# Kishan Pratap Singh v. State of U.P. 886 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 8 ILRA 885
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-21
- **Case number:** Criminal Appeal No. 4168 of 2019
- **Bench:** Ashwani Kumar Mishra, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kishan-pratap-singh-v-state-of-u-p-886-indian-law-reports-allahabad-series-52483
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 437(A) - Indian
Penal Code, 1860 - Section - 302: - Appeal
- against conviction & sentence - offence of
murder - FIR, lodged against two accused -
investigation - cause of death was ascertained
as a result of throttling - during investigation,
accused appellant come forward and made extra
judicial confession that he had attempt rape on
the deceased and later throttled her to death -
relying
upon
the
confession
of
accused
appellant, investigation officer expunged the
names of accused persons named in FIR -
charge sheet u/s302 IPC - conviction -
sentenced with Life imprisonment - Appeal -
test of evidentiary value of extra judicial
confession - court finds that, sheet anchor of
the prosecution case to implicate the accused
appellant is the extra judicial confession made
by him as well as the testimony of PW-3 who is
child witness (son of the deceased) - there is no
other eye witness of incident - there was a
serious lapse on part of the investigation officer
in the mater - accused appellant who is the real
brother of informant St.d that informant had an
affairs with the lady with whom he later
solemnized his second marriage within a month
of the ghastly murder - in the light of the above
defence evidence, it would not be safe to rely
upon the informant alone to convict the accused
- when we test the veracity of the St.ment of
the informant bearing in mind the surrounding
circumstances, which reflects adversely on the
reliability of the informant, we do not find his
testimony to be above doubt - held - Extra
Judicial confession by its very nature is
otherwise a weak piece of evidence - PW-3 is a
child witness and it would be prudent and
desirable to look for other evidence, for the
purposes of corroboration, which is found
lacking - and two other witnesses to the extra
judicial confession have not supported the
prosecution case and we otherwise suspect the
credibility of the disclosure made by PW-1, apart
from this, there is no other evidence to implicate
the accused - in such circumstance, prosecution
has succeeded in proving the guilt of accused
appellant,
beyond
reasonable
doubt,
is
consequently reversed - Appeal is allowed -
conviction and sentence is set aside - direction
issued accordingly. (Para - 30, 32, 33, 35, 36,
38, 39)

Appeal allowed. (E-11)

List of Cases cited:

Kalinga @ Kushal Vs St. of Karn. (2024 INSC
124),

## Text

8 All. Kishan Pratap Singh Vs. State of U.P.
885
 Provided that if at any time
afterwards it appears to the Board on
receiving a report from the probation
officer or otherwise, that the juvenile in
conflict with law has not been of good
behaviour during the period of supervision
or that the fit institute on under whose care
the juvenile was placed is no longer able or
willing to ensure the good behaviour and
well-being of the juvenile it may, after
making such inquiry as it deems fit, order
the juvenile in conflict with law to be sent
to a special home.

 (4) The Board shall while making a
supervision
order
under
sub-section(3),
explain to the juvenile and the parent,
guardian or other fit person or fit institution,
as the case may be, under whose care the
juvenile has been placed, the terms and
conditions of the order and shall forthwith
furnish one copy of the supervision order to
the juvenile, the parent, guardian or other fit
person or fit institution,as the case may be,
the sureties, if any, and the probation officer."

35. Considering the fact that the
incident occurred way back in the year 1982,
and the appellant who has been declared as
juvenile in conflict of law in terms of
Juvenile Justice (Care and Protection of
Children) Act, 2000 by Sessions Court after
due inquiry in its report dated 28.09.2022, his
present age appears to be around 60 years, he
cannot be sent to special home for any period
up to maximum 3 years at this juncture.

36. Therefore, on giving due
consideration to the nature and gravity of the
offence, long pendency of appeal and a
duration of 42 years between the offence and
disposal of present appeal instituted by
appellants, we find it just proper and
expedient that the surviving appellant Ram
Bahadur be dealtwith under the provisions of
Section 15(1)(d) of Juvenile Justice (Care and
Protection of Children) Act, 2000, and he
may be directed to pay fine, as he is now an
earning person.

37. The judgment and finding of
conviction recorded by learned trial court in
respect of surviving appellant Ram Bahadur
is affirmed, but sentence is set-aside in the
light of aforesaid discussion, as he has been
found juvenile in conflict of law at the time of
the offence which took place way back in the
year 1982. On exercising the powers under
Section 15 of the Juvenile Justice (Care and
Protection of Children) Act, 2000, we direct
the
appellant
Ram
Bahadur
to
pay
Rs.50,000/- as fine in lieu of sentence and
also as final order in terms of section 15(1)(d)
of Act No.56 of 2000 as stated above, which
will be deposited with High Court Mediation
Center within two months of uploading of
this judgment on the website of High Court.

38. Appeal is accordingly disposed
of.

39. Let a copy of this judgment be
forwarded to the learned Session Judge,
Budaun for necessary action and compliance.
The lower court record be sent back to court
concerned for necessary action immediately.
----------
(2024) 8 ILRA 885
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.08.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Appeal No. 4168 of 2019

Kishan Pratap Singh ...Appellant
Versus
State of U.P. ...Respondent
886 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Akhilesh Kumar Mishra, Sri Birendra Singh,
Sri Kamlesh Kumar Tripathi, Sri Lal Mani Singh,
Sri Ulajhan Singh Bind

Counsel for the Respondent:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 437(A) - Indian
Penal Code, 1860 - Section - 302: - Appeal
- against conviction & sentence - offence of
murder - FIR, lodged against two accused -
investigation - cause of death was ascertained
as a result of throttling - during investigation,
accused appellant come forward and made extra
judicial confession that he had attempt rape on
the deceased and later throttled her to death -
relying
upon
the
confession
of
accused
appellant, investigation officer expunged the
names of accused persons named in FIR -
charge sheet u/s302 IPC - conviction -
sentenced with Life imprisonment - Appeal -
test of evidentiary value of extra judicial
confession - court finds that, sheet anchor of
the prosecution case to implicate the accused
appellant is the extra judicial confession made
by him as well as the testimony of PW-3 who is
child witness (son of the deceased) - there is no
other eye witness of incident - there was a
serious lapse on part of the investigation officer
in the mater - accused appellant who is the real
brother of informant St.d that informant had an
affairs with the lady with whom he later
solemnized his second marriage within a month
of the ghastly murder - in the light of the above
defence evidence, it would not be safe to rely
upon the informant alone to convict the accused
- when we test the veracity of the St.ment of
the informant bearing in mind the surrounding
circumstances, which reflects adversely on the
reliability of the informant, we do not find his
testimony to be above doubt - held - Extra
Judicial confession by its very nature is
otherwise a weak piece of evidence - PW-3 is a
child witness and it would be prudent and
desirable to look for other evidence, for the
purposes of corroboration, which is found
lacking - and two other witnesses to the extra
judicial confession have not supported the
prosecution case and we otherwise suspect the
credibility of the disclosure made by PW-1, apart
from this, there is no other evidence to implicate
the accused - in such circumstance, prosecution
has succeeded in proving the guilt of accused
appellant,
beyond
reasonable
doubt,
is
consequently reversed - Appeal is allowed -
conviction and sentence is set aside - direction
issued accordingly. (Para - 30, 32, 33, 35, 36,
38, 39)

Appeal allowed. (E-11)

List of Cases cited:

Kalinga @ Kushal Vs St. of Karn. (2024 INSC
124),

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This criminal appeal is preferred
by the accused appellant Kishan Pratap
Singh challenging the judgment and order
dated 17.04.2019, passed by the Sessions
Judge, Kannauj in Sessions Trial No.20 of
2011 (State of U.P. Vs. Kishan Pratap
Singh), arising out of Case Crime No. 449
of 2010, under Section 302 IPC, Police
Station-Tirva, District-Kannauj, whereby
he has been sentenced to life imprisonment
along with fine of Rs.20,000/- and in
default of payment of fine to undergo six
months rigorous imprisonment.

2. Informant in the present case is
the husband of the deceased who gave a
written report (Ex.Ka-1) on 05.10.2010
stating that he was in his general
merchandise shop at the Plaza Market in
Tirva. He received a phone call from his
brother (accused appellant) that his children
are weeping at the house and that he
(informant) should go and enquire as to
what is the matter. After closing the shop,
informant came to his house at 10:15 p.m.
and found the doors of his house open.
Dead body of his wife was lying on the
floor and her clothes were lying helterskelter. Upon inquiry he found his wife
8 All. Kishan Pratap Singh Vs. State of U.P.
887
dead. Apprehension was expressed by the
informant that due to enmity on account of
a dispute relating to chabutra (platform) his
wife may have been done to death by
Anoop Singh and Deepu Singh. With these
allegations the first information report
came to be lodged under Section 302 I.P.C.
as Case Crime No.449 of 2010. Anoop
Singh and Deepu Singh were the persons
shown as accused in the FIR registered at
23:30 p.m. on the date of incident i.e.
05.10.2010.

3. Investigation proceeded in the
matter and the inquest started at 1:00 a.m.
on 06.10.2010. The inquest witnesses
include the accused appellant Kishan
Pratap Singh along with others. The
inquest witness opined that the death was
homicidal
and
that
postmortem
be
conducted to ascertain the cause of death.
The body was sealed and sent to mortuary
for
conducting
postmortem.
The
postmortem
was
conducted
on
06.10.2010
at
12:30
p.m.
wherein
following injuries were found on the
deceased:

 "1-Abraded contusion 3 cm X 11/2 cm below the angle of the mandibular
bone.

 2- Abraded contusion 0.5 cm X
0.5 cm and is below injury no. 1.

 3-Abraded contusion 0.5 cm X
0.5cm below Injury No. 2.

 4- Abraded contusion 2 cm X 1
cm on left side of neck, 5 cm below the
right ear.

 5- Abraded contusion 1.5 cm X 1
cm just below right angle of mandibule.
 6- Abraded contusion 1 cm X 0.5
cm medial to injury no. 5.

 7- Abraded contusion 2 cm X 1
cm lateral to injury no. 5 .

 8-Abraded contusion 1 cm X 1 cm
on left elbow joint posterior aspect.

 9- Abrasion 2 cm X 2 cm medial
aspect of left hand, 4 cm below base of
little finger.

 10- Abrasion 1 cm X 1 cm and is
2 cm lateral to injury no.9."

 The
cause
of
death
was
ascertained as asphyxia as a result of
throttling.

4. While investigation was pending
in the matter, a second report was made by
the informant on 25th of November, 2010
stating that accused appellant Kishan
Pratap Singh came to him and confessed
that he attempted rape on the deceased and
later throttled her to death. In the attempt to
commit rape several injuries were caused to
the deceased and since he apprehended that
the deceased will lodge a complaint about
the incident to the informant, as such he
had no option but to throttle the deceased,
whereafter he fled. This extra judicial
confession made by accused to the
informant in the presence of P.W.-4 and
P.W.-6 forms the basis of the second report
dated 25.11.2010, which is exhibited
during trial as Ex. Ka-3. The Investigating
Officer relying upon this extra judicial
confession expunged the name of Anoop
Singh and Deepu Singh from the category
of accused persons vide Parcha No.6, and
submitted charge sheet under Section 302
I.P.C. against the accused appellant on
02.12.2010.
The
Magistrate
took
888 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of charge sheet and committed
the case to the court of Session at Kannauj
where the case got registered as Sessions
Trial No.20 of 2011. The accused appellant
was charged of offence under Section 302
I.P.C., which the accused denied and
demanded trial.

5. During the course of trial
following documentary evidences have
been produced:-

 "i.
F.I.R.,
Ex.Ka.11,
dt.
05.10.2010.

 ii. Written Report, Ex.Ka.1, dt.
05.10.2010.

 iii.
Application,
Ex.Ka.3,
dt.
25.11.2010.

 iv. Recovery Memo of pieces of
bangle, Ex.Ka.7, dt. 06.10.2010.

 v. P.M. Report, Ex.Ka.4, dt.
06.10.2010.

 vi. Panchayatnama, Ex.Ka.2, dt.
06.10.2010.

 vii. Charge-sheet, Ex.Ka.6, dt.
02.12.2010.

 viii. Charge framed by Sessions
Judge, dt. 17.02.2012.

 ix. Note framed by Sessions
Judge, dt. 17.02.2012."

6. Informant has been produced in
evidence as P.W.-1 during trial. He has
supported the prosecution case. He has
verified both the reports made by him and has
stated that the accused appellant confessed
his guilt before him on 25.11.2010. During
cross
examination,
the
informant
has
admitted that soon after the murder of the
deceased he re-married and is now living
with his second wife. He has denied the
suggestion that only to solemnize the second
marriage he had himself killed his earlier
wife (deceased).

7. Dr. Sunil Katyal, who has
conducted the postmortem has been produced
as P.W.-2. He has proved the postmortem
report as per which the hyoid bone of the
deceased was fractured and the cause of death
was throttling.

8. P.W.-3 Vansh Pratap Singh is the
three year old son of the deceased, who was
about nine years of age when his statement
was recorded during trial. P.W.-3 has
supported the prosecution case according to
which his mother was done to death by the
accused uncle and that he saw the accused
throttling his mother. The accused thereafter
fled from the house. He has further stated that
on the arrival of Police he had informed the
I.O. that it was his uncle who had committed
the murder of his mother. The police
personnel however never met him thereafter
and it was for the first time in court that he
has specifically implicated the accused
appellant. He clarified that within a month of
the death of his own mother his second
mother had arrived, who loves him.

9. P.W.-4 is Ashish Singh Chauhan,
who allegedly was the person before whom
extra judicial confession was made by the
accused before P.W.-1. In the crossexamination
P.W.-4
has
however
not
supported the prosecution case and has stated
that his signature were obtained on blank
pages by the Police.

10. P.W.-5 is Smt. Yuvraj Kumari.
She is the mother of the accused appellant
8 All. Kishan Pratap Singh Vs. State of U.P.
889
and the informant. She has not supported
the prosecution case and is declared hostile.

11. P.W.-6 is Saurabh Singh, who
is the brother of the deceased and the
second witness of extra judicial confession
of the accused. He too has not supported
the prosecution case and has been declared
hostile.

12. P.W.-7 is the retired Circle
Officer Rajendra Dhar Dwivedi, who
conducted the investigation in the matter.
According to him, he recorded the
statement of the informant on 06.10.2010.
He also claims that additional Parcha No.1A was issued by him during the course of
investigation on 06.10.2010 itself. He has
explained the steps taken by him during the
course of investigation. The testimony of
P.W.-7 shall be referred to a little later,
when the fairness of investigation is
examined by us.

13. P.W.-8 is Sub-Inspector
Virendra Kumar. He is the Officer who
conducted inquest and has proved the
police papers.

14. The above materials produced
during trial have been confronted to the
accused, who has stated that he has been
falsely implicated. In reply to question no.12,
accused has stated that the informant
solemnized second marriage with Smt.
Sangita and that he had an affair with her
during life time of deceased. He further stated
that the Police started suspecting the
informant of murdering his own wife
whereafter the informant, in collusion with
the Police, has falsely implicated him. The
defence has also adduced testimony of
Arvind Singh as D.W.-1. He is the other
brother of the informant and the accused
appellant. He has alleged that the informant
had an affair with one Sangita and on account
of his extra marital affair quarrel used to
occur between the deceased and the
informant. D.W.-1 claims that he used to
mediate to resolve their differences. He has
stated that informant married Sangita just
after a month of the murder of his wife. He
has asserted that accused appellant has no
concern with the incident and has been
falsely implicated by the informant.

15. The court of Session on the basis
of evidence led in the matter has convicted
the accused appellant for the aforesaid
offence,
aggrieved
by
which
accused
appellant has preferred the present appeal.

16. Learned counsel for the
appellant submits that the prosecution
evidence is not reliable particularly the extra
judicial confession, which is absolutely
concocted. Learned counsel further contends
that this is a case in which the accused
appellant has been falsely implicated by his
own brother, after killing his wife so as to
marry the lady with whom he was having an
affair and to achieve his mischievous design
he has manipulated evidence in connivance
with the Police and falsely implicated the
accused appellant. Learned counsel also
urged that the testimony of P.W.-3 is wholly
unbelievable inasmuch as if this witness had
actually seen the incident in the manner
claimed by him and informed his father and
the Police there exists no reason for the
prosecution to wait for almost 50 days to
implicate the accused appellant in the matter.
It is also contended that the version of extra
judicial confession is a well thought out
excuse invented by the informant in collusion
with the Investigating Officer.

17. Learned A.G.A., on the other
hand, submits that the evidence on record
has been correctly appreciated by the court
890 INDIAN LAW REPORTS ALLAHABAD SERIES
of Session and the conviction of the
accused appellant requires no interference.

18. We have heard Shri Kamlesh
Kumar Tripathi, learned counsel for the
appellant and Shri Pankaj Kumar Tripathi,
learned A.G.A. for the State and have
perused the materials on record.

19. The first version of the incident
is based on the intimation of the informant
given on 05.10.2010, as per which he
received information from his brother
(accused) on his mobile stating that his
children are crying at home and that he
should go and find out the reason. It is
thereafter that the informant rushed to his
house and saw the dead body of his wife.
Apprehension
was
initially
expressed
against Anoop Singh and Deepu Singh of
murdering the deceased on account of a
dispute relating to chabutra (platform). The
FIR with these allegations got registered at
11:30 p.m. on 05.10.2010. The inquest
started at 01:00 a.m. in the night and was
concluded by 04:00 a.m. on 06.10.2010.
The inquest witnesses include the accused
appellant also which shows that he was
present at the time of inquest and had not
fled, as was alleged by P.W.-3.

20. In the first information report
or even at the stage of inquest there is
nothing on record to suspect that it was the
accused appellant who had committed the
offence. This position clearly contradicts
the version of P.W.-3, as per which he saw
the
accused
appellant
throttling
the
deceased and informed both his father and
the Police about it.

21.

The
postmortem
was
conducted in which the cause of death was
ascertained as throttling. As per the
prosecution, the implication of the accused
appellant surfaced only on the basis of an
extra judicial confession made by the
accused in the presence of the informant as
well as Ashish Singh Chauhan and Saurabh
Singh. Ashish Singh Chauhan and Saurabh
Singh have been produced as P.W.-4 &
P.W.-6, both of whom have not supported
the theory of confession and have turned
hostile. The only witness of extra judicial
confession, therefore, is the informant
himself.

22. The sheet anchor of the
prosecution case to implicate the accused
appellant is the extra judicial confession
made by him on 25th of November, 2010
as well as the testimony of P.W.-3, who is
the child witness and is the son of the
deceased. At the time of the incident, P.W.-
3 was around three years old. These two
material evidences have been relied upon
by the court of Session to hold the accused
appellant guilty of offence under Section
302 I.P.C.

23. At this juncture, a serious
question arises as to why the accused
appellant
was
not
apprehended
on
06.10.2010 itself, if the only eye witness of
the incident i.e. P.W.-3 had seen the
accused appellant throttling the deceased
and informed his father (informant) and the
Police. Admittedly, there is no other eye
witness account of the incident. We have
perused
the
original
records
of
investigation, from the perusal of which it
does appear that the statement of P.W.-3
was recorded under Section 161 Cr.P.C. on
06.10.2010 itself and he had clearly
disclosed the I.O. about the accused
appellant having throttled his mother.

24. It is a matter of surprise that
notwithstanding such information given by
P.W.-3 to the I.O. and the informant no
8 All. Kishan Pratap Singh Vs. State of U.P.
891
steps in the course of investigation was
taken against him. The accused appellant
was neither arrested nor the prosecution
investigated the role of the accused
appellant in the crime. There is absolutely
no explanation put-forth by the prosecution
for not proceeding on the basis of
disclosure made by P.W.-3. The serious
lapse in not implicating/apprehending the
accused appellant from 06.10.2010 onwards, till the introduction of the version of
alleged extra judicial confession made by
the accused appellant on 25.11.2010
remains wholly unexplained. This lapse
creates a serious dent in the prosecution
case. Even during the course of arguments
in this appeal learned A.G.A. has not been
able to furnish any credible justification for
not acting on the information of P.W.-3.

25. Only two inferences are
available in the above situation. Either the
disclosure made by P.W.-3 did not exist or
the investigation was misdirected and there
was a serious lapse on part of the
Investigating Officer in the matter.

26. We shall take up the evidence
of P.W.-3, first. In order to appreciate the
testimony of P.W.-3, we have perused the
original records relating to investigation of
the case. The case diary has been perused
by the Court. The first Parcha issued by the
I.O. on 06.10.2010 mentions the recording
of the statement of informant which is
consistent with the information given by
the informant to the Police and the
consequential line of investigation.

27. Surprisingly, on the same day
i.e. 06.10.2010 another parcha was issued by
the Investigating Officer numbered as 1-A,
before Parcha No.2. In the Parcha No.1-A,
statement of P.W.-3 was recorded as per
which it was the accused appellant who had
throttled the deceased in the presence of
P.W.-3. P.W.-3 in his testimony before the
court has also stated that the accused
appellant had throttled the deceased in his
presence.

28. The fact that no action was taken
by the I.O. on the information given by the
P.W.-3 and that this line was not pursued
during investigation casts a serious doubt
upon the prosecution case. The possibility of
this version having been planted, later, cannot
be ruled out as it would be inconceivable that
no action would be taken by the I.O. on such
important information.

29. So far as the extra judicial
confession is concerned, the two witnesses to
it are P.W.-4 and P.W.-6, both of whom have
turned hostile and have not supported the
making of extra judicial confession. The
informant in the present case is the only
witness of extra judicial confession made by
the accused. We are therefore required to test
the evidentiary value of extra judicial
confession allegedly made by the accused
appellant to the first informant.

30. The evidence on record makes it
clear that the informant remarried within a
month of the ghastly murder of his wife. The
defence witness D.W.-1 is the real brother of
the informant as well as the accused
appellant, who has stated that informant had
an affair with the lady with whom he later
solemnized his second marriage. D.W.-1 has
also stated that there were often fight/quarrel
between the deceased and the informant on
account of the affair between the informant
and the lady with whom the informant
remarried soon after the death of his wife.

31. P.W.-3 as well as informant
both
have
admitted
the
factum
of
remarriage of informant with Smt. Sangita.
892 INDIAN LAW REPORTS ALLAHABAD SERIES
In our considered opinion, remarriage of
the informant within a month of the murder
of his wife is not entirely natural.
Remarriage is not expected in ordinary
course of things within a month of the
murder of the first wife. In the light of the
defence evidence that informant had an
affair
during
subsistence
of
earlier
marriage, on account of which quarrel took
place between the couple, it would not be
safe to rely upon the informant alone to
convict the accused.

32. When we test the veracity of
the statement of the informant bearing in
mind the surrounding circumstances, which
reflects adversely on the reliability of the
informant, we do not find his testimony to
be above doubt.

33. Extra judicial confession by its
very nature is otherwise a weak piece of
evidence.
Unless
the
attending
circumstances are such that the extra
judicial confession is found convincing, not
much weight can be accorded to it. In view
of the fact that the two other witnesses to
the extra judicial confession have not
supported the prosecution case, and we
otherwise suspect the credibility of the
disclosure made by P.W.-1, it would be
impermissible for us to accept the extra
judicial confession as a credible piece of
evidence in support of the prosecution case.

34. Law regarding extra judicial
confession has been settled by Hon'ble
Supreme Court in Kalinga @ Kushal Vs.
State of Karnataka by Police Inspector
Hubli 2024 INSC 124. Relevant paras of
the report are reproduced hereinafter:-

 "14.
The
conviction
of
the
appellant is largely based on the extra
judicial confession allegedly made by him
before PW-1. So far as an extra judicial
confession is concerned, it is considered as
a weak type of evidence and is generally
used as a corroborative link to lend
credibility to the other evidence on record.
In Chandrapal v. State of Chattisgarh, this
Court reiterated the evidentiary value of an
extra judicial confession in the following
words:

 "11. At this juncture, it may be
noted that as per Section 30 of the
Evidence Act, when more persons than one
are being tried jointly for the same offence,
and a confession made by one of such
persons affecting himself and some other of
such persons is proved, the court may take
into consideration such confession as
against such other person as well as
against the person who makes such
confession.
However,
this
court
has
consistently held that an extra judicial
confession is a weak kind of evidence and
unless it inspires confidence or is fully
corroborated by some other evidence of
clinching nature, ordinarily conviction for
the offence of murder should not be made
only on the evidence of extra judicial
confession. As held in case of State of M.P.
Through CBI v. Paltan Mallah, the extra
judicial confession made by the co-accused
could be admitted in evidence only as a
corroborative piece of evidence. In absence
of any substantive evidence against the
accused, the extra judicial confession
allegedly made by the co-accused loses its
significance and there cannot be any
conviction based on such extra judicial
confession of the co-accused."

 15. It is no more res integra that
an extra judicial confession must be
accepted with great care and caution. If it
is not supported by other evidence on
record, it fails to inspire confidence and in
8 All. Kishan Pratap Singh Vs. State of U.P.
893
such a case, it shall not be treated as a
strong piece of evidence for the purpose of
arriving at the conclusion of guilt.
Furthermore, the extent of acceptability
of an extra judicial confession depends
on the trustworthiness of the witness
before whom it is given and the
circumstances in which it was given. The
prosecution
must
establish
that
a
confession was indeed made by the
accused, that it was voluntary in nature
and that the contents of the confession
were true. The standard required for
proving an extra judicial confession to
the satisfaction of the Court is on the
higher
side
and
these
essential
ingredients must be established beyond
any reasonable doubt. The standard
becomes even higher when the entire
case of the prosecution necessarily rests
on the extra judicial confession."

35. Apart from the evidence in
the nature of extra judicial confession
and the testimony of P.W.-3, there is no
other evidence to implicate the accused
appellant in the present case. Argument
of learned A.G.A. that the statement of
P.W.-3 tallies with the injuries found on
the deceased is absolutely fallacious,
inasmuch as we have found that the
possibility of the version of P.W.-3
having been introduced subsequently
cannot be disbelieved. In that situation,
it is but natural that version of P.W.-3
would be consistent with the medical
evidence on record. Since we find that
there is absolutely no explanation putforth by the prosecution justifying the
non-implication of accused appellant on
the strength of the testimony of P.W.-3,
till 25th of November, 2010, when the
extra judicial confession surfaced, we
disbelieve the testimony of P.W.-3.

36. P.W.-3 is a child witness and
it would be prudent and desirable to look
for other evidence, for the purposes of
corroboration, which is found lacking.
Testimony
of
a
child
witness
is
otherwise required to be examined with
due care and cannot be taken on its face
value.

37. In such circumstance no
other evidence exists on record to
implicate the accused appellant.

38. In view of the discussions
and deliberations held above, we cannot
endorse the finding of conviction and
consequential sentence of the accused
appellant by the court below, inasmuch
as evidence of extra judicial confession
as well as testimony of P.W.-3 have not
been subjected to careful scrutiny by the
court of Session. The finding that
prosecution has succeeded in proving the
guilt of accused appellant, beyond
reasonable
doubt,
is
consequently
reversed.

39.

For
the
reasons
and
discussions held above, this appeal
succeeds and is allowed in part. The
judgment and order dated 17.04.2019,
passed by the Sessions Judge, Kannauj
in Sessions Trial No.20 of 2011 (State of
U.P. Vs. Kishan Pratap Singh), arising
out of Case Crime No. 449 of 2010,
under Section 302 IPC, Police StationTirva, District-Kannauj is set-aside.

40.

The
accused-appellantKishan Pratap Singh, who is reported to
be in jail, shall be released, forthwith,
unless he is wanted in any other case,
subject to compliance of Section 437-A
Cr.P.C.
----------
894 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 8 ILRA 894
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.08.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Writ Petition No. 5205 of 2024

Siraj Ahmad Khan & Anr. ...Petitioners
Versus
The Addl. Chief Secy & Ors. ...Respondents

Counsel for the Petitioners:
Jyotiresh Pandey, Ashish Kumar Jain

Counsel for the Respondents:
G.A.

Criminal Law - U.P. Gangster and Anti
Social Activities (Prevention) Act, 1986FIR was lodged - immovable and moveable
properties
of
petitioners
attachedCommissioner of Police had followed due
process - Petitioners failed to prove the
legitimate
source
of
income
for
the
properties under Rule 37(4) of the Act-have
right and statutory remedy under the Actwrit cannot be entertained surpassing the
statutory remedy.

W.P dismissed. (E-9)

List of Cases cited:

1. Krishna Murari Agrawal @ Deepak Vs District
Magistrate, Jhansi & ors.

2.
Raj
Kumar
Shivhare
Vs
Director
of
Enforcement

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. Heard learned counsel for the
petitioners,
learned
A.G.A.
for
the
State/respondents and perused the record.
2. Having considered the facts,
circumstances and submissions of learned
counsel for the petitioners and learned
A.G.A., we do not considered necessary it
to call for the counter affidavit from the
respondents.

3. By means of this writ petition,
the petitioners have sought following main
reliefs :-

"(i) to issue a writ, order or
direction in the nature of Certiorari, for
quashing the order dated 10.06.2024 passed
by Respondent No.2, annexed with the
petition as annexure No.1 & 2,

(ii) to issue a writ, order or
direction in the nature of Mandamus,
commanding the Respondent No.2 & 3, to
release the seized properties attached by
him,

(iii) to issue a writ, order or
direction in the nature of Mandamus, to the
Respondent No.2 & 3, to permit the
Representative of the Petitioners, for taking
the Mango Crop at the seized Agricultural
Farm of the Petitioners,

(iv) to issue a writ, order or
direction in the nature of Mandamus, to the
Respondent No.2 & 3, for ensuring the
videography of the Mango Orchard and
Residential House at the time of the
release."

4. The facts of the case, in short,
are that informant Fareed Ahmad Khan
lodged an F.I.R. with the contention that on
02.02.2024 at 15.30 hours, accused Siraj
Ahmad @ Lallan Khan reached at the place
of
occurrence
with
his
persons
by
Mahendra
Thar
vehicle
and
started
threatening
and
abusing
his
family
members. Accused Siraj Ahmad @ Lallan
Khan who is an old history-sheeter was
carrying a loaded rifle in his hands. Having