# Gabbar Patel @ Dharmendra Patel v. State

- **Citation:** (2022) 8 ILRA 850
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Jail Appeal No. 5752 of 2007
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gabbar-patel-dharmendra-patel-v-state-48948
- **Pages:** 5

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 307 - Arms Act, 1959 -
Section
3/25
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 8/22 - The Code of Criminal
Procedure, 1973 - Section 313 - plead
guilty - Confession -Mere recovery of a
weapon and one empty cartridge would
not be sufficient to prove the use of the
said weapon without any corroborating
8 All. Gabbar Patel @ Dharmendra Patel Vs. State
851
evidence - statement under Section 313
Cr.P.C.
is
not
evidence
-
used
for
appreciating
evidence
led
by
the
prosecution to accept or reject it. (Para -
15,16)

Accused confessed his guilt in his statement
under Section 313 Cr.P.C - solitary fire by
accused - did not hit anyone - no injury -
overpowered and apprehended - 12 bore
country made pistol with one empty cartridge -
one live cartridge in possession.(Para - 13,14,)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 313 - It cannot
be said that merely by pleading guilty in
the statement under Section 313 Cr.P.C.
the accused can be pinned down and a
conviction can be recorded against him.
(Para - 17)

HELD:- Accused-appellant extended the benefit
of doubt. Appellant acquitted of charges levelled
against him.(Para -18 )

Jail Appeal Allowed. (E-7)

## Text

850 INDIAN LAW REPORTS ALLAHABAD SERIES
contradicts the statement of the appellant
that on 12.5.2020 at 8.00p.m. she along
with her brother in law went to see her
husband. The claim of the appellant has
been found totally contradictory to the
material on record of the Special Judge as
the brother in law of the appellant himself
has stated that the deceased met an accident
which corroborates the statement of the
doctor and the medical report which also
shows that the appellant did not go with the
deceased husband to the hospital. The post
mortem report also shows that the deceased
met an accident as apart from the injuries
shown for cause of death, there are six
other ante mortem injuries on the shoulder,
knee, foot, shin and thigh which shows that
it is a case of accident.

12. On due consideration to the
argument advanced by the parties' counsel
and perusal of the record as also findings
recorded by the learned Special Judge,
coupled with the fact that the appellant on
one hand has filed this appeal against
rejection of her protest petition, on the
other hand according to the report of the
Revenue Officer dated 18.6.2020 she has
applied
for
Mukhyamantri
Krishak
Durghatana Kalyan Yojna and as per
statement given by learned counsel for the
complainant, she has also received a sum of
Rs.5 lacs as compensation in the said
Scheme which shows that this is the vain
attempt by the appellant/complainant to
prosecute the private respondents 3 to 8 for
the offences under sections 147, 148, 149,
302, 120-B I.P.C., 3(1)Da, Dha and 3(2)V
of
Scheduled
Castes
&
Scheduled
Tribes(Prevention of Atrocities) Act, 1989
and only with a view to get an additional
compensation under SC/ST Act by putting
altogether not only a different but totally
contradictory story. This case is a perfect
example of abuse of process of the court,
for ulterior monetary gain. The statement of
the learned counsel for the complainant that
the appellant has received an amount of
Rs.5 lacs under the above Welfare Scheme
and the pleadings in the counter affidavit
have not been rebutted by learned counsel
for the appellant.

13. The appeal is accordingly
dismissed with cost of Rs.5,000/- which
shall be recovered from the appellant
within three months from today as arrears
of land revenue under intimation to the
Registrar General of this Court by the
concerned District Magistrate.
----------
(2022) 8 ILRA 850
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Jail Appeal No. 5752 of 2007

Gabbar Patel @ Dharmendra Patel
 ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Bhanu Pratap Singh A/C, Sri
Satya Prakash Rathor (A.C.)

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section 307 - Arms Act, 1959 -
Section
3/25
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 8/22 - The Code of Criminal
Procedure, 1973 - Section 313 - plead
guilty - Confession -Mere recovery of a
weapon and one empty cartridge would
not be sufficient to prove the use of the
said weapon without any corroborating
8 All. Gabbar Patel @ Dharmendra Patel Vs. State
851
evidence - statement under Section 313
Cr.P.C.
is
not
evidence
-
used
for
appreciating
evidence
led
by
the
prosecution to accept or reject it. (Para -
15,16)

Accused confessed his guilt in his statement
under Section 313 Cr.P.C - solitary fire by
accused - did not hit anyone - no injury -
overpowered and apprehended - 12 bore
country made pistol with one empty cartridge -
one live cartridge in possession.(Para - 13,14,)

(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 313 - It cannot
be said that merely by pleading guilty in
the statement under Section 313 Cr.P.C.
the accused can be pinned down and a
conviction can be recorded against him.
(Para - 17)

HELD:- Accused-appellant extended the benefit
of doubt. Appellant acquitted of charges levelled
against him.(Para -18 )

Jail Appeal Allowed. (E-7)

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Satya Prakash Rathor,
learned Amicus Curiae for the appellant
and Sri S.B. Maurya, learned counsel for
the State and perused the material on
record.

2. This jail appeal has been filed by
the appellant Gabbar Patel @ Dharmendra
challenging the impugned judgement and
order
dated
25.09.2006
passed
by
Additional District & Sessions Judge,
Court No. 14, Varanasi in Sessions Trial
No. 784 of 2004, by which he has been
convicted and sentenced under Section 307
I.P.C. to undergo three years and six
months rigorous imprisonment.

3. The prosecution case as per the
First
Information
Report
lodged
on
04.03.2003 at about 01:40 am is that the
police informer informed the police that
one person standing at Jalalpur Mod and is
about to commit an incident who is having
narcotics and a country made pistol with
him, on which, the S.O. Sunil Kumar
Bisnoi along with his accompanying police
personnels proceeded towards the said
person. They had torch with them. The said
person all of sudden fired upon them to
which they escaped and then they followed
him after which near Jalalpur Mod he
showed them his weapon but they arrested
him on 03.03.2003 at about 23:40 hrs after
overpowering him. They recovered a 12
bore country made pistol from his right
hand and immediately upon opening its
barrel found an empty cartridge. The said
person was asked about his identity to
which he disclosed that his name is Gabbar
Patel @ Dharmenndra Patel and told his
father's name and address. He further told
them that he has diazepam tablets with him.
He told them to take his search after which
from his left pocket something wrapped in
paper was found, on opening of which
small tablets were recovered which were on
counting found to be 300 tablets. The
country made pistol, empty cartridge and
the tablets were recovered and a recovery
memo was prepared which was duly signed
by him. The said recovery memo is Exb:
Ka-1 to the records.

4. On the basis of the said recovery
memo, a First Information Report was
lodged on 04.03.2003 at 01:40 am as Case
Crime No. 29 of 2003 under Section 307
IPC, Case Crime No. 30 of 2003, under
Section 3/25 Arms Act and Case Crime No.
31 of 2003, under Section 8/22 of N.D.P.S.
Act, Police Station Bada Gaon, District
Varanasi.

5. The matter was investigated and a
charge sheet no. 34 of 2003 dated
852 INDIAN LAW REPORTS ALLAHABAD SERIES
24.03.2003 was filed against the accusedappellant Gabbar Patel @ Dharmendra
under Section 307 I.P.C. The same is Ex.
Ka- 5 to the records.

6. Vide order dated 03.05.2005 passed
by the Additional Sessions Judge, Court
No. 14, Varanasi charge was framed under
Section 307 I.P.C. against the accused
Gabbar Patel @ Dharmendra. He pleaded
not guilty and claimed to be tried.

7. In the trial, Sup-Inspector Ajay
Srivastava
was
examined
as
PW-1.
Amongst the prosecution documents, the
recovery memo was produced as Exb: Ka1, the Chik FIR was Exb: Ka-2, the GD of
registration of the FIR was Exb: Ka-3, site
plan was Exb: Ka-4 and the charge sheet
was Exb: Ka-5 to the records.

8. After recording of the evidence of
PW-1, the accused in his statement
recorded under Section 313 Cr.P.C. in reply
to question no. 4 stated that he committed a
fault. He pleads guilty. Further, to question
no. 6 he states that he is in jail since long
time and as such leniency be shown. The
trial court thus after his confession under
Section 313 Cr.P.C. concludes the trial as
passed the impugned judgment by stating
that on the basis of statement of PW-1 and
the recovery memo along with the
confession of the accused-appellant, the
prosecution has succeeded its case beyond
reasonable doubt and convicts him as stated
above.

9. PW-1 Ajay Srivastaava was posted
as Chowki In-charge Harhua, Police
Station Bada Gaon, District Varanasi. On
the day of the incident, he was standing
with the S.O. at Jamalpur Mod and were
talking about miscreants, on which, the
police
informer
came
and
on
his
information and pointing out an effort was
made to arrest the accused-appellant after
which he fired upon the police party from
his country made pistol but the police party
was saved and no one received injury. He
was overpowered and was apprehended
along with 12 bore country made pistol,
one live cartridge and one empty cartridge
along with 300 tablets of diazepam. The
recovery memo was prepared on the
dictation of S.O. Sunil Kumar. The articles
were sealed and the accused was brought to
the Police Station and the First Information
Report
was
lodged.
He
proves
the
handwriting of the Head Constable who
transcribed the First Information Report.
The investigation was given to SupInspector Vipin Kumar Rai who concluded
it and filed a charge sheet. He proves the
handwriting of Vipin Kumar Rai also. No
cross examination was done.

10. The accused then in reply to
question no. 4 in his statement recorded
under Section 313 Cr.P.C. was asked as to
why a case has been lodged against him, to
which, he states that he is at fault. He
admits his guilt. In reply to the question
no.1 with regards to his making a fire on
the police party, he states that it is true. He
further with regards to the recovery of the
weapon and the recovery memo, does not
say anything. Further, in reply to the
documents and investigation he does not
say anything. In the last reply to a question
no. 6 as to whether he wants to say
anything, he states that he is in jail since a
long time and leniency be shown to him.

11. The trial court came to a
conclusion that the prosecution has proved
its case beyond reasonable doubts on the
basis of the statement of PW-1 Ajay
Srivastava, the recovery memo Exb: Ka-1
and acceptance of guilt by the accused in
8 All. Gabbar Patel @ Dharmendra Patel Vs. State
853
his statement recorded under Section 313
Cr.P.C. and thus convicts him as stated
above.

12. Learned Amicus Curiae argued
that the view as taken by the trial court is
fully perverse and illegal. The prosecution
has to stand on its own leg and prove its
case beyond reasonable doubt. It is argued
that admittedly the present case is a case of
no injury. The recovery memo although is
on record and has been exhibited by the
prosecution but there is no corroborative
evidence to show the use of the said
weapon in the present case. There is no
opinion of any expert or even evidence to
the effect that the said weapon was sent for
analysis to show that there was fire made
by
the
accused-appellant.
The
corroboration in so far as the use of the said
weapon is concerned, is missing. It is
argued that even the prosecution has not
come forward to show that the said weapon
was sent to the ballistic expert for its
testing which would go to corroborate its
use in the present case. It is argued that
merely by pleading guilty in the statement
recorded under Section 313 Cr.P.C., the
accused cannot be held guilty. At the stage
of framing of charge, the accused had
pleaded not guilty and claimed to be tried.
It was the duty of the prosecution to stand
on its leg to show the involvement of the
appellant. It is argued that the impugned
judgment and order deserves to be set aside
and the appellant deserves be acquitted.

13. Per contra, learned counsel for the
State opposed the arguments of learned
Amicus Cruiae and argued that the
statement of PW-1 has clinched the issue.
The implication of the appellant is there.
He was apprehended at the spot with the
weapon by which he made a fire. The
accused has confessed his guilt in his
statement under Section 313 Cr.P.C. The
same are sufficient to reach to a conclusion
of his being involved in the matter and
convict him. Hence, the appeal deserves to
be dismissed.

14. After having heard learned
counsels for the parties and perusing the
records, the issue involved in the present
matter lies in a small compass. It is as to
whether after pleading guilty in the
statement recorded under Section 313
Cr.P.C. and the prosecution proving the
recovery memo and one witness coming
and the deposing against the accused who
was one of the team members of the
arresting team, is sufficient for conviction
or not. Admittedly, the present case is a
case of no injury. It is stated that the
accused made a solitary fire but the same
did not hit anyone. He was later on
overpowered and apprehended and stated to
be having a 12 bore country made pistol
with one empty cartridge along with one
live cartridge in his possession. The said
articles were recovered from him.

15. The prosecution is silent as to
whether the said weapon was sent to the
ballistic expert for examination which
would corroborate its use at that point of
time. Mere recovery of a weapon and one
empty cartridge would not be sufficient to
prove the use of the said weapon without
any corroborating evidence.

16. The next question which crops up
is as to whether the accused if pleads guilty
in his statement under Section 313 Cr.P.C.
is also the circumstance to rest against him
or not. In the present case, as has been
stated above after charges were framed by
the concerned court, the accused had
pleaded not guilty and had claimed to be
tried.
854 INDIAN LAW REPORTS ALLAHABAD SERIES

In his statement recorded under
Section 313 Cr.P.C. he has not given any
reply to certain questions and further states
of his being guilty and then in addition
states of the court taking a lenient view in
the sentence as he is in jail since long time.
Law as it stands undisputed is that the
statement under Section 313 Cr.P.C. is not
evidence. It is not a substantive peace of
evidence. It can be used for appreciating
evidence led by the prosecution to accept or
reject it. However, it cannot be said to be a
substitute for the prosecution evidence. It is
only the version or stand of the accused by
way of explanation to a question put by the
prosecution
regarding
incriminating
material appearing against him which are
brought to his notice and he is given a
chance to reply them. The statement is not
made on oath. Yet it can be taken into
consideration at the trial against an accused
for arriving at his guilty or otherwise but
the prosecution has to at the very first
instance prove its case beyond reasonable
doubts against him and then his explanation
or
answer
to
such
incriminating
circumstance should be looked into. It
cannot be said that mere stating of being
guilty in the statement under Section 313
Cr.P.C. will end the issue and would lead
the route only to the guilt of the accused
without prosecution establishing its case
beyond reasonable doubt against him
through cogent, reliable and admissible
evidence.

17. In the present case, there is no
other witness examined by the prosecution.
Although, the quality of evidence is needed
in a case and not the quantity. In the
present case, only one witness was
examined who was a member of the said
police team. He has deposed for each and
everything of the case. The corroboration
of the use of the weapon is not present. The
weapon was not sent for expert analysis.
The case is a no injury case. It cannot be
said that merely by pleading guilty in the
statement under Section 313 Cr.P.C. the
accused can be pinned down and a
conviction can be recorded against him.

18. Looking to the facts and
circumstances of the case and in view of
the above discussion as done, the accusedappellant deserves to be extended the
benefit of doubt and as such the present
appeal is allowed. The appellant is
acquitted of the charges levelled against
him. The appellant if is in jail, shall be
released forthwith.

19. Office is directed to transmit the
lower court records along with the copy of
this judgment to the trial court forthwith for
its compliance and necessary action.

20. Sri Satya Prakash Rathor, learned
Amicus Curiae who was appointed Amicus
Curiae vide order dated 04.08.2022 passed
by this Court assisted the Court in deciding
the appeal.

21. Office is directed to pay a sum of
Rs. 8,000/- for assistance of the Court to
learned Amicus Curiae within two months
from today.
----------
(2022) 8 ILRA 854
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 5765 of 2011
WITH
Government Appeal No. 6752 of 2011