# Manoj Kumar Verma v. State of U.P

- **Citation:** Criminal Appeal No. 1689 of 2007
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-12
- **Case number:** Criminal Appeal No. 1689 of 2007
- **Bench:** Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-verma-v-state-of-u-p-46435
- **Pages:** 8

## Headnote

Criminal Law-N.D.P.S. Act - Section 8/21 -
Recovery of 320 gram Morphine and
arrest of accused-appellant not supported
by
any
public
witness-
No
legal
proposition
that
evidence
of
police
officers, unless supported by independent
witnesses, is unworthy of acceptance- If
the evidence of police officer is found
acceptable, it would be an erroneous
proposition
that
court
must
reject
prosecution version solely on the ground
that
no
independent
witness
was
examined- Discrepancies, variations and
contradictions in prosecution case- If the
same do not go to the root of case then
accused-appellant is not entitled to get
benefit of the same - Police informed the
accused-appellant that he has legal right
to be searched before gazetted officer but
he did not require so and on the consent
given
by
accused-appellant,
police
searched accused-appellant, recovery of
contraband was made and police prepared
recovery memo thereof - Cannot be said
that mandatory provision of N.D.P.S. Act
has not been complied with by police. The
measure
of
punishment
should
be
proportionate
to
gravity
of
offence-
Punishment awarded to accused-appellant
by Trial Court is not excessive and is fit
and proper.

A. Evidence law-Indian Evidence Act
1872- Section 3, Section 118- Only Police
Officers as witnesses- No legal proposition
that evidence of police officers, unless
supported by independent witnesses, is
unworthy of acceptance.

Where the evidence of police officers is found to
be credible then the Court can rely upon the
same even though no independent witnesses
have been examined.

B. Indian Evidence Act,1872- Section 155-
If
the
discrepancies,
variations
and
contradictions in the prosecution case do not go
to the root of the case, then the accused is not
entitled to get benefit of the same.

C. Criminal Law-NDPS Act- Section 50-
Search by police officers- Police informed
the accused-appellant that he has legal
right to be searched before gazetted
officer but he did not require so and on
the consent given by accused-appellant,
police searched accused-appellant- No
illegality.

Where the accused refused to get himself
searched
before
a
gazetted
officer
and
534 INDIAN LAW REPORTS ALLAHABAD SERIES
consented to be searched by the police officers,
then it cannot be said that the requirements of
Section 50 of the NDPS Act have not been
complied with. (Para 16, 17, 23, 28, 32)

Criminal Appeal dismissed.(E-3)

List of case cited:-

## Text

3-5 All. Manoj Kumar Verma Vs. State of U.P.
533
evidence. As such, we do not find any
perversity or illegality in the impugned
judgment. The conviction and sentence
awarded by the learned trial court is
upheld. The appeal is, therefore, liable to be
dismissed.

52.

The
Criminal Appeals
is
accordingly dismissed.

53. The accused-appellant Mahey
Alam is directed to surrender before the
learned trial court forthwith from where he
shall be sent to jail to undergo the sentence.

54. Office is directed to send a copy
of this order to the court below for
communication and compliance along with
lower court record.
----------
(2020)03-05ILR A533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.02.2020

BEFORE
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 1689 of 2007

Manoj Kumar Verma ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
In Person, Santosh Kumar Srivastava

Counsel for the Respondent:
G.A.

Criminal Law-N.D.P.S. Act - Section 8/21 -
Recovery of 320 gram Morphine and
arrest of accused-appellant not supported
by
any
public
witness-
No
legal
proposition
that
evidence
of
police
officers, unless supported by independent
witnesses, is unworthy of acceptance- If
the evidence of police officer is found
acceptable, it would be an erroneous
proposition
that
court
must
reject
prosecution version solely on the ground
that
no
independent
witness
was
examined- Discrepancies, variations and
contradictions in prosecution case- If the
same do not go to the root of case then
accused-appellant is not entitled to get
benefit of the same - Police informed the
accused-appellant that he has legal right
to be searched before gazetted officer but
he did not require so and on the consent
given
by
accused-appellant,
police
searched accused-appellant, recovery of
contraband was made and police prepared
recovery memo thereof - Cannot be said
that mandatory provision of N.D.P.S. Act
has not been complied with by police. The
measure
of
punishment
should
be
proportionate
to
gravity
of
offence-
Punishment awarded to accused-appellant
by Trial Court is not excessive and is fit
and proper.

A. Evidence law-Indian Evidence Act
1872- Section 3, Section 118- Only Police
Officers as witnesses- No legal proposition
that evidence of police officers, unless
supported by independent witnesses, is
unworthy of acceptance.

Where the evidence of police officers is found to
be credible then the Court can rely upon the
same even though no independent witnesses
have been examined.

B. Indian Evidence Act,1872- Section 155-
If
the
discrepancies,
variations
and
contradictions in the prosecution case do not go
to the root of the case, then the accused is not
entitled to get benefit of the same.

C. Criminal Law-NDPS Act- Section 50-
Search by police officers- Police informed
the accused-appellant that he has legal
right to be searched before gazetted
officer but he did not require so and on
the consent given by accused-appellant,
police searched accused-appellant- No
illegality.

Where the accused refused to get himself
searched
before
a
gazetted
officer
and
534 INDIAN LAW REPORTS ALLAHABAD SERIES
consented to be searched by the police officers,
then it cannot be said that the requirements of
Section 50 of the NDPS Act have not been
complied with. (Para 16, 17, 23, 28, 32)

Criminal Appeal dismissed.(E-3)

List of case cited:-

1. Pradeep Narayan Madqaonkar & ors Vs. St. of
Maha. 1995 (4) SCC 255

2. Balbir Singh Vs. State 1996 (11) SCC 139

3. Paras Ram Vs. St. of Har. 1992 (4) SCC 662

4. Sama Alana Abdulla Vs. St. of Guj. 1996 (1)
SCC 427

5. Anil @ Andya Sadashiv Nandoskar Vs. St. of
Maha. 1996 (2) SCC 589.

6. Subhash Singh Thakurshyam Vs. St. (Thru
CBI) (1997) 8 SCC 732

7. State of U.P. Vs. Zakaullah 1998 Cri. L.J. 863

8. Girja Prasad Vs. St. of M.P. (2007) 7 SCC 625

9. Sampath Kumar Vs. Inspr. of Police,
Krishnagiri, (2012) 4 SCC 124

10. Sumer Singh Vs. Surajbhan Singh & ors,
(2014) 7 SCC 323

11. Sham Sunder Vs. Puran, (1990) 4 SCC 731

12. M.P. Vs. Saleem, (2005) 5 SCC 554,

13. Ravji Vs. St. of Rajasthan, (1996) 2 SCC
175.

(Delivered by Hon'ble Rajendra Kumar-IV,
J.)

1. This criminal appeal has been
directed against the judgement and order
dated 19.4.2007 passed by Additional
Sessions Judge (F.T.C.) No. 28, Barabanki
in S.T. No. 98 of 2003 (Case No. 8 of
2003), State vs. Manoj Kumar Verma,
under Section 8/21 N.B.P.S. Act, whereby
trial court convicted the accused-appellant
under
Section
8/21
N.D.P.S.
Act,
sentencing him to undergo 10 years
rigorous imprisonment with fine of Rs.
1,00,000/- and in default of payment of
fine, he shall further undergo one year
additional rigorous imprisonment.

2. Brief facts of the prosecution case
which need to be noted for disposal of the
present appeal which are as under :-

(i) On 9.1.2003, S.I. Narendra
Pratap
Singh,
In-Charge
out
post
Ganeshpur along with Constable Ram
Asrey Saroj, Constable Amar Chandra
Shukla, Constable Ajeet Kumar Pandey and
Constable Jagat Narayan Singh were going
to Ram Nagar in search of wanted accused.
As police party reached near Mahadeva
Gate, accused appellant has seen police
party coming from Mahadeva side, he
turned behind and tried to run away. On
being suspected as miscreant, he was
apprehended at the distance of 60-70 steps
by police at around 9:30 PM. On being
asked his whereabouts, he disclosed his
identity as Manoj Kumar Verma son of
Ram Bilas Verma, resident of Bansa, Police
Station Masauli, District Barabanki and
told that he has Morphine in his pocket and
on account of this he ran away. Police
informed the accused-appellant that he has
a right to be searched before any gazetted
officer whereupon he answered that he does
not want to go anywhere and he took out a
polythene from his right pocket of pant and
handed over to police disclosing that it is
Morphine. Recovered Morphine was taken
into custody and it was 320 gram, which
was
properly
sealed
by
police
and
mandatory provision of N.D.P.S. was
complied with. Recovery memo Ex.Ka-3
was prepared by police party on spot.
3-5 All. Manoj Kumar Verma Vs. State of U.P.
535

3. On the basis of recovery memo
Ex.Ka-3,
Chick
F.I.R.
Ex.Ka-2
was
registered in the police station concerned
against the accused and entry was made in
general diary, copy whereof is on file.

4. PW-4, S.I. Suresh Chandra Sen
undertook the investigation of case, visited
stop, prepared site plan Ex.Ka-6 and
completing
entire
formalities
of
investigation,
submitted
charge
sheet
against the accused-appellant under Section
8/21 N.D.P.S. Act before the Court.

5. Trial Court, considering the
evidence collected by Investigating Officer,
framed charges against accused-appellant
on 17.12.2008 under Section 8/21 N.D.P.S.
Act to which accused-appellant denied,
pleaded not guilty and claimed trial.

6. In order to substantiate its case,
prosecution examined as many as five
witnesses out of whom PW-2- Constable
Amar Chandra Shukla, PW-3 S.I. Narendra
Pratap are the witnesses of fact and rest
PW-1 Constable Omkar Nath, PW-4 S.I.
Suresh Chandra Sen and PW-5 Pawan
Kumar Singh are the formal witnesses.

7.

Subsequent
to
closure
of
prosecution evidence, Trial Court recorded
statement
of
accused-appellant
under
Section
313
Cr.P.C.
explaining
all
incriminating and other evidence and
circumstances. In the statement under
Section
313
Cr.P.C.,
accused
denied
prosecution story in toto and subsequently
stated that he was arrested by police from
his shop at about 9:00 PM and booked
behind the Bar. Nothing has been recovered
from his possession.

8. Trial court after appriciating the
evidence of prosecution and hearing of
both the parties, convicted and sentenced
the accused-appellant as stated above.

9. I have heard Sri Santosh Kumar
Srivastava, learned Amicus Curiae for the
appellant and Smt. Parul Kant, learned
AGA for the State at length and have gone
through the record available on file with the
valuable assistance of learned counsel for
the parties.

10. Learned Amicus Curiae for
appellant
submits
that
the
accusedappellant is innocent and has been falsely
implicated in the present case by police.
Nothing has been recovered from his
possession. There is no public witness at
the time of arrest of appellant. Mandatory
provision of N.D.P.S. has not been
complied with by the police and search was
not made before any gazetted officer. There
are several contradiction in the statement of
witness produced by prosecution. Trial
Court did not appreciate the entire evidence
in right perspective.

11. On the other hand, learned AGA
for the State submits that from the
possession of accused-appellant, 320 gram
Morphine has been recovered for which he
has no valid lincense. He has been arrested
by police on spot with contraband materials
in so huge quantity. The said contraband
material cannot be easily planted by police.
It has been further submitted that recovery
happens to be made at 9:30 PM, so it was
not possible to police to take public
witness.
Since
the
accused-appellant
himself denied to be searched before any
gazetted officer, therefore, police did not
take him before any gazetted officer but
recovery was made by police in compliance
of mandatory provision of N.D.P.S. Act.
Prosecution has been fully successful in
proving its case beyond reasonable doubt
536 INDIAN LAW REPORTS ALLAHABAD SERIES
and trial court has rightly convicted and
sentenced the accused-appellant.

12. Now, I may proceed to consider
rival submissions of learned counsel for the
parties and, briefly, evidence of prosecution
and some important decisions.

13. PW-2 Constable Amar Chandra
Shukla deposed that on 9.1.2003, he was
posted as Constable in Police Station Ram
Nagar,
District
Barabanki
and
was
accompanied to S.I. Narendra Pratap Singh
and other constables. When he reached near
Mahadeva Gate, they saw a person coming
from Mahadeva Gate. Seeing the police
party, he returned behind and started
running back. On being suspected as
miscreant, police party apprehended him at
the distance of 60-70 steps at about 9:30
P.M. On being asked his name, he disclosed
his identity as Manoj Kumar Verma and
told that he has Morphine with him. S.I.
Narendra Pratap Singh informed the
accused that he has a right to be searched
before any gazetted officer and he may be
taken for search but he refused to go
anywhere and handed over to police a
polythine of Morphine taking it out from
the pocket of his pant. On the consent given
by accused, search of accused was made
and from his possession of 320 gram
Morphin was found, for which he had no
valid license. Recovery memo thereof was
prepared
in
accordance
with
law.
Mandatory provision of N.D.P.S. Act was
complied with. Police tried for public
witness but nobody was ready to be a
witness. Recovery memo Ex.Ka-3 and
consent letter of accused-appellant Ex.Ka-4
were prepared on spot which contained a
signature of accused.

14. PW-3 S.I. Narendra Pratap Singh
deposed that he along with other police
officials were going to Ram Nagar in
search of wanted accused, when they
reached near Mahadeva Gate, accusedappellant has seen the police party coming
from Mahadeva Gate, he turned behind and
tried to run back. On being suspected, he
was apprehended by police at the distance
of 60-70 steps at around 9:30 PM. On being
questioned, he disclosed his identity as
Manoj Kumar Verma, resident of Bansa,
Police Station Masauli, District Barabanki,
who told that he has some Morphine and
due to fear he was running. He (PW-3)
informed the accused that he has a right to
be searched before any gazetted officer but
accused-appellant refused to go anywhere
and he took out Morphine rapped in
polythine from his right pocket of his pant
for which he had no valid license.
Recovered Morphine was weighd and
found 320 grams. Recovered material was
sealed and recovery memo thereof was
prepared on spot. Signature of accused was
also taken on the recovery memo Ex.Ka-4.

15. PW-2 and 3 withstood sufficient
lengthy cross-examination by defence but
nothing adverse material could be brought
so as to disbelieve their statement.

16. Admittedly, recovery and arrest of
accused-appellant is not supported by any
public
witness
for
which
witnesses
explained that they tried the public to be
witness of incident but due to fear of evil,
nobdoy came forward to be witness. It is
settled that generally, no public witness
comes forward to be a witness against the
criminals.

17. As a matter of rule, there can be
no legal proposition that evidence of police
officers, unless supported by independent
witnesses, is unworthy of acceptance. Nonexamination of independent witness or
3-5 All. Manoj Kumar Verma Vs. State of U.P.
537
even presence of such witness during
police raid would cast an added duty on the
court
to
adopt
greater
care
while
scrutinising the evidence of the police
officers. If the evidence of police officer is
found acceptable, it would be an erroneous
proposition
that
court
must
reject
prosecution version solely on the ground
that no independent witness was examined.

18. In Pradeep Narayan Madqaonkar
& others vs. State of Maharashtra 1995 (4)
SCC 255, it was held:

"Indeed, the evidence of the official
(police) witnesses cannot be discarded merely
on the ground that they belong to the police
force and are, either interested in the
investigation of the prosecuting agency but
prudence dictates that their evidence needs to
be subjected to strict scrutiny and as far as
possible corroboration of their evidence in
material particulars should be sought. Their
desire to see the success of the case based on
their investigation, requires greater care to
appreciate their testimony."

19. In Balbir Singh vs. State 1996 (11)
SCC 139, the Court has repelled a similar
contention based on non-examination of
independent witnesses. The same legal position
has been reiterated time and again by Apex
Court vide Paras Ram vs. State of Haryana
1992 (4) SCC 662, Sama Alana Abdulla vs.
State of Gujarat 1996 (1) SCC 427, Anil alias
Andya Sadashiv Nandoskar vs. State of
Maharashtra 1996 (2) SCC 589.

20. In Subhash Singh Thakurshyam vs
State (Through CBI) (1997) 8 SCC 732, a
Two Judge Bench of the Apex Court
comprising of Hon'ble M. Mukherjee and
Hon'ble K. Thomas JJ, in para 90 observed:

"....We should not forget that the time
of the raid was during the odd hours when
possibly no pedestrian would have been
trekking on the road nor any shopkeeper
remaining in his shop nor a hawker moving
around on the pavements."

21. In State of U.P. v. Zakaullah 1998
Cri. L.J. 863 in para-10, it is said:

"The necessity for "independent
witness" in cases involving police raid or
police search is incorporated in the statute
not for the purpose of helping the indicted
person to bypass the evidence of those
panch witnesses who have had some
acquaintance with the police or officers
conducting the search at some time or the
other. Acquaintance with the police by itself
would not destroy a man's independent
outlook.
In
a
society
where
police
involvement is a regular phenomenon many
people would get acquainted with the
police. But as long as they are not
dependent on the police for their living or
liberty or for any other matter, it cannot be
said that those are not independent
persons. If the police in order to carry out
official duties, have sought the help of any
other person he would not forfeit his
independent character by giving help to
police action. The requirement to have
independent witness to corroborate the
evidence of the police is to be viewed from
a realistic angle. Every citizen of India
must be presumed to be an independent
person until it is proved that he was a
dependent of the police or other officials
for any purpose whatsoever."

22. Referring to some of the the
aforesaid decisions, Court in Girja Prasad
Vs. State of M.P. (2007) 7 SCC 625 held:
538 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is well-settled that credibility
of witness has to be tested on the
touchstone
of
truthfulness
and
trustworthiness. It is quite possible that in a
given case, a Court of Law may not base
conviction solely on the evidence of
Complainant or a Police Official but it is
not the law that police witnesses should not
be relied upon and their evidence cannot be
accepted unless it is corroborated in
material particulars by other independent
evidence. The presumption that every
person acts honestly applies as much in
favour of a Police Official as any other
person. No infirmity attaches to the
testimony
of
Police
Officials
merely
because they belong to Police Force. There
is no rule of law which lays down that no
conviction
can
be
recorded
on
the
testimony of Police Officials even if such
evidence
is
otherwise
reliable
and
trustworthy. The rule of prudence may
require more careful scrutiny of their
evidence. But, if the Court is convinced that
what was stated by a witness has a ring of
truth, conviction can be based on such
evidence." (para 25)

23. In so far as discrepancies,
variations and contradictions in prosecution
case are concerned, I have analysed entire
evidence in consonance with submissions
raised by learned counsel and find that the
same do not go to the root of case and
accused-appellant is not entitled to get
benefit of the same.

24. When such incident takes place,
one cannot expect a scripted version from
witnesses to show as to what actually
happened and in what manner it had
happened. Such minor details normally are
neither noticed nor remembered by people
since they are in fury of incident and
apprehensive of what may happen in future.
A witness is not expected to recreate a
scene as if it was shot after with a scripted
version but what material thing has
happened
that
is
only
noticed
or
remembered by people and that is stated in
evidence. Court has to see whether in broad
narration given by witnesses, if there is any
material contradiction so as to render
evidence so self contradictory as to make it
untrustworthy is minor variation or such
omissions which do not otherwise affect
trustworthiness of evidence, which is
broadly
consistent
in
statement
of
witnesses, is of no legal consequence and
cannot defeat prosecution.

25. In Sampath Kumar v. Inspector
of Police, Krishnagiri, (2012) 4 SCC 124,
Court has held that minor contradictions
are bound to appear in the statements of
truthful witnesses as memory sometimes
plays false and sense of observation differs
from person to person.

26. In Sachin Kumar Singhraha v.
State of Madhya Pradesh, 2019 (8) SCC
371, Supreme Court has observed that
Court will have to evaluate evidence before
it keeping in mind the rustic nature of
depositions of the villagers, who may not
depose about exact geographical locations
with mathematical precision. Discrepancies
of this nature which do not go to the root of
the matter do not obliterate otherwise
acceptable evidence. It need not be stated
that it is by now well settled that minor
variations should not be taken into
consideration while assessing the reliability
of witness testimony and the consistency of
the prosecution version as a whole.

27. We lest not forget that no
prosecution case is foolproof and the same
is bound to suffer from some lacuna or the
other. It is only when such lacunae are on
3-5 All. Manoj Kumar Verma Vs. State of U.P.
539
material aspects going to the root of the
matter, it may have bearing on the outcome
of the case, else such shortcomings are to
be ignored. (See Smt. Shamim v. State of
(NCT of Delhi), 2018 (10) SCC 509)

28. Evidently, recovery and arrest of
accused happens suddenly at about 9:30
PM and it was winter season. Police
informed the accused-appellant that he has
legal right to be searched before gazetted
officer but he did not require so and he had
given a consent to be searched by police
and on the consent given by accusedappellant, police took search of accusedappellant, recovery of contraband was
made and police prepared recovery memo
thereof. Thus, it cannot be said that
mandatory provision of N.D.P.S. Act has
not been complied with by police.

29. F.S.L. report Ex.Ka-12 reveals
that on examination of sample, it was found
Heroin and accused-appellant commented
nothing on F.S.L. report. In statement under
Section 313 Cr.P.C. he simply stated that
nothing has been recovered from his
possession. He did not choos to adduse any
defence to discedit F.S.L. report.

30. In view of facts and legal position
discussed hereinabove, I find that Trial
Court has rightly analyzed evidence led by
prosecution and found accused guilty and
convicted him for an offence punishable
under
Section
8/21
N.D.P.S.
Act.
Conviction and sentenced awarded by Trial
Court is liable to be maintained and
confirmed. No interference is warranted by
this Court. Criminal appeal lacks merit and
liable to be dismissed.

31. So far as sentencing of accusedappellant is concerned, it is always a
difficult task requiring balance of various
considerations. The question of awarding
sentence is a matter of discretion to be
exercised
on
consideration
of
circumstances aggravating and mitigating
in individual cases.

32. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. The measure of
punishment should be proportionate to
gravity of offence. Object of sentencing
should be to protect society and to deter the
criminal in achieving avowed object of law.
Further, it is expected that courts would
operate the sentencing system so as to
impose such sentence which reflects
conscience of society and sentencing
process has to be stern where it should be.
The Court will be failing in its duty if
appropriate punishment is not awarded for
a crime which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been
perpetrated,
enormity
of
crime
warranting public abhorrence and it should
'respond to the society's cry for justice
against the criminal'. [Vide: Sumer Singh
vs. Surajbhan Singh and others, (2014) 7
SCC 323, Sham Sunder vs. Puran, (1990)
4 SCC 731, M.P. v. Saleem, (2005) 5 SCC
554, Ravji v. State of Rajasthan, (1996) 2
SCC 175].

33. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, nature of offence
and the manner in which it was executed or
540 INDIAN LAW REPORTS ALLAHABAD SERIES
committed, I find that punishment awarded
to accused-appellant by Trial Court in
impugned judgment and order is not
excessive and it appears fit and proper and
no question arises to interfere in the matter
on the point of punishment imposed upon
him.

34. Appeal lacks merit and is hereby
dismissed.

35. Lower Court record along with a
copy of this judgment be sent immediately
to Trial Court for compliance.

36. Before parting, I provide that Sri
Santosh
Kumar
Srivastava
Advocate,
Amicus Curiae for accused-appellant, shall
be paid counsel's fee as Rs. 10,000/- for his
valuable assistance. State Government is
directed to ensure payment of aforesaid fee
through Legal Remembrancer, Lucknow,
without any delay and, in any case, within
one month from the date of receipt of copy
of this judgment.
----------

(2020)03-05ILR A540
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.03.2020

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 1733 of 2012

Phool Chandra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Afzaal Tariq Khan, Dinesh Kr. Sharma,
Rajesh Kumar Dwivedi, S.H. Ibrahim,
Saurabh Shankar Srivastav
Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 313 - Charge
framed u/s 306 IPC but conviction u/s
302 IPC while acquittal u/s 306 IPC-
Those circumstances which have not been
placed before the appellant at the time of
recording of his statement under Section
313 of the Cr.P.C and regarding which no
opportunity has been provided to him to
explain could not be used against him-
Even the question and evidence pertaining
to the fact that death of the deceased has
been caused by appellant has not been
placed before the appellant - He could not
have been convicted for the offence under
Section 302 I.P.C. Appellant was also
charged under section 306 of the IPC. - It
was amply clear to the appellant that he is
being tried for offence u/s 306 of the IPC
and questions pertaining to committing
this offence has also been put to him at
the time of recording his statement under
section 313 of Cr.P.C. He could not claim
any prejudice or failure of justice if he is
convicted for committing the offence
under section 306 I.P.C.

An accused cannot be convicted of an offence
regarding which he has neither been charged
nor circumstances pertaining to which have
been put to him under section 313 of the
Cr.Pc.but he can be convicted alternately of the
offence with which he was charged with and
the same would not result in any prejudice

B. Criminal law-Indian Penal Code, 1860-
Section 107/ 306- A person can be said to
have instigated another person, when he
actively suggests or stimulates him by
means of language, direct or indirect.
Instigate means to urge forward or to
provoke, incite or encourage to do an act.
The
circumstances
proved
that
the
appellant
was
regularly
beating
the
deceased and before her death the
appellant again assaulted the deceased
with fists and kicks and which therefore,
left no room for the deceased except to
take
the
extreme
step
of
suicide.