# Kalyan @ Kallu (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Criminal Appeal No. 1351 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalyan-kallu-in-jail-v-state-of-u-p-47562
- **Pages:** 9

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973- Section 215 Cr.P.C.
provides that if there is any error in
stating the charge or particulars required
and also provides if there is omission to
state the offence or those particulars,
then it would not be deemed material
unless the accused was mislead by such
omission or error or there was failure of
justice due to that reason. But, in the case
in hand, there is absolute absence of
charge under Section 27 Arms Act, 1959,
and total absence of charge is not
omission. When there is complete absence
of charge, question does not arise of any
error or omission in charge. Furthermore,
it is very pertinent to note that in this
case, even the case under Arms Act, 1959,
was not committed to the court of
sessions,
therefore,
there
was
no
committal and no charge was framed
under Section 27 of the Act, 1959, yet the
trial court convicted and sentenced the
appellant for the offence, the accused was
not charged with.

Where no case u/s 27 of the Arms Act was
committed and no charged was framed then the
same cannot be held to be an omission within
the meaning of Section 215 of the CrPc.

Criminal Law -Code of Criminal Procedure,
1973- Section 221 (2) - Sub-clause 2 of
Section 221 Cr.P.C. provides for a different
offence emerged from the evidence other
than the offence for which charge is framed.
Accused may be convicted of the offence,
which he is proved to have committed,
although he was not charged with it. This
provision does not apply in this case as it is
not the case in which after evidence any
other offence is emerged apart from the
offence for which charge was framed
against the appellant. Hence, Section 221
(2) Cr.P.C. does not cover the opinion of trial
court.
Trial
court
has
made
wrong
interpretation of Section 215 Cr.P.C. and
Section 221 (2) Cr.P.C. in this regard.
Conviction of appellant in total absence of
charge under Section 27 of the Act, 1959,
cannot sustain.

An accused cannot be convicted of an
offence, taking recourse to Section 221(2)
of the Code, when no separate offence
emerges after evidence of the prosecution.

Evidence Law - Indian Evidence Act, 1872-
Section 134- Section 145- Section 155- Sole
testimony- Should be reliable- (PW5)
produced as eye-witness- Perusal of record
shows that his name is not mentioned in the
first information report as eye-witness while
FIR was lodged by his elder brother.
Investigating Officer did not record his
statement under Section 161 Cr.P.C. nor he
was made witness in charge-sheet. Legal
position is that if Investigating Officer has
not recorded any statement under Section
161 Cr.P.C., it means his first version comes
before the trial court only and there

## Text

218 INDIAN LAW REPORTS ALLAHABAD SERIES
statement or fact in relation to the fact in
issue. But it is necessary that such fact or
statement must be a part of the same
transaction. In other words, such statement
must have been made contemporaneous
with the acts which constitute the offence or
at least immediately thereafter. But if there
was an interval, however, slight it may be,
which was sufficient enough for fabrication
then the statement is not part of res
gestae."

13. Similar view was taken in the case
of Parsadi Ram Vs. State of M.P.
(Chhattisgarh) reported in 2007 (1)
F.J.C.C. 145, further adding that in order
to hold the statement res-gestae, it has to be
remembered that the statement should be
reasonable, contemporaneous and also
spontaneous.

14. On examination of the evidence of
PW-4 and applying the law laid down, the
Court finds PW-4, is an independent
witness,
whose
evidence
is
reliable;
moreso, there has been no motive which
has been attributed to him nor there is any
suggestion that there was any enmity
between this witness and the appellant, to
falsely
implicate
the
appellant.
The
arguments advanced by the learned counsel
for the appellant is this regard have no
force.

15. The delay in lodging F.I.R. has
been explained in the F.I.R. itself and the
explanation is satisfactory. Complainant
being resident of Maharastra after death of
her mother took her body to her native
place for performing last rites and when she
returned from there she has lodged the
F.I.R. So, the delay in lodging the F.I.R.
does not adversely affect the prosecution.

16. The learned trial court has
observed that incident is inside the house of
accused, so Section 106 of the Evidence
Act, the accused has to explain the
circumstances under which Smt. Lalita
suffered injuries but the accused has failed
to explain the circumstances and so adverse
inference under Section 106 of Evidence
Act can be drawn against him. Even if
these observations of the learned trial court
is not taken into consideration, even then
from the oral testimony of PW-4 Major
Abhay Juyal and other evidence on record,
the case of the prosecution stands proved
and it can safely be inferred that it is
accused and only accused who is the author
of the crime.

17. The learned trial court has
properly appreciated the entire evidence
and there is no perversity or infirmity in the
finding recorded by the learned trial court.
The learned trial court has rightly held the
accused guilty and convicted him. The
sentence passed by the trial court is also
appropriate. There is no force in this appeal
which is liable to be dismissed.

18. The criminal appeal is hereby
dismissed.

19. Lower court record along with
copy of the judgment be transmitted
immediately to the trial Court.
----------
(2021)09ILR A218
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1351 of 2018
9 All. Kalyan @ Kallu Vs. State of U.P.
219
Kalyan @ Kallu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Veerendra Kumar Shukla, Sri Ramendra
Pal Singh, Sri Pratap Pandey

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

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 215 Cr.P.C.
provides that if there is any error in
stating the charge or particulars required
and also provides if there is omission to
state the offence or those particulars,
then it would not be deemed material
unless the accused was mislead by such
omission or error or there was failure of
justice due to that reason. But, in the case
in hand, there is absolute absence of
charge under Section 27 Arms Act, 1959,
and total absence of charge is not
omission. When there is complete absence
of charge, question does not arise of any
error or omission in charge. Furthermore,
it is very pertinent to note that in this
case, even the case under Arms Act, 1959,
was not committed to the court of
sessions,
therefore,
there
was
no
committal and no charge was framed
under Section 27 of the Act, 1959, yet the
trial court convicted and sentenced the
appellant for the offence, the accused was
not charged with.

Where no case u/s 27 of the Arms Act was
committed and no charged was framed then the
same cannot be held to be an omission within
the meaning of Section 215 of the CrPc.

Criminal Law -Code of Criminal Procedure,
1973- Section 221 (2) - Sub-clause 2 of
Section 221 Cr.P.C. provides for a different
offence emerged from the evidence other
than the offence for which charge is framed.
Accused may be convicted of the offence,
which he is proved to have committed,
although he was not charged with it. This
provision does not apply in this case as it is
not the case in which after evidence any
other offence is emerged apart from the
offence for which charge was framed
against the appellant. Hence, Section 221
(2) Cr.P.C. does not cover the opinion of trial
court.
Trial
court
has
made
wrong
interpretation of Section 215 Cr.P.C. and
Section 221 (2) Cr.P.C. in this regard.
Conviction of appellant in total absence of
charge under Section 27 of the Act, 1959,
cannot sustain.

An accused cannot be convicted of an
offence, taking recourse to Section 221(2)
of the Code, when no separate offence
emerges after evidence of the prosecution.

Evidence Law - Indian Evidence Act, 1872-
Section 134- Section 145- Section 155- Sole
testimony- Should be reliable- (PW5)
produced as eye-witness- Perusal of record
shows that his name is not mentioned in the
first information report as eye-witness while
FIR was lodged by his elder brother.
Investigating Officer did not record his
statement under Section 161 Cr.P.C. nor he
was made witness in charge-sheet. Legal
position is that if Investigating Officer has
not recorded any statement under Section
161 Cr.P.C., it means his first version comes
before the trial court only and there is no
previous statement of the occurrence to
contradict or corroborate, therefore, there is
no occasion to believe the testimony of such
witness. It is not denied that conviction
cannot be based on sole testimony, but if
conviction is made on the sole testimony of
the witness then his testimony should be
wholly reliable. There should not be any
scope of suspicion in his testimony.

Although conviction can be secured on the basis
of the testimony of a solitary witness , but the
same should be reliable and truthful. Where the
witness appears for the first time in the trial,
then neither can he be contradicted with his
previous statement and nor his credibility can be
impeached by the defence, hence such witness
cannot be relied upon.

Evidence Law - Indian Evidence Act, 1872-
Section 101, Section 103- Burden of
Proof- On whom lies- Trial court has
220 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that PW5 has proved his presence
on the spot and accused has not produced
any evidence in rebuttal. In my opinion,
this was the burden on prosecution to
prove the presence of PW5 at the place of
occurrence and it was not the burden on
accused to make its rebuttal.

It is settled law that the burden of proving a
particular fact lies on the witness/ person who
asserts such fact and the said burden cannot be
shifted on the accused for rebutting the said
fact. ( Para 11, 12, 14, 15, 16, 17)

Criminal Appeal Allowed. (E-3)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the appellant-Kalyan @ Kallu @ Netrapal
Singh against the judgment and order dated
22.11.2017, passed by learned Additional
Sessions Judge, Court No.3, Shahjahanpur,
in Session Trial No.1087 of 2003 (State vs.
Kalyan @ Kallu @ Netrapal Singh) in Case
Crime No.91 of 2003 under Section 304
IPC,
Police
Station-Katra,
DistrictShahjahanpur, whereby the appellant was
convicted under Section 304 (2) and
sentenced for 10 years' R.I. and also
Rs.10,000/- fine and in default of fine two
years simple imprisonment. The appellant
has also been convicted under Section 27
Arms Act, 1959, and sentenced for three
years imprisonment and Rs.2,000/- fine and
in default of fine, six months simple
imprisonment. All sentences were directed
to run concurrently.

2. The brief facts of the case are that a
written-report (Ex.ka1) was submitted in the
police station by the informant Ramvir
Sharma. It was stated in written-report that on
27.4.2003, there was marriage of a girl in the
family of Rajendra Singh in VillageChavarkhas, P.S.-Katra, where his father
went for Erudition (Panditai). Accusedappellant Kalyan was also there from the side
of bride. At the time of dwarchar, appellant
was making fires from his licencee-gun, out
of which one fire hit the shoulder of his father
and he died on the spot. The occurrence took
place at about 9:00 p.m. It is also stated that
informant was on duty as Home-Guard in
Bareilly and on getting the information of his
father's death, he went to the police station on
the next day and submitted the written-report.
It is also stated that the occurrence was seen
by many people of village, who were present
in marriage.

3. On the basis of above written-report,
Case Crime No.91 of 2003 was registered
under Section 308 IPC against appellantKalyan s/o Gajraj Singh. The inquest report
of deceased (Ex.ka3) was prepared on
28.4.2003 and injury on his right shoulder
was found. Subsequently, dead-body was
sent for postmortem, which was conducted in
District Hospital Shahjahanpur on 29.4.2003
and antemortem injury of entry wound of
fire-arm measuring 8cm x 7cm on the right
side of chest below the shoulder was found.
Antemortem injury was said to be the cause
of death of the deceased-Rati Ram.

4. After completion of investigation,
Investigating Officer submitted chargesheet against appellant under Section 304
IPC and under Section 27 Arms Act, 1959.
Learned
Chief
Judicial
Magistrate,
Shahjahanpur, committed the case to the
court of session under Section 304 IPC and
charge was also framed under Section 304
IPC by trial court. After completion of trial,
the trial court convicted and sentenced the
appellant under Section 304 (2) IPC and
Section 27 Arms Act, 1959. Hence, this
appeal.

5. Heard Shri Veerendra Kumar
Shukla, learned counsel for the appellant,
9 All. Kalyan @ Kallu Vs. State of U.P.
221
Shri B.A.Khan, learned AGA for the State
and perused the record.

6. Learned counsel for the appellant
argued that appellant has been falsely
implicated in this case; there was no motive
for the appellant to commit the crime as
alleged by prosecution. He submits that
appellant had no enmity with the deceased,
therefore, there was no reason with him to
commit such crime. Submission of counsel
for the appellant is that three witnesses of
fact are produced by prosecution. Ramvir
Sharma (PW1) is the son of the deceased,
but he was only informant and it was
admitted case of prosecution that PW1 was
not present on the spot at the time of
occurrence. He was doing his duty as
Home-Guard at Bareilly and on getting
information of death of his father, he came
from Bareilly on the next day and lodged
the first information report. Therefore,
PW1 has not seen any occurrence. Hence,
his testimony cannot be believed on the
point that appellant killed his father. It is
next submitted that Smt.Neelu Singh
(PW3) is another witness of fact, who has
been produced by prosecution as eyewitness, but she has not supported the
prosecution version in her statement and
said that there was so many people, who
were making 'Hersh-firing' and there were
40-50 fires in all. She does not know whose
fire hit the deceased. Learned counsel
submitted that PW3 was declared hostile by
prosecution and in her cross-examination,
she denied her statement under Section 161
Cr.P.C. also. Hence, prosecution does not
get any support from the statement of PW3
also.

7. Learned counsel for the appellant
also submitted that next witness of fact is
Sanjeev Kumar (PW5), who is son of the
deceased. He was not present at the place
of occurrence. If he would have been
present there and would have seen the
occurrence, he must have been made
witness in first information report because
it was lodged by the elder brother, namely,
Sanjeev Kumar (PW5). It was very natural
to mention his name in the FIR, but it was
not
there
in
the
FIR.
Moreover,
Investigating Officer did not record his
statement under Section 161 Cr.P.C. and he
was not made witness in charge-sheet also.
Learned counsel for the appellant further
submits that even if PW5 was produced as
eye-witness, but he is not at all supported
the prosecution case because his statement
is contradictory. In examination-in-chief,
PW5 has stated the case of 'Hersh-Firing' at
about 9:00 pm at the time of Dwarpooja,
but in his cross-examination, he has stated
that at the time of occurrence Pooja was
complete. Bride-side guests have gone
from there. His father was sitting on
chabootra. At that time, appellant came
there and exhorted the deceased and
pointing out the barrel of gun towards the
chest of his father, he shoot him. Hence, he
altogether
changed
the
colour
of
prosecution case in his cross-examination,
but trial court believed his testimony and
on his sole testimony, convicted the
appellant. It was grave error on the part of
the trial court. Learned trial court failed to
appreciate the evidence correctly and
legally and unlawfully convicted the
accused-appellant.

8. Learned counsel for the appellant
emphasized that during trial, no charge
under Section 27 Arms Act, 1959, was
farmed, but trial court also convicted the
appellant under Section 27 of Act, 1959,
and sentenced for three years. He argued
that if no charge is framed for any offence
then conviction cannot be made for that
offence. Lastly, it was contended by
222 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the appellant that maximum it
can be the case of negligence under Section
304-A IPC, if court comes to the
conclusion it to be an accidental firing.

9. No other argument was placed
from the side of appellant and it was prayed
to allow the appeal and quashing the
conviction of sentence.

10. Learned AGA opposed the
submissions made by learned counsel for
the appellant and argued that appellant was
named
in
first
information
report.
Admittedly, firing was made at the time of
occurrence by the appellant. Appellant had
knowledge of the fact that by making such
type of firing, somebody may get injured
and injury could be proved fatal. There was
injury to the deceased on his vital part.
Learned AGA also submitted that although
PW1-informant was not eye-witness and
PW3 turned hostile, but PW5-Sanjeev
Kumar has supported the prosecution case.
He is eye-witness and present at the place
of occurrence with his father-deceased. He
has fully supported the prosecution version
and named only appellant in his statement.
Learned AGA said that appellant is the sole
accused in this case, hence, there was no
false implication and moreover, there was
no reason for his false implication. It is also
submitted by learned AGA that after the
arrest of the appellant by the Investigating
Officer, the gun used in commission of the
crime was recovered from the appellant,
which was his licencee-gun. The case is
fully proved against the appellant and trial
court rightly convicted him. Hence, appeal
is liable to be dismissed.

11. First of all, this Court would like
to consider the legal issue of conviction
under Section 27 Arms Act, 1959. Perusal
of record shows that factual position is that
the case under Section 27 Arms Act was
never committed to the court of sessions
and no charge for that offence was framed
by trial court. When there was no charge
under Section 27 of the Act, 1959, it means
that there was no trial of accused for the
aforesaid offence. Even then trial court held
the appellant guilty and convicted him
under Section 27 of the Act, 1959. In this
regard, trial court has stated in judgment
that in charge-sheet, Investigating Officer
has mentioned that offence under Section
304 IPC and Section 27 Arms Act, 1959,
are fully proved against the accusedKalyan. Hence, charge-sheet is being
submitted against him. Trial Court has also
stated
that
in
spite of
charge-sheet
submitted against the appellant under
Section 27 Arms Act along with Section
304
IPC,
Chief
Judicial
Magistrate,
Shahjahanpur, did not mention the offence
under Section 27 Arms Act, 1959 in
committal order dated 4.8.2003, which
seems clerical error. It has further stated
that trial court framed charge under Section
304 IPC only and not under Section 27 of
Arms Act, 1959. It is also a clerical error.
Trial court further mentioned in the
judgment that accused was well aware of
the fact that he was facing trial for killing
the deceased by making fire with his
licencee-gun,
therefore,
he
was
not
prejudiced for not framing charge under the
Act, 1959. Further, trial court took the
recourse of Section 215 of Cr.P.C. and held
that if there is error in charge or omission,
it will not be material unless it has mislead
the accused and consequently failure of
justice is there. In this case, accused knew
that it was a case for making fire by his
licencee-gun, therefore, he was not mislead
by omission as provided under Section 215
Cr.P.C. Trial court also took the recourse of
sub section 2 of Section 221 Cr.P.C., which
says that if it is proved that accused has
9 All. Kalyan @ Kallu Vs. State of U.P.
223
committed other offence different from the
charge framed against him, accused can be
held guilty for that offence, athough the
charge was not framed for that offence. For
ready reference, Section 215 Cr.P.C. is
quoted herein as under:

"Section 215 in the Code of
Criminal Procedure, 1973

215. Effect of errors. No error in
stating either the offence or the particulars
required to be stated in the charge, and no
omission to state the offence or those
particulars, shall be regarded at any stage
of the case as material, unless the accused
was in fact misled by such error or
omission, and it has occasioned a failure of
justice."

12. The above provision states
regarding error or omission in charge.
Section 215 Cr.P.C. provides that if there is
any error in stating the charge or particulars
required and also provides if there is
omission to state the offence or those
particulars, then it would not be deemed
material unless the accused was mislead by
such omission or error or there was failure
of justice due to that reason. But, in the
case in hand, there is absolute absence of
charge under Section 27 Arms Act, 1959,
and total absence of charge is not omission.
When there is complete absence of charge,
question does not arise of any error or
omission in charge. Furthermore, it is very
pertinent to note that in this case, even the
case under Arms Act, 1959, was not
committed to the court of sessions,
therefore, there was no committal and no
charge was framed under Section 27 of the
Act, 1959, yet the trial court convicted and
sentenced the appellant for the offence, the
accused was not charged with. It is very
strange that trial court opined that total
absence of charge is clerical error. Hence,
this situation of total absence of charge
cannot be said to be the omission in
framing of charge.

13. Further, trial court has taken the
recourse of Section 221 (2) Cr.P.C., which
reads as under:

"Section 221 (1)....

(2) in the Code Of Criminal
Procedure, 1973

(2) If in such a case the accused
is charged with one offence, and it appears
in evidence that he committed a different
offence for which he might have been
charged under the provisions of sub-
section (1), he may be convicted of the
offence which he is shown to have
committed, although he was not charged
with it.

14. Sub-clause 2 of Section 221
Cr.P.C. provides for a different offence
emerged from the evidence other than the
offence for which charge is framed.
Accused may be convicted of the offence,
which he is proved to have committed,
although he was not charged with it. This
provision does not apply in this case as it is
not the case in which after evidence any
other offence is emerged apart from the
offence for which charge was framed
against the appellant. Hence, Section 221
(2) Cr.P.C. does not cover the opinion of
trial court. Trial court has made wrong
interpretation of Section 215 Cr.P.C. and
Section 221 (2) Cr.P.C. in this regard.

15. Hence, conviction of appellant in
total absence of charge under Section 27 of
the Act, 1959, cannot sustain.

16. Now it comes the offence under
Section 304 (2) IPC. Prosecution story is that
on 27.4.2003, there was marriage of a girl in
224 INDIAN LAW REPORTS ALLAHABAD SERIES
the family of Rajendra Singh in VillageChavarkhas, P.S.-Katra, where his father
went for Erudition (Panditai). 'Harsh-firings'
were made there and out of which one fire by
appellant hit the shoulder of informants'
father-Ratiram, due to which he died. It is
admitted case of prosecution that informantRamvir Sharma (PW1) was not there at the
place of occurrence. He was on his duty as
Home-Guard at Bareilly. On getting the
information of death of his father, he came to
the police station and lodged the FIR. So,
PW1 is not the eye-witness of the occurrence.
Prosecution has produced Neelu Singh
(PW3) as eye-witness where she said in her
statement that Ratiram Pandit came in the
marriage. There was crowd of 400-500
people. In harsh-firing, somebody's fire hit
the deceased and whose fire hit the deceased,
she does not know because at that time, she
was inside the house and there was 40-50
fires in all. This witness was declared hostile
and nothing was extracted from her crossexamination by prosecution even she denied
her statement under Section 161 Cr.P.C. So,
this witness did not support the prosecution
case. Sanjeev Kumar (PW5), who is son of
the deceased has also produced as eyewitness. Perusal of record shows that his
name is not mentioned in the first information
report as eye-witness while FIR was lodged
by his elder brother. Investigating Officer did
not record his statement under Section 161
Cr.P.C. nor he was made witness in chargesheet. Legal position is that if Investigating
Officer has not recorded any statement under
Section 161 Cr.P.C., it means his first version
comes before the trial court only and there is
no previous statement of the occurrence to
contradict or corroborate, therefore, there is
no occasion to believe the testimony of such
witness. Moreover, in this case, the testimony
of Sanjeev Kumar (PW5) is not at all reliable.
Trial court based its finding of conviction
only on the basis of testimony of PW5. It is
not denied that conviction cannot be based on
sole testimony, but if conviction is made on
the sole testimony of the witness then his
testimony should be wholly reliable. There
should not be any scope of suspicion in his
testimony. This is not the position in the
present case. PW5 has stated in his
examination-in-chief that he had gone in the
marriage with his father and at 9:00 p.m. at
the time of 'dwarchar', accused started harshfiring and out of which, one fire hit his father,
who died on the spot. But, in his crossexamination, PW5 changed the entire
prosecution story and stated that at the time
of occurrence, pooja was over, the bride-side
guests had gone from there, his father was
sitting on chabootra of Rajendra Singh,
accused came there and said "pandit hosh
mein
aao,
tumko goli
maar denge".
Subsequently, the accused turned the
barrel of gun towards the chest of his
father and shoot him. This was not at all
the case of prosecution. Trial court
committed gross-error in holding that it
was only exaggeration. It is very important
to note
that
further
in his
crossexamination, PW5 specifically denied the
case of 'harsh-firing. He has stated,
"mukhya pariksha mein harsh-firing ki
baat galat hai. Kallu ne seedhe goli mari
thi". In this way, PW5 absolutely resiles
from the prosecution case and make
contradictory
statement
in
his
examination-in-chief
and
in
crossexamination. Such type of sole testimony
of any witness cannot be relied at all. It is
very strange that trial court has opined
regarding the statement of PW5 that there
was no material contradiction in his
statement and his presence at the place of
occurrence is not doubtful. It is very
perverse appreciation on evidence of PW5.
Trial court has miserably failed to
appreciate the evidence of PW5 in right
persepective.
9 All. Kalyan @ Kallu Vs. State of U.P.
225

17. Moreover, trial court has stated
that PW5 has proved his presence on the
spot and accused has not produced any
evidence in rebuttal. In my opinion, this
was the burden on prosecution to prove the
presence of PW5 at the place of occurrence
and it was not the burden on accused to
make its rebuttal. There must be close
scrutiny of the sole testimony of a witness
if court is going to believe his testimony
and holding the accused guilty on the basis
of sole testimony, but trial court has not
scrutinized
the
testimony
of
PW5
meticulously.
The
contradiction
of
statement of PW5 in his examination-inchief and cross-examination is so grave and
material that it goes to the route of the case
and shatters the prosecution case. It is in
the opinion of trial court that Ramvir
Sharma (PW1) has told in his examinationin-chief that accused was making fire and
his fire hit his father. Trial court has
believed this statement of PW1. It is very
shocking because it is admitted case of
prosecution that PW1 was not present at the
place of occurrence.

18. Hence, PW1-informant is not eyewitness, PW3 alleged eye-witness has
turned hostile and has not supported the
prosecution case and testimony of PW5
does not inspire the confidence at all.
Therefore, trial court has erred in placing
reliance on the testimony of PW5.
Moreover, prosecution has failed to prove
that the fire of appellant hit the deceased
because it is the statement of Investigating
Officer-Krishna Pal Mishra (PW4) that
there were many people in the marriage and
several persons were making fire there.
Many empty cartridges were lying on the
ground. Hence, as per the statement of
Investigating Officer there were many
empty cartridges at the place of occurrence,
but only a single empty cartridge was
picked up by the I.O. because the recovery
memo of empty cartridges (Ex.ka7) shows
that from the place of occurrence, one
empty cartridges of .12 bore was recovered.
This cartridge was fired from the licenceegun of the accused. Prosecution has failed
to establish how the above opinion was
given by Sub-Inspector while preparing the
recovery memo. I.O. (PW4) recovered the
licencee-gun of the appellant at the time of
his arrest. It proves that I.O. had recovered
the gun, alleged to be used in the crime and
empty
cartridge
from
the
place
of
occurrence, yet these were not sent to
Forensic Science Laboratory for seeking
ballistic report as there is no ballistic report
on the record nor there is any document on
record to show that gun and empty
cartridge
were
sent
for
ballistic
examination. Hence, prosecution has failed
to establish that the recovered empty
cartridge from the place of occurrence was
fired from the gun, recovered from the
appellant. In this way also, prosecution has
failed to establish that the fire of appellant
hit the deceased and caused his death.

19. Keeping in view the above
discussion, this Court finds that the finding
recorded by trial court on the basis of sole
testimony of PW5 is erroneous and
perverse. Trial court has committed grosserror in believing the sole testimony of
PW5 and conviction should not have been
based on such type of testimony, which
could not support the prosecution case at
all. Hence, the conviction and sentence of
appellant cannot be sustained and the
appeal is liable to be allowed.

20. Accordingly, the appeal is
allowed.

20. Conviction and sentence of
appellant under Section 304 (Part-II) of
226 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC and under Section 27 of Arms Act,
1959, is hereby set aside. He is acquitted of
charges framed against him. Appellant's
personal bond is cancelled and sureties
stand discharged.
----------
(2021)09ILR A226
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1407 of 2011

Jagveer Singh @ Bantu
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Awadhesh Kumar Srivastav, Sri R.P.
Srivastava

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

Criminal Law - Indian Penal Code, 1860-
Sections 498A & 306- Conviction under-
Prosecution witness PW1- and PW2- have
failed
to
prove
the
version
of
FIR
regarding
the
demand
of
additional
dowry, torture and killing the deceased by
administering the poison to her. The
version of the First Information Report is
the genesis of this case, but during the
course of investigation the suicide-note of
deceased was found and it changed the
entire story of the prosecution.

Where the prosecution changes the entire story
subsequently and fails to prove the initial
version alleged in the FI.R, which is the genesis
of the case of the prosecution, then the same
renders the story of the prosecution doubtful.

Criminal Law - Indian Penal Code, 1860-
Sections 107 & 306- Abetment of Suicide-
Before a person may be said to have
abetted the commission of suicide, he
must have played an active role by an act
of instigation or by doing certain act to
facilitate the commission of suicide. As per
provision of Section 107 IPC, it is very
much clear that for abetment a person
should do something to instigate any
person to do something or engages with
one or more persons in any conspiracy to
do that thing or intentionally aids, by any
act or illegal omissions, to do that
particular thing.

Settled law that to make an offence of suicide, it
is essential to prove that the accused had
intentionally instigated the deceased to commit
suicide.

Criminal Law - Indian Penal Code, 1860-
Sections 107 & 306- There is absolutely
nothing in the suicide-note suggesting
abetment to commit suicide. There is
nothing in the suicide note which can be
said to be proximate reason to commit
suicide by the deceased. The aforesaid
suicide note does not show any mens rea
on the part of the appellant. No guilty
mind of appellant is shown by any
statement in suicide note as referred by
the trial court. Further, suicide note does
not show the fact that there was any
instigation or even cruelty on the part of
appellant due to which the deceased was
left with no option but to commit suicide
because if the appellant had separated the
deceased
from
his
life,
it
was
not
compelling reason which put the deceased
in a situation where she had no option but
to commit suicide.

Where the suicide note fails to show that there
was any proximate reason to commit suicide or
there was any criminal intent, instigation or
even cruelty of the accused compelling the
deceased to commit suicide, then conviction of
the accused on basis of such suicide note
cannot be upheld. ( Para 12, 16, 20)

Criminal appeal allowed. (E-3)

Judgements/ Case law relied upon:-