# (In Jail) v. State of U.P

- **Citation:** (2007) 1 ILRA 192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-12-12
- **Bench:** R.C. Deepak, V.D. Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-of-u-p-40823
- **Pages:** 6

## Headnote

Sri Devendra Upadhyay
Sri S.K. Dubey
Sri S.K. Chaubey
Sri Shivendra Nath Singh
A.G.A.

Indian Penal Code-302-Punishment of
life imprisonment-based on presumption
of
provisioning-No
person
found
in
viscera
report-peculiar
case
of
punishment
without
evidence-appeal
deserves to be allowed.

## Text

192 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
been signed by any officer concerned. It is
surprising,
responsible
officers
like
Secretary as well as Chairman of the U. P.
Secondary Education Services Selection
Board acted upon such a letter, which was
not
countersigned
by
the
District
Inspector
of
Schools,
and
directed
adjustment. These facts lead to an
apprehension that adjustment has been
directed for other considerations. The
matter requires investigation.

8. The records, produced today
along with a copy of the writ petition, are
directed to be transmitted to the Secretary,
Secondary Education, U.P. Government,
Lucknow for holding a detail enquiry into
the issue (a) can a candidate selected
amongst against a reserved category of
Scheduled Caste can be adjusted against a
vacancy reserved for Other Backward
Classes, (b) whether a candidate selected
in pursuance of Advertisement No.
2/2001 could have been adjusted against
an unadvertised vacancy, as has been
done by the U.P. Secondary Education
Services Selection Board under an order
dated 21.8.2003, (c) who, in fact, inducted
the letter dated 24.7.2003 in the records of
the U.P. Secondary Education Services
Selection Board, inasmuch as counsel for
Sri
Ramesh
Chandra
has
made
a
statement that application dated 19th July,
2003 was not accompanied with any such
document, as is available on the records
of the U.P. Secondary Education Services
Selection Board and (d) The role of the
Chairman and Secretary by the Secondary
Education Services Selection Board in
directing adjustment of Ramesh Chandra,
the role of the District Inspector of
Schools, Committee of Management and
Principal of Chaudhary Chhotu Ram Inter
College, Muzaffarnagar, who appointed
Ramesh Chandra even after being fully
aware that vacancy is earmarked for Other
Backward Classes candidate.

9. The enquiry may be completed by
the Secretary and specific finding should
be recorded in respect of the individual
persons
involved.
Report
may
be
submitted before this Court by 12th
December, 2006. The original records, as
have been produced before this Court,
may be transmitted to the Secretary,
Secondary Education, U. P. Government,
Lucknow under a sealed cover along with
certified copy of the order.

10. From the facts as have been
noticed herein above, this Court is prima
facie satisfied that continuance of Sri
Ramesh Chandra is apparently illegal and
is based on procured documents. It is,
therefore, directed that Sri Ramesh
Chandra shall not be paid salary without
leave of the Court. The District Inspector
of Schools shall further ensure that
petitioner is permitted to join in the
institution as Lecturer Physics within two
weeks from the date a certified copy of
this order is filed before him.

List on 12th December, 2006.
Application disposed of.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2006

BEFORE
THE HON'BLE R.C. DEEPAK, J.
THE HON'BLE V.D. CHATURVEDI, J.

Criminal Appeal No.1865·of 1980

Hira Lal

...Appellant (In Jail)
Versus
State of U.P.
...Opposite Party
1 All] Hira Lal V. State of U.P.
193
Counsel for the Appellant:
Sri P.N. Misra
Sri Apul Misra
Sri A.P. Mathur
Sri Shashank Shekhar Giri

Counsel for the Opposite Party:
Sri Devendra Upadhyay
Sri S.K. Dubey
Sri S.K. Chaubey
Sri Shivendra Nath Singh
A.G.A.

Indian Penal Code-302-Punishment of
life imprisonment-based on presumption
of
provisioning-No
person
found
in
viscera
report-peculiar
case
of
punishment
without
evidence-appeal
deserves to be allowed.

(Delivered by Hon'ble R.C. Deepak, J.)

This criminal appeal has been filed
by the appellant-accused Hira Lal for
setting-aside the judgment and order
passed by Sri I.P. Mittal, the then
Additional Sessions Judge, Mirzapur
dated 30.8.1980 in Sessions Trial No.43
of 1978 pertaining to Police Station Katra,
District
Mirzapur
convicting
and
sentencing him to imprisonment for life
under Section 302 IPC.

The facts of the prosecution case,
briefly stated, are that the informant
Munni Lal son of Baldev Prasad, resident
of Mohalla Ganeshganj, Police Station
Katra, District Mirzapur had solemnized
the marriage of his daughter Gyani Devi
with appellant-accused Hira Lal resident
of the same Mohalla and District two or
three years back. His daughter had been
happily and peacefully living at the house
of the appellant-accused. After two or
three months after the marriage, the
appellant-accused and the other members
of
his
family
started
embarrassing,
harassing,
humiliating,
troubling,
turmoiling, beating and compelling her to
ask for more dowry from her parents.
Consequently,
she
happened
to
be
extremely worried. She used to tell her
parents and other members of the family
about the anxieties and atrocities caused
to her by appellant-accused and other
members of his family. Consequently, she
was unwilling to go to the house of the
appellant-accused. Not only this, but also
she very sorrowfully expressed before the
parents and other members of the family
that she would not visit the house of
appellant-accused
otherwise
the
appellant-accused would poison her to
death. The informant and other members
of her family, however, consoled her and
asked
appellant-accused
not
to
cause/commit any evil deed in regard to
her. The appellant-accused agreed and,
therefore,
the
informant
and
other
members of his family sent Gyani Devi
along with the appellant-accused to his
house. Two days before the occurrence,
one Paras Nath informed the informant
that the appellant-accused was beating his
wife Gyani Devi in the night between
21/22.7.1977 and, therefore, she was
weeping and crying. Consequently, the
informant, accompanied by Bhola Nath,
Chunni Lal, Rameshwar Prasad, Radhey
Shyam, Shanker Lal, Purushottam, Durga
Prasad and many others went to the house
of the appellant-accused who happened to
come out of his house and seeing them all
there, started running away. Whereupon
they all ran after him, who fell down at a
short
distance
and
received
certain
injuries. The informant and certain others
named above beat the appellant-accused
and caught hold of him. The appellantaccused with his folded hands confessed
his guilt/crime expressing that he at the
194 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
instance of his father administered poison
to his wife Gyani Devi to death. The
informant and others went to the upper
storey of the house of the appellantaccused and found Gyani Devi dead there.
The informant dictated the alleged report
Exhibit Ka-l on the spot to Bhola Nath in
connection with the occurrence. He took
this report to the Police Station concerned
where the first information report Exhibit
Ka-l was written on the basis of the said
report and a case as case crime no.180 of
1977 under Section 302/328 IPC was
registered. After the registration of the
case,
its
investigation
was
initially
entrusted to Sub-Inspector Bal Govind
Tiwari and subsequent to Sub-Inspector /
Station Officer Narendra Singh. S.I. Bal
Govind Tiwari visited the place of
occurrence and prepared its site plan
Exhibit Ka-16. He took the dead body of
Smt. Gyani Devi into his custody and
prepared Panchayatnama Exhibit Ka-12 in
connection therewith. He sent the dead
body of Smt. Gyani Devi through
Constable Naim Ullah for postmortem
examination.
Doctor
D.D.
Tripathi
(p.W.5) conducted the postmortem on the
dead body of Gyani Devi on 22.7.1977.
His report is Exhibit Ka-3. He preserved
viscera also as is clear from his report.
The Investigating Officer S.I. Bal Govind
Tiwari took down the statements of
Munni Lal, Bho1a Nath and Rameshwar
Prasad. Similarly, second Investigating
Officer S.I. Narendra Singh took down
the
statements
of
Paras
Nath
and
Purushottam and after completion of the
investigation into the case, he submitted
the charge-sheet Exhibit Ka-9 against the
appellant-accused and another in the
Court. Ultimately, the Court framed
charges against the appellant-accused and
his father Babu Ram. Babu Ram was
acquitted by the trial court. The State filed
Government Appeal No.2811 of 1980
against the order of acquittal. He died
during the pendency of the Government
Appeal. Consequently, the Appeal stand
abated.

The prosecution examined as many
as 9 witnesses in support of its case.
Munni Lal (P.W.l), Bhola Nath (P.W.2),
Chunni Lal (P.W.3), Paras Nath (P.W.6)
are the witnesses of fact, whereas Dr.
D.D. Tripathi (P.W.5), Narendra Singh
(P.W.7) and Bal Govind Tiwari (P.W.9),
the Investigating Officer are the formal
ones. Paras Nath turned hostile. The
appellant-accused denied all the charges
against him vide his statement under
Section 313 Cr.P.C. He has examined Dr.
S.C. Verma (D.W.l) in support of his
version, as disclosed by him in his
statement under Section 313 Cr.P.C. The
trial court convicted the appellant-accused
under Section 302 IPC against which the
present criminal appeal has been filed, as
already referred-to-above.

We have heard Sri P.N. Misra,
learned
senior
advocate
with
the
assistance of Sri Apul Misra, learned
counsel for the appellant-accused, Sri
Devendra Upadhayay, learned A.G.A. for
the State and perused the records.

The first information report is a copy
(verbatim) of the report Exhibit Ka-l
alleged to have been written by Bhola
Nath (P.W.2) on the dictation of the
informant Munni Lal (P.W.I) allegedly on
the spot itself. It may be mentioned at the
very outset that there is no evidence on
record to point out when, where and from
whom Munni Lal (P.W.1) or Bhola Nath
(P.W.2) had actually obtained pen-ink or
fountain pen and paper for the purpose of
writing the alleged report. There is no
1 All] Hira Lal V. State of U.P.
195
mention of any thing in any form or
manner in the alleged report, showing
where it was actually written. Munni Lal
(P.W.1) has stated that the report was
written at the door of the house of
appellant Hira Lal. Chunni Lal (P.W.3)
has stated that Munni Lal (P.W. 1) had
got the report written by Bhola Nath
(P.W.2) on his dictation while sitting on a
platform (chabootra) outside the courtyard
of the house of Hira Lal. Bhola Nath
(P.W.2)
has,
on
the
other
hand,
categorically
stated
in
this
crossexamination that the report was not
written on the spot.

In view of all these inconsistent and
contradictory statements of Munni Lal
(P.W.1), Chunni Lal (P.W.3) and Bhola
Nath (P.W.2) and in view of the
conspicuous silence of the place of
procurement of the pen and paper, as
mentioned earlier, the learned counsel for
the
appellant-accused
has
forcefully
argued that the report was not written on
spot, but at the police station itself and
that too in consultation with the police
officers concerned. This is, according to
him, so because Munni Lal had gone mad
seeing his daughter Gyani Devi dead at
the upper storey of the house of Hira Lal
because there was no sketch / rough draft
already prepared for the purpose of
writing of the report and also because
Munni Lal cannot be expected to have
given for the first time extempore
dictation to Bhola Nath for writing the
alleged report in the state of his madness
in particular. The arguments of the
learned counsel for the appellant-accused
appears to have substance.

It is further alleged in the first
information
report
that
Munni
Lal
(P.W.1), Rameshwar Prasad, Chunni Lal,
Durga Prasad, Bhola Nath, Shanker Lal,
Radhey Shyam and many others had gone
together to the house of Hira Lal, who
happened to come out of his house and
started running away seeing them all
there. Whereupon Munni Lal and all
others chased and ran after him. He fell
down at a short distance and consequently
received certain injuries. Munni Lal and
all others caught hold of him there
whereupon he (Hira Lal) confessed before
them all with folded hands that he at the
instance
of his father Babu Ram,
administered poison to his wife Gyani
Devi to her death. Munni Pal (P.W.I) has
stated in his examination-in-chief that
Hira Lal had made the above confession
before him and all others in his courtyard
where he was taken by them after having
been caught hold outside his house. In his
cross-examination, he has categorically
stated that Hira Lal had made the above
confession only in his courtyard and
nowhere else. Bhola Nath (P.W.2) has
also stated in his cross-examination that
Hira Lal had confessed his guilty in the
courtyard where he was taken by him and
others after having been of caught hold by
them outside his house. Chunni Lal
(P.W.3) has also stated the same thing.
There is nothing in the first information
report to indicate that he (Hira Lal) had
made any such confession, as alleged, in
his courtyard. Similarly there is nothing in
the first information report to show that
Babu Ram, father of the appellantaccused Hira Lal had made confession to
the effect that he had administered poison
to Gyani Devi to her death. Bhola Nath
(P.W.2) has disclosed in his examinationin-chief that Babu Ram, father of Hira Lal
(appellant-accused)
had
also
made
confession in his courtyard to the effect
that he had administered poison to Gyani
Devi.
196 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
The first information report shows
that Paras Nath had told that Hira Lal was
beating Gyani Devi. This report is
conspicuously silent where, when and
before whom he had told the alleged fact.
It was disclosed by Munni Lal, Bhola
Nath and Chunni Lal in their respective
statements that Paras Nath had told the
above fact to Munni Lal before them and
others at a temple situate nearby the
houses of Munni Lal and others, but their
statements in regard to this aspect of the
matter stand nowhere especially when
Paras Nath (P.W.6) has battered and
shattered this alleged aspect of the case
saying that he had not gone to any temple,
that he had not met there Munni Lal and
that he had not told anything to Munni Lal
and others. Consequently, he turned
hostile. Therefore, the statements of
Munni Lal, Bhola Nath and Chunni Lal
on
the
above
fact
introduced
as
afterthought are baseless and cannot be
relied upon.

It is further alleged in the first
information
report
that
Munni
Lal,
Rameshwar
Prasad,
Radhey
Shyam,
Chunni Lal, Durga Prasad, Bhola Nath,
Shanker Lal, Purushottam and many
others went to the house of Hira Lal who
happened to come out of his house and
who seeing them all started running away,
but they all caught hold of him on his
falling down at a little distance, but
Munni Lal, Bhola Nath and Chunni Lal
(P.Ws. 1, 2 & 3) have very cleverly and
cunningly excluded themselves from
others
named
in
their
respective
statements in the alleged process of
catching hold of him outside of his house.
They have also stated in their respective
statements that Paras Nath had also
accompanied them to the house of Hira
Lal, but first information report is
absolutely silent on the alleged presence
of Paras Nath at the house of Hira Lal at
the time when they are alleged to have
been there. It is on the basis of all these
inconsistencies
and
contradictions
occurring in the statements of the above
named witnesses, the learned counsel for
the appellant-accused has vehemently
argued that legally speaking there is no
case or evidence against the appellant
Hira Lal, that there is no eye-witness, that
the above named witnesses are related to
one another and that they have cooked
and concocted the present case with the
sole
aim
and
objective
of
falsely
implicating the appellant-accused therein.

Doctor
D.D.
Tripathi
(P.W.5)
conducted the postmortem on the dead
body of Gyani Devi. His postmortem
examination report is Exhibit Ka-3. He
has mentioned in this report that the cause
of death was poisoning. A perusal of his
report would show that his opinion is
based on his guess and surmises. This
probably the reason why he had preserved
viscera, as is clear from his report itself.

The most significant aspect of this
appeal is that the postmortem examination
report Ext. Ka 18 goes to show that no
mark of any external injury was seen on
the corpse of the deceased Smt. Gyani
Devi. P.W.5 Dr. D.D. Tripathi, therefore,
preserved the viscera of the deceased.
Regarding the cause of death, Dr. D.D.
Tripathi gave his report in a peculiar
manner. After scripting cause of death he
put a sign of interrogation and thereafter
wrote 'poisoning' below that line he
mentioned 'viscera preserved'. He deposed
that on the basis of the condition of the
dead body it might be presumed that she
died as a result of poisoning.
1 All] Mahendra Yadav V. Om Prakash and another
197
The accused cannot be convicted on
the basis of the presumption that the death
was caused by poisoning. It requires a
positive evidence to reach a conclusion
that the death was caused by poisoning.
The viscera was sent to chemical
examiner, who reported vide his report
Ex. Ka 18 that no poison was found in
any component of viscera. Learned
A.G.A. contended that the viscera report
Ext. Ka-18 was not proved. Section 293
Cr.P.C.
permits
that
any
document
purported to be a report under the hand of
the Government Scientific Expert upon
any matter or thing du1y submitted to him
for chemical examination or analysis may
be used in any enquiry. Ext. Ka 18 is a
report of the chemical examiner and it
may be used under Section 293 Cr.P.C.
We, therefore, reject the arguments of the
learned A.G.A. that the viscera report Ext.
Ka 18 cannot be read or used.

The opinion of Dr. D.D. Tripathi that
Smt. Gyani Devi died as a result of
poisoning is based on presumption and
surmises. Therefore, his opinion is not
acceptable. Besides it, his opinion that the
deceased died due to poisoning is contrary
to the opinion of chemical examiner,
therefore, it deserves to be rejected.

Thus in the nut-shell we have
nothing before us which may lead us to a
positive conclusion that Smt. Gyani Devi
died due to poisoning.

The investigation into the case does
not appear to have been fairly and
properly made by the police officers.
Nagendra Singh (P.W. 7), Bal Govind
Tiwari (P.W.9) who appear to have very
formally
submitted
the
charge-sheet
against the appellant-accused.

Having
visualized,
envisioned,
paused, pondered, carefully considered
and
scrutinized
all
the
facts
and
circumstances of the case, we arrive at the
conclusion that the present is a peculiar
case without evidence and evidence
without. Therefore, the appeal deserves to
be allowed and it is accordingly allowed.

The judgment and order dated
30.8.1980 passed by the trial court
referred-to-above
are
set-aside.
The
appellant-accused Hira Lal is acquitted of
the offence under Section 302 IPC for
which he was convicted and sentenced.
His personal and surety bonds are
discharged. He is on bail. He need not to
surrender.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No.956 of 2005

Mahendra Yadav

...Plaintiff
Versus
Om Prakash and another
...Defendant

Counsel for the Appellant:
Sri K.K. Mani

Counsel for the Respondents:
Sri J.P. Gupta
Sri Janardan Yadav
Sri Manish Kumar Nigam

Code of Civil Procedure-Order 23 rule 3
readwith Indian Contract Act, Section 23
with Transfer of Property Act-Section54-Transfer of immovable property-by
means
of
compromise
terms
of
compromise being unlawful u/s 23 of
Contract Act-sale transaction being his