# Girjapati v. State of U.P

- **Citation:** (2004) 2 ILRA 490
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-30
- **Case number:** Criminal Appeal No. 1310 of 1981
- **Bench:** Mukteshwar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/girjapati-v-state-of-u-p-40408
- **Pages:** 5

## Headnote

Probation of offenders Act-S. 4-Grant of
benefit incident took place in 1974Appellant found guilty by Trial court in
1981- Appellant contended that in view
of long gap between date of incident and
date of hearing it would not be just and
proper to send him to prison again- held,
said contention has force- Since injured
was a public servant and was assaulted
by appellant at his official residence, he
is not entitled to benefit of S. 4 of the
Act.

It has also been urged that the incident
in question took place in the month of
August, 1974 and since then about thirty
years
have
elapsed.
Moreover,
the
appellant was found guilty by the court
below on 12.5.81. Therefore, in view of
the long gap between the date of
incident, date of conviction and the date
of hearing it would not be just and
proper to send him to prison again. I find
force in this contention. Since the injured
was a public servant and was assaulted
at the hands of the appellant at his
official residence, I am not inclined to
extend him the benefit of Section 4 of
the Probation of Offenders Act. Para 17

(Delivered Hon'ble Mukteshwar Prasad, J.)

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
490
possessed certificates to that effect which
was filed before the Labour Court. The
explanation of the management that the
training was under some scheme but the
management did not also file any such
scheme before the Labour Court and there
was also nothing on record to show as to
the nature of the alleged training being
given to the workman. The alleged period
of training has stretched to about four
years. The petitioner has been unable to
show that the award suffers from any
perversity and the award is based on
finding of facts."

23. No benefit or advantage can be
derived from the aforesaid case of Arshad
Ali as in the present case, the Tribunal on
the basis of material and evidence on
record
before
it,
had
recorded
a
categorical finding that the petitioner is
merely a trainee.

24. In view of the foregoing
discussions, I do no find any legal
infirmity in the award passed by the
Industrial Tribunal. The writ petition
lacks merit and is dismissed.

 Petition Dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.4.2004

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 1310 of 1981

Girjapati

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Appellant:
Sri O.P. Misra
Sri Brijesh Sahai
Sri Sanjay Kumar Pandey

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

Probation of offenders Act-S. 4-Grant of
benefit incident took place in 1974Appellant found guilty by Trial court in
1981- Appellant contended that in view
of long gap between date of incident and
date of hearing it would not be just and
proper to send him to prison again- held,
said contention has force- Since injured
was a public servant and was assaulted
by appellant at his official residence, he
is not entitled to benefit of S. 4 of the
Act.

It has also been urged that the incident
in question took place in the month of
August, 1974 and since then about thirty
years
have
elapsed.
Moreover,
the
appellant was found guilty by the court
below on 12.5.81. Therefore, in view of
the long gap between the date of
incident, date of conviction and the date
of hearing it would not be just and
proper to send him to prison again. I find
force in this contention. Since the injured
was a public servant and was assaulted
at the hands of the appellant at his
official residence, I am not inclined to
extend him the benefit of Section 4 of
the Probation of Offenders Act. Para 17

(Delivered Hon'ble Mukteshwar Prasad, J.)

1. Accused Girjapati has filed this appeal
against the judgment and order dated
12.5.81 passed by Sri G.S.N. Tripathi, the
then Additional Sessions Judge, Basti
whereby he convicted the accused under
Sections 201, 324 and 452 of the Penal
Code and sentenced him to suffer rigorous
imprisonment for a period of six months,
two years and one year respectively
thereunder.
All
the
sentences
were
ordered to run concurrently.
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2 All] Girjapati V. State of U.P.
491

2. In brief, the facts of the
prosecution case as revealed from the
record are as under.

P.W.2 Shambhoo Lal was posted as
Amin in the canal department at Naugarh
(Basti) in the year 1974. On 17.8.74, he
was going for inspection of Ban Ganga
Canal. He found the accused driving his
bullock cart on the canal road in an
unauthorized
manner.
He,
therefore,
challaned the accused under Section 70 of
the Canal Act. Consequently, the accused
was annoyed with him.

3. On 24.8.74, Shambhoo Lal (the
informant) was doing official work in the
outer Verandah of his official residence
built in the campus of inspection house.
At about 10-00 a.m., accused Girjapati
arrived there in the Verandah, used filthy
language to Shambhoo Lal and threatened
to kill him. He took out a knife from his
pocket. The informant was terrified and
raised alarm. Accused dragged him from
his cot and brought him down and stabbed
him twice in his chest. On hearing alarm,
Ramdeo, Ganga Prasad, Nageshwar, all
Patrauls, and Chulhyee, Beldar who were
waiting for Ziledar at the inspection house
reached
there
and
intervened.
The
informant was wearing a Baniyan, which
was stained with blood. Accused tore out
the
Baniyan
and
took
out
from
informant's body. He sprinkled kerosene
oil upon it from the lamp kept there and
burnt it. Since he was having a knife in
his hand, none dared to catch him. Before
leaving the scene of the incident, the
accused threatened the informant/the
injured not to report the incident to the
police.

4. The informant reached Tetari
Bazar and prepared a report of the
incident in his own handwriting. He
handed over his report to the police and a
case was registered under Sections
307/323/201/452/426 I.P.C. and all papers
were sent to P.S. Chilhiya.

P.W.1 Dr. O.B. Agarwal, Medical
Officer, PHC Naugarh, examined the
injuries of Shambhoo Lal at 7-30 p.m. on
24.8.74 and found two incised wounds
skin deep on the right and left side of the
chest.

In the opinion of the doctor, both the
injuries were simple and caused by some
sharp edged cutting weapon. The injuries
were about half day old at the time of
examination and could be caused at about
10-00 a.m. on 24.8.74.

5. The papers were received at P.S.
Chilhiya on 25.8.74 at 2-30 p.m. and an
entry was made. On the same day, S.I.
Ram Raj Singh, the then S.O. started
investigation and interrogated witnesses
and after inspection of scene of incident
prepared a site-plan. After completing
investigation, he submitted charge-sheet
against the accused.

6. Accused Girjapati was charged
under Sections 307/452/201 I.P.C. on
5.8.80. He pleaded not guilty to the
charges and claimed to be tried.

In
order
to
substantiate
its
allegations, the prosecution examined
P.W.1 Dr. O.B. Agarwal, who examined
the injuries of Shambhoo Lal on 24.8.74
at 7-30 p.m. at P.H.C. Naugarh (Basti),
P.W.2 Shambhoo Lal, the informant and
the injured, P.W.3 Ganga Prasad, an eye
witness, P.W.4 Nageshwar, who is also
said to be eye witness and P.W.5 S.I. Ram
Raj Singh, I.O. of the case.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
492

7. Accused in his statement under
Section 313 Cr.P.C. totally denied all
accusation levelled against him by the
prosecution and pleaded that he was
falsely implicated in the case on account
of enmity. The defence version was that
accused was attending the court of
S.D.M., Naugarh at Basti and was present
there at 10-00 a.m. on the impugned date.
Accused examined Anwar Ali Khan, the
then Reader of the court of S.D.M.,
Naugarh in defence.

8. After close scrutiny of the entire
evidence on record led by the parties
learned Judge found the accused guilty for
the offences punishable under Sections
452, 324 and 201 I.P.C. and convicted
and sentenced him as mentioned above.
Hence this appeal.

I have heard appellant's learned
counsel at length and learned A.G.A. also.
I have gone through the record of the
lower court carefully.

9. Learned counsel for the accusedappellant has urged vehemently that
inordinate delay took place in lodging the
F.I.R. and F.I.R. was not lodged at P.S.
Chilhiya. There is no explanation on
record as to why F.I.R. was lodged at
Tetari Bazar. The prosecution produced
P.W.3
Ganga
Prasad
and
P.W.4
Nageshwar who were colleagues of the
injured and no independent public witness
was examined by the prosecution. P.W. 4
Nageshwar turned hostile. It was also
urged that both Nageshwar and Ganga
Prasad were chance witnesses and the
learned Judge erred in placing reliance on
their testimony. It was also submitted that
the accused pleaded alibi and the court
below committed error in not accepting
the plea of alibi. It was not proved by
reliable evidence that offence took place
inside the Verandah, as alleged by the
prosecution, and the I.O. found no
ash/evidence of burning Bandi of the
injured in the Verandah and as such, the
appellant could not be convicted under
Sections 452, and 201 of the Penal Code.

10. On the other hand, learned
A.G.A. supported the judgment passed by
the court below and has urged that the
appeal is liable to be dismissed.

11. I have considered the arguments
advanced on behalf of the parties and
have gone through the record also. Fist of
all, I find that there was a motive for the
appellant to commit the offence in
question. P.W.2 Shambhoo Lal, the
injured, testified in clear words that he
found the appellant driving his bullock
cart on the canal road on 17.8.74 and had
filed a complaint against him. This
statement
of
the
injured
was
not
challenged in cross-examination. It is,
therefore, obvious that the appellant had a
motive to cause injuries to Shambhoo Lal.

12. I further find that no delay took
place in lodging the F.I.R. and reporting
the incident to the police. The impugned
incident took place on 24.8.74 at about
10-00 a.m. in the compound of the
inspection house. The injured himself
prepared a report and handed over his
report to the police at P.S. Tetari Bazar.
He did not go to P.S. Chilhiya on account
of fear of the accused. He reiterated his
statement
on
this
point
in
crossexamination also and added that the
village of the appellant intervened in
between the place of incident and P.S.
Chilhiya. The F.I.R. was lodged at 4-00
p.m. on the same day. In this view of the
matter, I find that incident was reported to
http://www.allahabadhighcourt.nic.in
2 All] Girjapati V. State of U.P.
493
the police promptly. Similarly, no delay
took place in medical examination of the
injuries also and the injuries were
examined by a Government doctor at 7-30
p.m. on the same day.

13. So far the witnesses examined
on
behalf
of
the
prosecution
are
concerned, P.W.2 Shambhoo Lal fully
supported the prosecution story and stated
categorically that on the impugned date at
about 10-00 a.m. he was doing official
work in the Verandah of his residence and
the appellant arrived there with a Rampuri
knife in his hand and threatened to kill.
He tried to catch the knife but appellant
gave him knife blows and caused injuries
in his chest. He was cross-examined at
length on behalf of the accused but in my
opinion nothing material could be elicited
in
his
cross-examination.
In
crossexamination also, the witness gave out
that incident took place in the Verandah.

P.W.3 Ganga Prasad, a Patraul, who
is named in the written report as an eye
witness corroborated the testimony of the
injured and gave out that he was waiting
for Ziledar at the inspection house and
from there he reached the scene of
occurrence on hearing the alarm raised by
the injured. He saw the appellant
assaulting Shambhoo Lal with a knife. He
added that Nageshwar and Ramdeo had
also reached there. He too disclosed that
Shambhoo Lal was assaulted in the
Verandah.

P.W.4
Nageshwar,
another
eye
witness named in the F.I.R., turned
hostile. He, however, supported the
prosecution version partly and testified
that he saw Shambhoo Lal in the injured
condition and some drops of blood had
fallen on the floor. He further admitted
that he reached there on hearing the alarm
raised by Shambhoo Lal. He admitted
presence of Ganga Prasad (P.W.3) at the
scene of incident.

14. It was contended on behalf of
the appellant that P.W.3 Ganga Prasad is
a chance witness. I find no force in this
contention. He disclosed on oath that he
was waiting for Ziledar at the inspection
house.

15. So far as the defence version is
concerned, the appellant did not disclose
in his statement recorded under Section
313 Cr.P.C. that he attended the court of
S.D.M. Naugarh at 10-00 a.m. on the
impugned date. No doubt learned counsel
for the accused suggested to Shambhoo
Lal as well as Ganga Prasad that accused
was present in the court of S.D.M.,
Naugarh at Basti on the impugned date. It
is noteworthy that appellant examined
D.W.1 Anwar Ali Khan but in my opinion
he could not help the appellant. He
admitted that on 24.8.74 the S.D.M.,
Naugarh had gone to inspect flood
affected areas in the district. He further
disclosed that one Girjapati had signed the
order-sheet but he could not say that the
appellant had signed the order-sheet. He
testified in clear words that he did not
identify the appellant. In this view of the
matter, the testimony of defence witness
does not help the appellant. P.W.2
Shambhoo Lal and P.W.3 Ganga Prasad
stated that appellant had torn Bandi of the
injured, sprinkled kerosene oil thereon
and burnt. The I.O. who inspected the
scene of incident on 25.8.74 itself found
no ash or evidence of burning Bandi of
the injured on the spot. In my opinion,
this part of the prosecution story does not
inspire
confidence
and
cannot
be
accepted.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
494

16. In view of the foregoing
discussion, I hold that learned Judge
rightly found the appellant guilty for the
offences punishable under Sections 452
and 324 of the Penal Code. I, however,
hold that charge framed against the
accused under Section 201 I.P.C. was not
proved
by
reliable
and
convincing
evidence. Consequently, the appellant is
entitled to be acquitted of the charge
framed under Section 201 I.P.C.

17. It has also been urged that the
incident in question took place in the
month of August, 1974 and since then
about
thirty
years
have
elapsed.
Moreover, the appellant was found guilty
by the court below on 12.5.81. Therefore,
in view of the long gap between the date
of incident, date of conviction and the
date of hearing it would not be just and
proper to send him to prison again. I find
force in this contention. Since the injured
was a public servant and was assaulted at
the hands of the appellant at his official
residence, I am not inclined to extend him
the benefit of Section 4 of the Probation
of Offenders Act.

18. In the result, the appeal is partly
allowed. The conviction of the appellant
under Sections 452 and 324 I.P.C. is
affirmed and he is sentenced to the period
already undergone by him and to pay a
fine of Rs. 1000/- under Section 452
I.P.C. The appellant is further sentenced
to pay a fine of Rs. 1500/- under Section
324 I.P.C. He is acquitted of the charge
framed under Section 201 of the Penal
Code and his conviction and sentence
under this Section are hereby set aside.
The appellant is allowed to deposit the
total fine amounting to Rs. 2500/- within
a period of three months from today. In
default, he is directed to suffer rigorous
imprisonment for a period of two months
and two months under each count.

19. The appellant is in jail. He shall
be released forthwith if he is not wanted
in any other crime.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.04.2004

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 454 of 1995

Darbari and Keshav Raj ...Appellants
(In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellants:
Sri H.N. Singh
Sri Keshav Srivastava
Sri S.N. Tripathi
Sri Rajeev Chaddha

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

Narcotic
Drugs
and
Psychotropic
Substances Act, 1985-S.20-Conviction
under-Appeal-Hostile
Witness-Both
public witnesses denied recovery of
Charas from possession of appellants in
their presence, non they were arrestedWitnesses
turned
hoside-In
cross
examination by State Counsel witnesses
asserted that their signatures were
obtained on blank papers-no evidence of
independent public witnesses on record
to
support
prosecution
story-Hence
conviction and sentences set aside.

The prosecution produced two public
witnesses Ram Prasad and Ishaque and
both stated categorically that no Charas
was recovered from the possession of