# Gaya Prasad Shukl Revisionist v. State of U.P

- **Citation:** (2023) 8 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-11
- **Case number:** Criminal Revision No. 374 of 2010
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-shukl-revisionist-v-state-of-u-p-50561
- **Pages:** 7

## Headnote

(A) Criminal law - The Code of Criminal
Procedure, 1973 - Sections 397/401 -
Revision , Indian Penal Code, 1860 -
Section 353, 504, 506 , The Probation of
Offenders Act, 1958 - Section 4 - release
on probation - non-examination of eyewitness cannot be pressed into service
like a ritualistic formula for discarding the
prosecution case with a stroke of pen -
Court
can
convict
an
accused
on
statement of sole witness even if he is
relative of the deceased - non examination
of independent witness would not be fatal
to the case of prosecution.(Para -13 )

1994 case - 29 years lapsed - no injury caused
by accused - Revisionist convicted - Collection
Peon (PW -1) & Collection Ameen (PW -2) -
witnesses of fact - filed a complaint for lodging
an F.I.R. - Claimed that while trying to recover
arrears of Rs.13, 399/- in village - they were
arrested by a man - who became angry, pushed
them, and threatened to shoot them with a
country-made pistol - threatened to cut them
into pieces within a week - asked for witnesses
from their side - complaint aims to establish the
truth about the incident - complaint registered
- charge-sheet - cognizance - statement of the
accused under section 313 Cr.P.C.(Para -3,17 )

HELD:-Trial court and first appellate court
concluded that alleged offense was caused by
accused revisionist. Prosecution proved the case
against beyond reasonable doubt. No merit in
revision. Order of conviction recorded by both
courts not liable to be interfered with . As the
revisionist has become a senior citizen and has
no criminal history, it would be appropriate to
enlarge the accused on probation instead of
sending him to jail for serving the sentence.
(Para -16,17)

Revision partly allowed. (E-7)

List of Cases cited:-

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstance mentioned in the confession must
be separately and independently corroborated.

40. There is no doubt that extra-judicial
confession by an accused need not in all cases
to be corroborated. In the aforesaid case, the
court was dealing with a matter with regard to
the offence of embezzlement made by an
employee of the bank.

41. In the present case, the accusedappellant has been held guilty for the offence
under Section 302 Cr.P.C. and we have already
held that the statement of PW-2 is not worth
reliance for the reasons mentioned above. The
contention of learned counsel for the appellant
though correct in principle but is not attracted in
the facts of the present case.

42. To summarize, we hold that the
evidence on the point of extra-judicial
confession does not inspire confidence and
cannot be relied upon. There is no reliable
evidence to satisfy the judicial mind that why
the appellant will repose faith and make confess
before a person who is in inimical terms with
the accused-appellant.

43. In the aforesaid facts and
circumstances, we find and hold that the
prosecution has failed to substantiate the
charges levelled against the accused-appellant.
If, extra-judicial confession is excluded, nothing
remains in the prosecution case, therefore, the
accused-appellant is legitimately entitled to
avail the benefit of doubt. Hence, the impugned
judgment and order of conviction passed by
Additional District and Sessions Judge, Court
No. 5, Lakhimpur Khiri could not withstand the
legal position and requires to be reversed by
acquitting the accused-appellant from the
charges levelled against him. Consequently, the
appeal deserves to be allowed by setting aside
the
impugned
judgment
and
order
of
conviction.

In view of that following order:-

I) The appeal stands allowed.

II) The judgment and order of conviction
dated 01.08.2015 passed by learned Additional
District and Sessions Judge, Court No. 5,
Lakhimpur Khiri in S. T. No. 761 of 2010,
under Section 302, 377, 511 & 201 I.P.C.,
Police Station Gola, District Lakhimpur Khiri,
stands quashed and set aside.

III) The accused-appellant, Nangu @
Rambabu is acquitted of the offence punishable
under Section 302, 377, 511 & 201 I.P.C.

IV) The accused be released from jail
forthwith, if not required in any other offence.

V) The appellant is directed to file a
personal bond and two sureties each in the like
amount to the satisfaction of the Court
concerned in compliance of Section 437-A of
the Code of Criminal Procedure within six
weeks from the date of release.

VI) Let the lower Court records along
with a copy of this judgment be transmitted to
the Trial Court and the Chief Judicial
Magistrate concerned for taking necessary
action. A copy of this judgment shall also be
forwarded to the appellant through the Chief
Judicial Magistrate or
the Trial Court
concerned, as the case may be.

VII) The amount of fine, if deposited, be
refunded to the accused.
----------
(2023) 8 ILRA 736
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.08.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Revision No. 374 of 2010

Gaya Prasad Shukl ...Revisionist
Versus
State of U.P. ...Respondent
8 All. Gaya Prasad Shukl Vs. State of U.P.
737
Counsel for the Revisionist:
Anil Kumar Tripathi

Counsel for the Respondent:
Govt. Advocate

(A) Criminal law - The Code of Criminal
Procedure, 1973 - Sections 397/401 -
Revision , Indian Penal Code, 1860 -
Section 353, 504, 506 , The Probation of
Offenders Act, 1958 - Section 4 - release
on probation - non-examination of eyewitness cannot be pressed into service
like a ritualistic formula for discarding the
prosecution case with a stroke of pen -
Court
can
convict
an
accused
on
statement of sole witness even if he is
relative of the deceased - non examination
of independent witness would not be fatal
to the case of prosecution.(Para -13 )

1994 case - 29 years lapsed - no injury caused
by accused - Revisionist convicted - Collection
Peon (PW -1) & Collection Ameen (PW -2) -
witnesses of fact - filed a complaint for lodging
an F.I.R. - Claimed that while trying to recover
arrears of Rs.13, 399/- in village - they were
arrested by a man - who became angry, pushed
them, and threatened to shoot them with a
country-made pistol - threatened to cut them
into pieces within a week - asked for witnesses
from their side - complaint aims to establish the
truth about the incident - complaint registered
- charge-sheet - cognizance - statement of the
accused under section 313 Cr.P.C.(Para -3,17 )

HELD:-Trial court and first appellate court
concluded that alleged offense was caused by
accused revisionist. Prosecution proved the case
against beyond reasonable doubt. No merit in
revision. Order of conviction recorded by both
courts not liable to be interfered with . As the
revisionist has become a senior citizen and has
no criminal history, it would be appropriate to
enlarge the accused on probation instead of
sending him to jail for serving the sentence.
(Para -16,17)

Revision partly allowed. (E-7)

List of Cases cited:-

1. St. of Har. Vs Krishan, A.I.R 2017 SC 3125,
2. Bhagwan Jagannath Markand Vs St. of Maha.,
(2016) 10 SCC 537

3. Mukesh Vs St. of NCT of Delhi & Ors., AIR
2017 SC 2161 (Three-Judge Bench),

4. Sadhu Saran Singh Vs St. of U.P, (2016)
4SCC 357

5. St. of Karna. Vs Muddappa, (1999) 5 SCC 732

6. Mohd. Monir Alam Vs St. of Bihar, (2010) 12
SCC 26

7. Krishna Deo & Ors. Vs St., Criminal Appeal
No. 735 of 1982

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Anil Kumar Tripathi,
learned counsel for the revisionist, Sri
Dinesh Kumar Gupta, learned A.G.A for
the State and perused the record.

2. The instant criminal revision under
Sections 397/401 Cr.P.C has been preferred
by the revisionist against the judgment and
order dated 24.09.2010 passed by the
Additional Sessions Judge / Special Judge
(SC ST Act), Court No. 8, District
Sultanpur, in Criminal Appeal No. 15 of
2009 (Gaya Prasad Shukl) Versus State of
U.P), convicting the revisionist under
Section 353 I.P.C for one year rigorous
imprisonment and Rs. 1,000- as fine, and in
case of default additional two month's
rigorous imprisonment, under Section 504
I.P.C
for
six
month's
rigorous
imprisonment and for Section 506 I.P.C one
years' rigorous imprisonment and also
against the judgment and order dated 25th
March, 2009 passed by Chief Judicial
Magistrate, Sultanpur in Criminal Case No.
2076 of 2002, Crime No. 457 of 1994,
(State Vs. Gaya Prasad Shukl), Police
Station Kotwali Nagar, District Sultanpur,
738 INDIAN LAW REPORTS ALLAHABAD SERIES
under the aforesaid Sections by which, the
accused was convicted and sentenced under
Section 353 I.P.C for two years rigorous
imprisonment and Rs.1,000/- fine under
Section
504
I.P.C
one
month's
imprisonment and Rs.500/- fine under
Section 506 I.P.C two year's simple
imprisonment with default of stipulation. It
was also directed by both the courts below
that all the sentences shall run concurrently.

3. In brief, facts of the case are that on
15.05.1994 at about 3:00 p.m. Anil Kumar
Mishra, Collection Peon and Tulsi Prasad
Mishra, Collection Ameen, moved a
written complaint for lodging an F.I.R
stating therein that on 15.05.1994 when
they both went to village Palhipur to
recover Rs.13,399/- as arrears of Bank
and informed about the arrest warrant
and tried to take him to the Tehsildar
Sadar, Sultanpur, he got angry and
pushed them and started abusing after
that he said he was coming with country
made pistol and shoot on both of them
and will tear their stomach. He also
threatened that he will cut themselves
into pieces within a week, you go and do
whatever you want to do, I will see who
will be the witness from your side.

4. It was also written that the accused
is a very influential and bad person, none is
ready to state against him as he is a person
of dominating personality.

5. On the basis of the aforesaid
written complaint, a complaint was
registered on 16.05.1994 at Crime No.
457 of 1994 under Sections 353, 224,
504 and 506 I.P.C. S.I. Jaipal Singh
Bishnoi investigated the case and after
collecting the evidence submitted the
charge-sheet
(Ex.Ka-6)
under
the
aforesaid Sections.

6. The cognizance was taken and
charge uner Section 353, 504 and 506 I.P.C
was framed. The prosecution examined the
following witnesses:

1. P.W 1. Tulsi
Prasad
Mishra,
Collection Ameen.

2. P.W. 2. Anil
Kumar
Mishra,
Collection Peon.

3. P.W. 3. Constable Rajendra Prasad
Mishra.

After closure off the statement of the
accused under Section 313 Cr.P.C was
recorded, in which he denied the allegation
and stated that on account of pressure of
recovery,
the
witnesses
had
testified
themselves against him. He also stated that
no information regarding Proforma Nos. 69
and 70 was given to him, which does not
bear his signature.

7. In defense D.W 1 - Ram Milan of
the same village has been examined.

In this revision the revisionist-accused
has taken grounds that the trial court and
the learned appellate court failed to
appreciate the evidence available on record
and they erred in convicting and sentencing
the revisionist, there is no material on
record to carry conviction against the
revisionist.
There
was
no
evidence
regarding the service of the demand notice
called as Proforma 69 upon the revisionist
and there is mandatory provision regarding
the service of the notice; and the same has
been ignored by the courts below as
without
following
the
procedure
of
Proforma 69, Procedure of Section 70,
recovery notice cannot be issued. No
independent witness has been produced by
the prosecution, because the illegal demand
of the complainant was not fulfilled by the
revisionist, the prosecution has been
8 All. Gaya Prasad Shukl Vs. State of U.P.
739
launched by the informant, there is no
signature of the revisionist on the Proforma
69. The revisionist has no knowledge about
the Proforma 70. The sentence is too
severe. For the above reasons, the order
passed by the courts below be set aside.

8. It is no where denied that
Rs.13,399/- of the bank was not due against
the revisionist.

9. From the evidence of P.W. 1 and
P.W 2, it has been proved that before
reaching to the revisionist with arrest
warrant issued on Proforma 70, they had
also met with the revisionist-accused and
had requested to pay the amount due
against
him. They had proved
that
Proforma
69
was
served
upon
the
revisionist in proper manner about one
week ago of the incident and at that time it
was signed by the accused before the
witness, but when the amount due was not
paid, an arrest warrant on Proforma 70 was
issued and in compliance to that, P.W 1 and
P.W 2 had gone to arrest the accusedrevisionist.

10. It has been proved from the
evidence that both the witnesses of fact
were pushed by the accused and he got him
free from their custody and also abused and
threatened as described above. It has also
been proved that when they could not arrest
the accused and the accused did not pay the
amount due, the matter was reported to the
Tehsildar and on his direction, this case had
been lodged.

11. So far as the non-examination of
the independent witnesses is concerned, it
has to be seen that this incident had
occurred in the village of the accused,
therefore no one came forward to testify
himself in support of the prosecution.
However, it has not been proved that P.W 1
& P.W 2 were inimical to the accused and
had any interest in false implication of the
accused in a criminal case. Both the
witnesses of the fact may be treated to be
an
injured
witness,
therefore
their
testimony cannot be denied.

12. In State of Haryana Vs. Krishan,
A.I.R 2017 SC 3125, Bhagwan Jagannath
Markand Vs. State of Maharasthra,
(2016) 10 SCC 537. It has been held that
deposition of an injured witness should be
relied upon unless there are strong grounds
for rejection of his evidence. On the basis
of major contradictions and discrepancies
for the reason that his present on the scene
stands established in the case and it is
proved that he suffered with the injuries
during the said incident.

13. In Mukesh Vs. State of NCT of Delhi
& Others, AIR 2017 SC 2161 (ThreeJudge Bench), and in Sadhu Saran Singh
Vs. State of U.P, (2016) 4SCC 357. It has
been held that if a witness examined in the
Court is otherwise found reliable and
trustworthy, the fact sought to be proved by
that witness need not be further proved
through other witnesses though there may
be other witnesses available who could
have
been
examined
but
were
not
examined. It is settled law that nonexamination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on statement of sole witness even
if he is relative of the deceased and non
examination of independent witness would
not be fatal to the case of prosecution.

14. In this case D.W - 1 is a
neighbour of the accused and his status and
evidence has been properly evaluated by
740 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned appellate court who has rightly
concluded that he was deposing, only being
neighbour and villager of the accused.

15. This defence witness has also
accepted that probably he would have gone
to his relation on 15.05.1994, which is the
date of occurrence, therefore the evidence
of D.W 1 becomes non trustworthy. There
is no ground to reject the testimony of P.W
1 and P.W. 2 with regard to the facts of the
case. So far as as the evidence of P.W. 3 is
concerned, this witness has proved the
documentary
evidence
as
secondary
evidence, because the I.O. was not
available and in this regard, no argument
has been advanced by the learned counsel
for the revisionist.

16. The trial court and the learned
first appellate court has properly discussed
the facts and circumstances of the case and
also the evidence available on record and
has rightly concluded that the alleged
offence had been caused by the accused
revisionist
and
the
prosecution
has
successfully proved the case against him
beyond the reasonable doubt. Therefore,
this Court is of the considered view that as
far as the conviction is concerned, there is
no merit in revision at all and the order of
conviction recorded by both the courts
below is not liable to be interfered with.

17. So far as the sentencing is
concerned, since it is a case of the year
1994 and about 29 years have been lapsed
and the concerned Sections are triable by
the Court of Magistrate, no injury had been
caused by the accused. The revisionist has
become a senior citizen and there is no pre
or post criminal history of the accused,
therefore it would be proper to enlarge the
accused on probation rather to send him in
jail for serving the sentence. Hence, this
revision is liable to be decided accordingly.

18. In State of Karnataka Vs.
Muddappa, (1999) 5 SCC 732 it has been
held as follows:-

"2. The learned Counsel for the
appellant is not in a position to assail the
acquittal of the accused under Section 302
I.P.C., but he vehemently contends that the
Court did be not bear in mind germane
considerations for releasing the accused on
probation after convicting him under
Section 304 Part II I.P.C. Whether the
benefit of the Probation of Offenders Act
could be extended in any particular case
depends upon the circumstances of that
case. Admittedly, there is no statutory bar
for application of the Act to an offence
under Section 304 Part II where the
maximum punishment is neither death nor
imprisonment for life. In that view of the
matter and on examining the impugned
judgment of the High Court, we find that
the Court did consider the relevant
material and then came to the conclusion
that the accused should be released on
probation by applying the provisions of
Section 4 of the Probation of Offenders Act.
We see no infirmity with that order to be
interfered with by this Court after this
length of time, more so when nothing has
been pointed out as to whether the accused
has, in any way, violated the terms and
conditions of allowing him on probation.

3. We, accordingly, dismiss this
appeal. Bail bonds of the respondent stand
discharged."

19. In the case of Mohd. Monir Alam
Vs. State of Bihar, (2010) 12 SCC 26, it
was held as under:-
8 All. Gaya Prasad Shukl Vs. State of U.P.
741

"8. We have considered Mr. Suri's
submissions very carefully. We see from
the documents that the appellant Md.Monir
Alam has secured a Doctorate and is
presently employed as a Senior Assistant
Professor in the Department of Strategic
and Regional Studies, University of Jammu
and that he had secured this appointment in
the year 1997. His professional attainments
have also been provided to us which shows
his expertise in his speciality and also
portrays his association with prestigious
organizations worldwide in the field of
strategic studies. We are, therefore, of the
opinion that his conduct and attainments
after his involvement in this matter justifies
his release on probation. We, accordingly,
dismiss the appeal but direct that he shall
be released on probation under Section 4 of
the Probation of Offenders Act, 1958 on
terms to be settled by the trial court."

And also in Krishna Deo and Others
Vs. State, Criminal Appeal No. 735 of
1982, it has been observed as under:-

"23. We are also not interfering with the
conviction of appellants- Smt. Jalkall and
Smt. Bhagwandel under Section 147 &
323/149 of the IPC. As discussed above,
considering the facts and circumstances of
the case, instead of sentencing the appellant
no. 1 for the offence under Section 304 PartIl r/w Section 34, 147. 323/149 of the IPC.,
we think it proper in the interest of justice to
release the appellant- Krishnadeo, after
giving him the benefit of Section 4 of the
Probation of Offenders Act. We are not
inclined to interfere with the sentence passed
against the appellant- Smt Jaikali. Smt.
Bhagwander, who were only directed to pay
fine. Appellant-Krishna Deo is directed to
surrender in the court below. The learned
court below is directed to release him as per
the provisions of Section 4 of the Probation of
Offenders Act. The learned court below shall
take all coercive steps for realizing the fine
from appellants-Jaikali and Bhagwandel, if
the same has not been deposited by them."

O R D E R

20. This revision is partly dismissed, as
far as the conviction under Sections 353, 504
and 506 I.P.C is concerned. This revision is
partly allowed with regard to sentencing
awarded by both the courts below and the
accused revisionist is directed to remain on
probation for a period of one year for his
good conduct and behaviour rather to serve
the sentence modified and awarded by the
learned appellate court.

21. It is directed that within a
period of thirty days from today,
accused- Gaya Prasad Shukla shall
execute two sureties bonds, personal
bonds and an undertaking before the
District Probation Officer, Sultanpur, to
remain on probation on his good conduct
and behaviour for one year, if he does so
he shall not be send to jail otherwise he
would be send to jail for serving the
sentence as decided by the learned A.S.J
/ Special Judge (SC. ST Act), Court No.
08, Sultanpur.

22. The fine awarded by the learned
appellate court would also be deposited
within a period of thirty days from today
otherwise he would serve the default of
stipulation as directed by the appellate
court.

23. A copy of this judgment along
with lower courts record be sent back to the
learned
Chief
Judicial
Magistrate,
Sultanpur to ensure compliance and for
consignment.
----------
742 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 742
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Misc. Writ Petition No. 6543 of 2023
with
Criminal Misc. Writ Petition No. 5214 of 2023
&
Criminal Misc. Writ Petition No. 6664 of 2023

Uday Rajgarhia ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajeet Singh, Sri Sageer Ahmed (Sr.
Advocate)

Counsel for the Respondents:
G.A., Sri Vinod Kumar Srivastava, Sri V.P.
Srivastava(Sr. Advocate)

A.
Criminal
Law-Constitution
of
India,1950-Article 226-Criminal Procedure
Code,1973-Section 173(8)- three separate
FIRs were lodged by the petitioners
against accused/respondent Nos. 5 and 6.
The
respective
investigations
were
conducted
and
charge
sheets
were
submitted before the Competent Court,
cognizance was taken and charges were
framed. After the commencement of trial,
the petitioners have been summoned and
examined as prosecution witnesses- At
this stage, during the pendency of the
trial, the petitioners/first informants have
been served with the notice under Section
160 Cr.P.C. to appear personally before
the
respondent
no.4
to
get
their
statement recorded before the Special
Investigating Agency (SIT) under Section
161 Cr.P.C. directing further investigation-
The petitioners, being aggrieved, have
challenged the said order particularly on
the ground that No Formal Permission was
sought by the Investigating Agency from
the
Learned
Trial
Court
for
further
investigation-The said order has neither
been informed nor intimated to the
Learned
Trial
Court-
order
directing
further investigation at this belated stage
shall benefit the accused/respondent Nos.
5
and
6
causing
prejudice
to
the
petitioners-Held, the police has unfettered
power
of
investigation
and
such
investigation can continue even after the
charge sheet has been filed under section
173 (8) Cr.P.C. and cognizance has been
taken thereon. No formal permission of
the Magistrate is required for carrying out
further
investigation
even
thereafter.
(Para 1 to 21)

The petition is dismissed. (E-6)

List of Cases cited:

1. Vinubhai Haribhai Malaviya Vs St. of Guj.
(2019) 17 SCC 1

2. St. thru CBI Vs Hemendhra Reddy & anr.
(2023) SCC Online SC 55

3. Anant Thanur Karmuse Vs St. of Mah. & ors.
(2023) 5 SCC 802

4. Subodh Kumar Jain @ Subodh Jain Vs St. of
U.P. & ors. CRLP No. 6555 of 2021

5. Nirmal Singh Kahlon Vs St. of Pun. reported
in (2009) SCC 44

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Sageer Ahmed, learned
Senior Advocate assisted by Sri Ajeet
Singh, learned counsel for the petitioners
and Sri V.P. Srivastava, learned Senior
Advocate assisted by Sri Vinod Kumar
Srivastava,
learned
counsel
for
the
respondent No. 5 and 6 and learned A.G.A.
for the State.

2. The petitioners are the first
informants
of
their
respective
First