased and
there could not be any doubt that injury on
the throat of the deceased and another wound
somewhere own the scrotum of the deceased
had been caused by a weapon like a knife.
Thus, leaving no doubt in the manner of
commission of the murder of the deceased
that he had been assaulted with some sharp
cutting weapons to be killed.

5. During the course of the trial, P.W.-
1, the informant, himself came to support
the report but as may appear from the very
F.I.R., in the court also, he was not
projecting himself as an eye witness. He
was placing the same facts on account of
deriving
the
knowledge
about
the
movement of two accused persons namely,
Naresh and Arvind Kumar from the place
of occurrence and just around the time of
occurrence on 27.11.2008.

6. Out of the two persons, namely,
Than Singh and Gajendra Singh, the later
did not turn up for his evidence. But, Than
Singh stated that he had seen the accused
persons coming from that direction and
when he wanted to know the purpose they
were simply asked to mind his business and
went inside their house.

7. The learned trial Judge has held
that the fact that the accused persons who
9 All. Desh Raj Singh Vs. State of U.P. & Ors.
105
were seen coming from the place of
occurrence had committed murder which
fact was stated by P.W.2 in his evidence,
had not been stated by him during the
course of investigation and he had merely
stated that they had been merely seen
moving around the place of occurrence.

8. We are of the view that merely
being seen somewhere around the place of
occurrence or coming from that side, may
not be fit enough to raise an inference of
culpability unless some other incriminating
circumstances and facts in relation thereto
are placed before this Court. Thus, what we
find is that P.Ws. 1 and 2 were of no avail
to the prosecution. We have already noted
that Gajendar Singh was not produced.

9. The learned counsel appearing for
the appellant has drawn our attention
towards some part of evidence of P.W.-1 in
which he stated about the motive of the
commission of offence. One motive was
that respondent no. 2 Naresh sold four
bigha of land to the informant and he
wanted the land back to him and the
informant being not ready for that,
respondent Naresh was nursing a grudge
against him.

10. The learned trial Judge has noted
that P.W.-1 has stated in his evidence that
purchase of land had taken place four years
prior to the occurrence and mutation of the
name
of
the
informant
into
the
government's record had already been
made, as such, it could not be such a strong
motive so as to impelling the accused
persons to commit the offence.The other
motive which was assigned by the
informant was that his son was carrying an
illicit relationship with the sister of
respondent Arvind but the learned trial
judge has noted that this fact was neither
stated in the first F.I.R. nor in the second
and it was for the first time that he was
making the statement in court, but had also
stated the fact in his statement under
Section 161 Cr.P.C.

11. We are of the view that the
rejection of the motive by the learned trial
judge may not be said to be an atrocious
judicial finding calling upon us to interfere
with the order of acquittal. The reason for
our finding is that even if the motive had
been established, it could not have taken
place of proof of charges and, secondly, the
motive does not appear established to the
hilt so as to pointing out that for these two
reasons the accused persons could have
been impelled to commit the crime. It was
rightly held that transaction which was
concluded four years prior in respect of a
land and had virtually concluded finally
and irreversibly could not be a motive for
commission of offence as regards the
motive of illicit relationship. We find that
except the bald statement no supporting
evidence either of the lady with whom the
deceased was carrying on his relationship
or anyone from the village, was brought on
record.

12. We further find that there is an
evidence of recovery of a knife at the
pointing of appellant Arvind. However, we
want to note that that recovery was not
admissible against other respondent. So far
as the recovery is concerned, the trial court
has rightly doubted the findings of blood on
that recovered knife because it was
embedded in earth and it was allegedly
brought out after removing earth. The
chance of fabrication destroys the evidence
of discovery of the fact and that too when it
is being challenged by the respondent by
stating that he had not led the police to any
discovery of a fact.
106 INDIAN LAW REPORTS ALLAHABAD SERIES

13. On the reasons, which we have
just pointed out, we are of the opinion, that
the judgement of acquittal could have been
the only probable result of the trial and as
such, this appeal lacks merit and we
dismiss the appeal.
----------
(2023) 9 ILRA 106
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2023

BEFORE

THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Revision No. 408 of 2020

Padmashri Dr. Usha Sharma ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Ashwini Kumar Awasthi, Sri Anurag
Vajpeyi, Sri Manish Tewary (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Bhavya Sahai, Sri Mayank Yadav,
Sri Pradeep Kumar Mishra, Sri Vivek Kumar
Singh, Sri Vinay Saran (Sr. Advocate)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
revision - Indian Penal Code, 1860 -
Sections 302 & 34 - court can exercise the
power under Section 319 Cr.P.C. only after
the trial proceeds and commences with
the recording of the evidence and also in
exceptional circumstances - power under
Section 319 of Cr.P.C. is to be invoked and
exercised before the pronouncement of
the order of sentence where there is a
judgment of conviction of the accused -
adding of a person as an accused on the
basis of some suspicion created by a
witnesses would be travesty of justice -
When there is no direct evidence, Hearsay
evidence cannot be the basis for issue of
summons.(Para - 40,43,50)
To quash/set aside - final judgment of
conviction passed - Sessions Judge passed order
to summon revisionist - face trial under Section
319 Cr.P.C. - at belated stage - revisionist
summoned after order of sentence of coaccused - no evidence against the accusedrevisionist - to be guilty of offence - only
witnesses i.e. P.W.-1 and P.W.-2 giving opinion
- revisionist might have committed offence -
neither any opportunity of hearing nor any
notice has been issued to the revisionist to have
her say - present criminal revision preferred by
revisionist. (Para - 7,44,50,51)

(B) The Code of Criminal Procedure, 1973
- Section 319 - Power to proceed against
other persons appearing to be guilty of
offence - "Judges condemned when guilty
is acquitted" - innocent should not be
punished, at the same time, real culprit
should not be allowed to escape.(Para -
24)
HELD:-Judgment and order cannot be legally
sustained and quashed. No Magistrate or any
court of law can invoke or exercise powers
under Section 319 Cr.P.C. for summoning any
person to face trial as an accused after passing
of order of sentence qua co-accused. (Para -
55)

Criminal Revision allowed. (E-7)

List of Cases cited:

1. Hardeep Singh Vs St. Of Punj. , (2014) 3 SCC
92

2. S. Jayaraj Vs St. of T.N. , 2015 SCC OnLine
Mad 14197/(2015) 2 LW (Cri) 574

3. Sukhpal Singh Khaira Vs St. of Punj. , 2023
(1) SCC 289

4. Brindavan Das & ors. Vs St. of W.B., (2009) 3
SCC 329/AIR 2009 1248 (SC)/(2009) SAR Crl.
117

5. Periayasamy & ors. Vs Nallasamy, (2019) 4
SCC 342/AIR 2019 SC 1426

6. G. Palanisamy Vs St. , 2003 (2) MWN (Cr.)