# Kunwar Pal v. State

- **Citation:** (2021) 11 ILRA 111
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-10
- **Case number:** Jail Appeal No. 7744 of 2009
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kunwar-pal-v-state-46516
- **Pages:** 5

## Headnote

A. Criminal Law -Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections
302,
376/511-challenge
toconviction-accused took the deceased six year
old girl from her house and she was found dead
in the room of accused house-at that time
there was no one in the house of accusedHence, burden lies on the shoulder of accused
to prove as to how the death of deceased took
place because this fact was within the special
knowledge of the accused but accused failed to
do so-minor contradictions about the timing
when he had come and dead body was found
will not dislodge the prosecution case-Moreso,
young girl died due to asphyxia as per postmortem report, the appellant cannot be given
any benefit of doubt.(Para 1 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

11 All. Kunwar Pal Vs. State
111

23. The lower court after perusing the
application under Section 156 (3) Cr.P.C. was
aware of the fact that commission of cognizable
offence is reported in the application under
Section 156 (3) Cr.P.C. and in the report of
police station also it was mentioned that some
incident took place on the date and time
mentioned in the application under Section 156
(3) Cr.P.C. Though, in the report it is mentioned
that the applicant-appellant was hurling abuses
and after hearing the noise the opposite party
nos. 2 and 3 came out of their houses pursuaded
the applicant and sent him to his home but after
some time the applicant-appellant again came to
the shop and again started hurling abuses. Both
the opposite party nos. 2 and 3 holding his hands
then brought the applicant-appellant to his home.
The report also discloses that to pressurize
Sandip Dixit and Prem Babu Pachori this false
application has been given.

24. Thus, from the report itself it is clear
that on 07.09.2019 at 9.00 p.m. some incident
took place and what was that incident it was not
to be inquired by the police at the stage of precognizance as the application under Section 156
(3) Cr.P.C itself discloses the commission of
cognizable offence. Thus, on the basis of
judgement in Lalita Kumari (supra) it was
incumbent upon the Magistrate concerned to
order the registration of first information report
as
the
application
itself
disclosed
the
commission of cognizable offence and in that
situation
no
preliminary
inquiry
was
permissible.

25. In view of above, I am of the view that
the lower court has misinterpreted the provisions
and has wrongly relied upon the report of police
station concerned, hence the appeal is allowed.
The impugned order dated 14.10.2019 is hereby
set aside.

26. The file be sent to lower court where
the parties shall appear on 04th January, 2022.
----------
(2021)12ILR A111
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 7744 of 2009

Kunwar Pal ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Ms. Kanchan Chaudhary

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

A. Criminal Law -Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections
302,
376/511-challenge
toconviction-accused took the deceased six year
old girl from her house and she was found dead
in the room of accused house-at that time
there was no one in the house of accusedHence, burden lies on the shoulder of accused
to prove as to how the death of deceased took
place because this fact was within the special
knowledge of the accused but accused failed to
do so-minor contradictions about the timing
when he had come and dead body was found
will not dislodge the prosecution case-Moreso,
young girl died due to asphyxia as per postmortem report, the appellant cannot be given
any benefit of doubt.(Para 1 to 17)

The appeal is dismissed. (E-6)

List of Cases cited:

1. U.O.I. Vs Dharam Pal (2019) 0 AIJEL SC 64322

2. Vikas Yadav Vs St. of U.P. (2016) 9 541

3. Maru Ram Vs U.O.I. (1980) AIR SC 2147
112 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.)

1. This appeal has been preferred by the
appellant-Kunwar Pal against the judgment and
order dated 04.11.2009, passed by Additional
Sessions Judge, Court No. 13 Bareilly, in
Session Trial No. 946 of 2007 (State vs. Kunwar
Pal) arising out of Case Crime No. 26 of 2007,
under Sections 302, 376, read with section 511
Indian Penal Code (I.P.C.), Police Station
Awala, District Bareilly, whereby the accused
was convicted and awarded sentence under
Section 302 IPC for life imprisonment and fine
of Rs.15,000/- in default accused was directed to
undergo further imprisonment for one year.
Accused was acquitted of charges under sections
376 read with section 511 of IPC.

2. The facts giving rise to this appeal are that
complainant Omkar Jatav submitted written-report
at Police Station Awala, District Bareilly, stating
therein that on 18.01.2008 at 11:30 in the morning
when
six
years
old
child-girl
who
had
accompanied with appellant was found dead in his
house. The prosecution was moved into motion by
father of the deceased alleging that she had been
raped and then murdered. The Investigating
Officer conducted the investigation and being
satisfied that case was made out, submitted chargesheet against the accused-appellant, under Sections
302, 376, read with section 511 IPC.

3. As accused was facing charges under
Sections 302, 376, read with section 511 IPC,
the case was committed to the court of Sessions.
Learned trial court has framed charges on
29.03.2008 against appellant under Sections
302, 376, read with section 511 IPC. Charges
were read over to the accused, who denied the
charges and claimed to be tried.

4. To bring home the charges, following
witnesses were examined by the prosecution:

1.
Omkar
PW1
2.
Lilawati
PW2
3.
Babu Singh
PW3
4.
Badami
PW4
5.
Dr. A. K. Gautam
PW5
6.
V.K. Kasana
PW6
7.
Gajendra Pal Singh
PW7
8.
Ram Sharan Verma
PW8

All of them have given statements
under section 161 Cr.P.C. and have opined
against the accused.

5. The ocular version was sought to be
corroborated by production of documentary
evidences:

1.
F.I.R.
Ex. Ka2
2.
Written Report
Ex. Ka1
3.
P.M. Report
Ex. Ka4
4.
Panchayatnama
Ex. Ka7
5.
Charge Sheet Mool
Ex. Ka6
6.
Site Plan with Index
Ex. Ka5

6. Accused-appellant was examined under
Section 313 Cr.P.C. and evidence against him
led by prosecution against him were put to him.
Accused stated that false evidence has been led
against him. Accused did not examine any
witness in his defence.

7.

We
have
heard
Ms.
Kanchan
Chaudhary, who has been appointed by High
Court Legal Services Committee, as Amicus
Curiae and learned AGA for the State and
perused the record.

8. Learned counsel for the appellant has
vehemently submitted that there is contradiction
in the ocular version of Omkar and Lilawati i.e.
father and mother of the deceased and also about
the timing as mentioned in the postmortem
11 All. Kunwar Pal Vs. State
113
report as Ex. 4. She has further submitted that
accused is totally innocent and could not have
been convicted on fragile evidence of eyewitnesses which is full of contradiction. It has
been further submitted that dead body might
have been planted by somebody else and the
accused is roped in.

9. Per contra, learned AGA has taken us
through the evidence on record and has
contended that this is not a case where the
accused can be given any benefit of doubt as it
was his own house where the dead body was
found. The father of the victim categorically in
ocular version supported the F.I.R. stating that
his daughter had accompanied the accused and
she did not return back at home, they went to the
house of the accused who did not open the door
and when the door was opened he ran away from
the scene of offence.

10. At the outset only the offence for
which the accused has been convicted under
section 302 IPC we would now sift the evidence
on record.

(a) The dead body was found in the
house of accused, the testimony of father
corroborates the F.I.R. that deceased had
accompanied with accused, there is no rebuttal
evidence produced and, therefore, we have to
call section 106 of the Indian Evidence Act for
which learned trial Judge has given cogent
reasons that accused Kunwar Pal took the
victim/deceased from her house and she was
found dead in the room of accused's house. At
that time there was no one in the house of
accused. Hence, burden lies on the shoulder of
accused to prove as to how the death of deceased
took place because this fact was within the
special knowledge of the accused but accused
had not discharged this burden.

11. The fact that the dead body was found
at the residence/place of accused at 1:00 p.m.
and
just
because
there
is
some
minor
contradictions about the timing when he had
come at 11:30 and dead body 10/11:00 and will
not dislodge the prosecution case. Estimated
time is given by the doctor and it is not the exact
time. The ligature mark in postmortem report
categorically goes to show that young girl died
on account of asphexia caused due to
strangulation. We have convinced that this is not
a case where accused can be given any benefit of
doubt.

12. The recent judgment of Apex Court has
held in the case of Union of India Vs. Dharam
Pal, AIJEL 2019 (0) SC 64322 where the
accused was charged in murder of five persons
there was imposition of death sentence mercy
petition was filed and there was incarceration for
a total period of over 25 years, out of which 18
years were in solitary confinement, the Apex
Court commuted his death sentence into life
imprisonment. We are supported in arguing by
the decision of Vikas Yadav Vs. State of U.P.
2016 (9) 541 will also for benefit of accused. It
is not a heinous crime and however when he has
committed the offence he was a young person.

13. Looking to the over all fact and
circumstances, we also rely the judgment of
Maru Ram Vs. Union of India, AIR 1980 SC
2147. This case has not yet been considered,
though it is not a right of the accused but it is
obligation on the State to consider the case for
commutation. The recent judgment in Criminal
Appeal No. 345 of 1983 decided on 29.08.2017
paragraph 33 of this Court has held as fallows:

"33. Going through the testimony and
the record, it cannot be said that the commission
of offence was so gruesome and life sentence
would mean till the last blood. Accused shall be
entitled to all the remissions. This direction is
given in view of principles enunciated in Maru
Ram Vs. Union of India, AIR 1980 SC 2147,
considered again in Vikas Yadav Vs. State of
114 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P. 2016 (9) 541 and the constitutional power
vested in Article 72 and Article 161 of the
Constitution of India read with Section 432 and
433-A of Cr.P.C. will also permit this Court to
hold that it will be available to the State to
exercise its jurisdiction vested under Section 432
Cr.P.C. and we do not, for a moment, hold that
this is a case where life would mean till his last
breath and, therefore, also the case of both the
accused be considered for remission as
expeditiously as possible not later than six
months from today. It goes without saying that
the State shall exercise the powers after 14 years
incarceration is over."

14. Thus in the light of these facts, the High
Court as per reformative theory will permit us to
grant fix term jail sentence to the accused.

15. At the end, we agree with the submission
of learned counsel for the appellant that at end of
14 years the State may consider his case for
remission under section 433 and 434 and this is not
a heinous crime and he is in jail since 2007 and
more than 14 years are already completed.

45. We find that in the State of U.P. even
after 14 years of incarceration does not even send
the matter to the Magistrate for reevaluation the
cases for remission as per mandate of Sections 432
and 433 of Cr.P.C. and as held by Apex Court in
catena of decisions even if appeals are pending in
the High Court. The accused in present case is in
 jail since 2000.

46. Sections 433 and 434 of the Cr.P.C.
read as follows:-

"Section 433. Power to commute
sentence. The appropriate Government may,
without the consent of the person sentenced,
commute-

(a) a sentence of death, for any other
punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life,
for imprisonment for a term not exceeding fourteen
years or for fine;

(c) a sentence of rigorous imprisonment,
for simple imprisonment for any term to which that
person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment,
for fine."

"Section 434. Concurrent power of
Central Government in case of death sentences.
The powers conferred by sections 432 and 433
upon the State Government may, in the case of
sentences of death, also be exercised by the
Central Government."

47. Section 433 and 434 of the Cr.P.C.
enjoins a duty upon the State Government as well
as Central Government to commute the sentences
as mentioned in the said section. We are pained to
mention that even after 14 years of incarceration,
the State did not think of exercising its power for
commutation of sentence of life imprisonment of
the present accused and it appears that power of
Governor provided under Article 161 of the
Constitution of India are also not exercised though
there are restriction to such power to commute
sentence. The object of Sections 432 read with
Section 433 of the Cr.P.C. is to remit the sentence
awarded to the accused if it appears that the
offence committed by him is not so grave. In our
case, we do not see that why the accused is not
entitled to remission. His case should have been
considered
but
has
not
been
considered.
Remission/ commutation of sentence under
Sections 433 and 434 of the Cr.P.C. is in the realm
of power vested in the Government. The factual
scenario in the present case would show that had
the Government thought of taking up the case of
the accused as per jail manual, it would have been
found that the case of the appellant was not so
grave that it could not have been considered for
remission / commutation.

16. The State may consider for his
remission, hence as a theory of reformation
would apply to this case as it may be that he was
young boy and due to bad luck and fear he may
have committed this offence. He has no criminal
antecedents attributed to him.
11 All. Kunwar Pal Vs. State
115

17. The appeal sans merit and is dismissed.
However, with the aforesaid observations to the
State.

18. Record for proceedings be consigned to
the trial court.

19. The High Court Legal Services
Committee will pay the requisite fees to the
learned counsel who is amenably assisted this
Court.
----------
(2021)12ILR A115
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2021

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Criminal Revision No. 31 of 2021

Vishal Kannaujiya(Juvenile) ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajnish Shukla

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

(A) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - Section
102 - Revision - Section 12 - bail to a person
who is apparently a child alleged to be in
conflict with law - reasons - circumstances -
Indian Penal Code, 1860 - Sections 82,83,84 &
376 , The Code of criminal procedure, 1973 -
Sections 29(B),161,399 & 562 - The Prevention
of Child from Sexual Offence Act, 2012 -
Section 5/6 .

(B) Criminal Law - The Juvenile Justice (Care
and Protection of Children) Act, 2015 - proviso
to Section 12(1) - a juvenile shall not be
released, if there appears to be reasonable
ground for believing that the release is likely to
bring that child in association with any known
criminal or expose the said person to mental,
physical or psychological danger or the release
would defeat the ends of justice, and thus, the
Board shall record (reasons) "for denying the
bail", and "circumstances that led to such a
decision. (Para -35)

Juvenile along with minor - wandering in suspicious
condition - intercepted - victim as well as juvenile
apprised the police personnel - not willing to go to
their respective houses - wanted to live together -
FIR lodged by complainant - allegation - UPT report
of victim found positive - pregnant - Statement under
Section 161 & 164 CrPC - love with revisionist for past
three months - willing to marry revisionist - orders
passed by both courts below - without application of
mind - orders rejecting the bail / release application
of revisionist - hence revision . (Para - 40)

HELD:-Observation made by District Probation
Officer is too far to be a ground to reject the bail/
release application. Report submitted by the
District Probation Officer is to be considered in the
light of the Statutory Provision under Section 12 of
the Juvenile justice Act, 2015 . Nothing on record
to show that there is any criminal antecedents
either of the juvenile or his family . There is
nothing adverse, but presumptions have been
drawn that in case, he is released, then the same
would defeat the ends of justice. Impugned
judgment and order passed by the courts below
refusing the bail to the revisionist are hereby set
aside and reversed.(Para - 60,63)

Criminal Revision allowed. (E-7)

List of Cases cited:-

1. Om Prakash Vs St. of Raj. , 2012(5) SCC201

2. Sanjay Chaurasiya Vs St. of U.P, 2006 CrLJ 2957

3. Prakash Vs St. of Raj., 2006 CrLJ 1373

4. Shiv Kumar @ Sadhu Vs St. of U.P, 2010 (1) ACC
616

5. Rahul Patel Vs St. of U.P. , 2018 (1)JIC357

6. Mangesh Rajbhar Vs St. of U.P., 2018(6) ADJ

7. Sumit Kumar Vs St. of U.P. , Criminal Revision No.
915 of 2017