# Om Prakash v. State of U.P. (supra) that

- **Citation:** (2007) 3 ILRA 921
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-23
- **Case number:** Criminal Appeal No. 1840 of 1985
- **Bench:** Amar Saran, Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-supra-that-41176
- **Pages:** 7

## Headnote

Code of Criminal Procedure-Section 313
(4)-readwith India Evidence Act-Section
106-Conviction without evidence-merely
on the basis of confession if prosecution
evidence
vague-and
insufficient-heldcan not be supplemented by statement
of accused.

Held: Para 13

We
have
given
our
thoughtful
consideration to the above mentioned
submissions made by learned amicus
curia.
We
find
force
in
these
submissions. As mentioned earlier also,
four
witnesses
namely
P.W.1
Imrat,P.W.2 Phool Singh, P.W. 3 Umrao
Singh and P.W. 4 Km. Shanti have been
examined by the prosecution in this case
as eye witnesses, but all these witnesses
have stated in their statements that they
did
not
see
the
accused
Balwant
committing murder of his wife. P.W.1
Imrat had lodged the FIR of this case. He
has stated that the report was lodged by
the village pradhan and on his saying, he
had put his thumb impression on the
report without hearing it. All these
witnesses have been declared hostile.
Barring
the
testimony
of
these
witnesses, there is no other substantive
incriminating evidence to establish the
complicity
of
the
appellant
in
the
incident of murder of his wife. Therefore,
in our considered view, in the absence of
any substantive incriminating evidence
to
establish
the
complicity
of
the
appellant Balwant in the incident of
murder of his wife, he cannot be
convicted merely on the basis of his
confessional statement recorded in the
examination under section 313 Cr. P. C.
This Court has held in the case of Omi @
Om Prakash vs. State of U.P. (supra) that
the statement by accused under section
313 Cr. P. C. is quite different from a
confessional
statement
made
under
section 164 Cr. P. C. The expression
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"may
be
taken
into
consideration"
occurring in section 313 (4) Cr.P.C.
means at all events that the statement
made by the accused is not to have the
force of sworn evidence and a conviction
based on such statement alone cannot
be maintained". It is further held that if
the prosecution evidence is vague and
insufficient,
the
Court
cannot
supplement it by such statement of
accused by taking up passages from it.
Case law discussed:
1985 ACr.R. -481, AIR 2002 SC-3582, AIR
1953 SC-247, 2000 (41) ACC-1013

## Text

3 All] Balwant V. State of U.P.
921
authority in the departmental proceedings
and it would be open to the applicantappellant Daya Shanker Rai to canvass
the said issue in Civil Misc. Writ Petition
No. 45958 of 2006 if he is so advised
against the order passed by the District
Inspector of Schools, Ghazipur whereby
the initial approval of the suspension had
been given by the DIOS although in the
said case the appellant was not given any
interim relief or in Writ Petition No.
46970 of 2006 whereby the withdrawal of
the suspension order by the DIOS dated
19.8.2006 had been stayed by the learned
Single Judge.

25. I, therefore, find that the
applicant-appellant has not been able to
make out any good ground for obtaining
an order suspending his conviction by the
judgement and order dated 9.3.2006. Of
course, it would be open to the appellantapplicant to move an application for
expediting the appeal.

26. With these observations, this
application is rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2007

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Appeal No. 1840 of 1985

Balwant

...Appellant
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri R.P. Saxena
Sri K.K. Arora

Counsel for the Opposite Party:
Smt. Dr. Abida Sayed
A.G.A.

Code of Criminal Procedure-Section 313
(4)-readwith India Evidence Act-Section
106-Conviction without evidence-merely
on the basis of confession if prosecution
evidence
vague-and
insufficient-heldcan not be supplemented by statement
of accused.

Held: Para 13

We
have
given
our
thoughtful
consideration to the above mentioned
submissions made by learned amicus
curia.
We
find
force
in
these
submissions. As mentioned earlier also,
four
witnesses
namely
P.W.1
Imrat,P.W.2 Phool Singh, P.W. 3 Umrao
Singh and P.W. 4 Km. Shanti have been
examined by the prosecution in this case
as eye witnesses, but all these witnesses
have stated in their statements that they
did
not
see
the
accused
Balwant
committing murder of his wife. P.W.1
Imrat had lodged the FIR of this case. He
has stated that the report was lodged by
the village pradhan and on his saying, he
had put his thumb impression on the
report without hearing it. All these
witnesses have been declared hostile.
Barring
the
testimony
of
these
witnesses, there is no other substantive
incriminating evidence to establish the
complicity
of
the
appellant
in
the
incident of murder of his wife. Therefore,
in our considered view, in the absence of
any substantive incriminating evidence
to
establish
the
complicity
of
the
appellant Balwant in the incident of
murder of his wife, he cannot be
convicted merely on the basis of his
confessional statement recorded in the
examination under section 313 Cr. P. C.
This Court has held in the case of Omi @
Om Prakash vs. State of U.P. (supra) that
the statement by accused under section
313 Cr. P. C. is quite different from a
confessional
statement
made
under
section 164 Cr. P. C. The expression
922 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"may
be
taken
into
consideration"
occurring in section 313 (4) Cr.P.C.
means at all events that the statement
made by the accused is not to have the
force of sworn evidence and a conviction
based on such statement alone cannot
be maintained". It is further held that if
the prosecution evidence is vague and
insufficient,
the
Court
cannot
supplement it by such statement of
accused by taking up passages from it.
Case law discussed:
1985 ACr.R. -481, AIR 2002 SC-3582, AIR
1953 SC-247, 2000 (41) ACC-1013

(Delivered by Hon'ble V.K. Verma, J.)

1. Whether an accused can be
convicted without any evidence merely on
the basis of his admissions/confession
made in the examination under section
313 of the Code of Criminal Procedure, is
the main question for consideration before
us in this appeal, which has been
preferred against the judgment and order
dated 24.09.1984 passed by the Sessions
Judge Moradabad, in S.T. No. 543 of
1983, whereby the appellant-accused
Balwant
has
been
convicted
and
sentenced to undergo imprisonment for
life under section 302 IPC.

2. The appellant Balwant was put on
trial for committing murder of his wife
Smt. Ram Pyari in the intervening night
of 6/7-05-1983 at about 4.00 a.m. First
Information report was lodged at P.S.
Asmauli by Imrat S/o Mokhi r/o Akbarpur
Gahra on 07.05.1983. The case of
prosecution, as per FIR (Ext. Ka 1), in
brief, is that when on hearing the shriekes
from the house of Balwant on 07.05.1983
at about 4.00 a.m., the first informant
Imarat and Umrao S/o Moli along with
Phool Singh S/o Chhuttan reached his
house, flashing torch light, they saw that
Balwant was throttling his wife Smt. Ram
Pyari sitting on her chest and his children
were dragging him with a view to save
their mother. On reaching these witnesses,
Balwant fled away from his house. His
wife Ram Pyari died instantaneously on
the cot. The first informant Imrat went to
P.S. Asmauli and gave oral information
about the aforesaid incident. The then
constable
clerk
Natthu Lal Rastogi
prepared chik FIR (Ext. Ka 1) and
registered a case under section 302 IPC
against the appellant Balwant at Crime
No. 119/83 on 07.05.1983 at 8.30 A.M.
and made entry in GD No. 19 (Ext. Ka 5).

3. On lodging the FIR, investigation
was entrusted to S.I. Bharat Singh
(P.W.6), who went to the place of incident
and conducted inquest proceedings on the
dead body of Smt. Ram Pyari, during
which inquest report (Ext. Ka 7) and
connected papers (Ext. Ka 8 to Ka 10)
were prepared and thereafter, the dead
body was sent in sealed condition for
post-mortem examination, which was
conducted by Dr. D.N. Khanna (P.W.5),
on 09.05.1983 at 3.30 p.m.. According to
the post-mortem report (Ext. Ka 4) the
following
ante-mortem
injuries were
found on the person of deceased:-

1. Ligature mark 6 cm. broad in the
front
of
neck,
below
thyroid
cartilage, Continuous on the back
and circular. Bruises and abrasions
present round about the ligature
mark. Base is ecchymosed.
2. Contusion 2 x 2 cm. on the chin 3
cm. below the lower lip.
3. Bruises and abrasions present in an
area of 3 x 4 cm. on the outer either
side of front of neck. They are
clustered together.
3 All] Balwant V. State of U.P.
923
On internal examination, Brain & its
Membrances,
Larynx,
Trachea
&
Bronchi, both lungs, pleura, Liver and
Gall Bladder, both Kidneys and Spleen
were found congested. Neck muscles and
Neck Blood vessels were lacerated and
congested. Clotted blood present in the
neck muscles. Fracture of right hyoid
bone and right 2-5 ribs was found.

The death was caused due to
Asphyxia as a result of strangulation
(manual & by ligature).

4. During investigation, site plan
(Ext. Ka 14 ) was prepared by S.I. Bharat
Singh,
who
also
prepared
Fard
supurdaginama (Ext. Ka 2 and Ext. Ka 3)
of torches. Rest investigation was carried
out by S.O. Umesh Chandra Mishra, who
after completion of the investigation
submitted charge-sheet (Ext. Ka 16).

5. On the case being committed to
the court of session for trial, the appellant
was charged under section 302 IPC vide
order dated 31.10.1983. He pleaded not
guilty and claimed to be tried.

6. The prosecution in order to prove
its case has examined six witnesses in all
in this case. P.W.1 Imrat, P.W.2 Phool
Singh, P.W. 3 Umrao Singh and P.W. 4
Kumari Shanti were examined as eye
witnesses of the incident of committing
murder of Smt. Ram Pyari by the accused
Balwant, but these witnesses have not
supported the case of prosecution and
they all have been declared hostile. P.W.
5 Dr. D.N. Khana has proved postmortem report (Ext Ka 4). P.W.6 S.I.
Bharat Singh has proved chik FIR Ext. Ka
1 and copy of G.D. of registration of the
case Ext. Ka 5 by recognizing the hand
writing
and
signature
of
the
then
constable clerk Nathu Lal. He has also
proved inquest report Ext. Ka 7) and
connected papers as mentioned above.
Charge-sheet Ext. Ka 16 has also been
proved by this witness by recognizing the
hand writing and signature of S.O. Umesh
Chandra Mishra.

7. In his statement recorded under
section 313 Cr.P.C. the appellant has
stated that he committed the murder of his
wife Ram Pyari by pressing her neck
sitting on her chest, due to which she died
instantaneously. It is further stated by the
accused that the witnesses did not see any
incident and when Ram Pyari died, he
fled away from the place of occurrence.

8. The learned Trial Court taking
into
consideration
the
confessional
statement of the appellant recorded in the
examination under section 313 Cr. P. C.
and other evidence on record, convicted
and sentenced him as mentioned in para 1
above. Hence this appeal.

9. Since the counsel for the appellant
did not appear to argue, hence Dr. Abida
Sayeed, Advocate, was appointed amicus
curiae vide order dated 30.10.2007. We
have heard learned amicus curiae for the
appellant and learned AGA for the
respondent and also perused the entire
evidence on record including impugned
judgment.

10. In this case, all the four alleged
eye
witnesses
examined
by
the
prosecution have turned hostile and no
other substantive evidence to prove the
complicity of the appellant in the incident
of murder of his wife Smt. Ram Pyari has
been produced. The appellant has been
convicted and sentenced mainly on the
basis
of
his
confessional
statement
924 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
recorded in the examination under section
313 Cr. P. C. Therefore, as mentioned in
para 1 above also, the main point for
consideration in this appeal is, whether in
the
absence
of
any
substantive
incriminating
evidence
against
the
accused, conviction can be based on his
confessional statement recorded in the
examination under section 313 Cr. P. C.

11. Placing reliance on the case of
Omi @ Om Prakash vs. State of U.P.
1985 A.Cr.R. 481, it was vehemently
contended by learned amicus curiae that
conviction of the appellant on the basis of
his confessional statement recorded in the
examination under section 313 Cr. P. C. is
bad in law, because all the four alleged
eye witnesses namely Imrat, Phool Singh,
Umrao Singh and Km. Shanti have not
supported the case of prosecution and
there is no other substantive incriminating
evidence against the appellant to prove his
complicity in the incident of murder of his
wife Smt. Ram Pyari. In this regard, it
was contended by learned amicus curiae
that the answers given by the accused in
his examination under section 313 Cr. P.
C. is not evidence within the meaning of
section 3 of Indian Evidence Act and
conviction cannot be based merely on
such answers containing admission of the
guilt by the accused. It was also submitted
by
learned
Amicus
curiae
that
examination of the appellant made by the
court below under section 313 Cr.P.C. is
improper, as certain circumstances which
do not appeal in the evidence, have also
been put to the appellant and hence any
statement made by him cannot be take in
to consideration for convicting him.

12. The learned AGA also fairly did
not
seriously
dispute
aforesaid
contentions made by learned amicus
curiae.

13. We have given our thoughtful
consideration to the above mentioned
submissions made by learned amicus
curia. We find force in these submissions.
As mentioned earlier also, four witnesses
namely P.W.1 Imrat, P.W.2 Phool Singh,
P.W. 3 Umrao Singh and P.W. 4 Km.
Shanti have been examined by the
prosecution in this case as eye witnesses,
but all these witnesses have stated in their
statements that they did not see the
accused Balwant committing murder of
his wife. P.W.1 Imrat had lodged the FIR
of this case. He has stated that the report
was lodged by the village pradhan and on
his saying, he had put his thumb
impression on the report without hearing
it. All these witnesses have been declared
hostile. Barring the testimony of these
witnesses, there is no other substantive
incriminating evidence to establish the
complicity of the appellant in the incident
of murder of his wife. Therefore, in our
considered view, in the absence of any
substantive incriminating evidence to
establish the complicity of the appellant
Balwant in the incident of murder of his
wife, he cannot be convicted merely on
the basis of his confessional statement
recorded in the examination under section
313 Cr. P. C. This Court has held in the
case of Omi @ Om Prakash vs. State of
U.P. (supra) that the statement by
accused under section 313 Cr. P. C. is
quite
different
from
a
confessional
statement made under section 164 Cr. P.
C. The expression "may be taken into
consideration" occurring in section 313
(4) Cr.P.C. means at all events that the
statement made by the accused is not to
have the force of sworn evidence and a
conviction based on such statement alone
3 All] Balwant V. State of U.P.
925
cannot be maintained". It is further held
that if the prosecution evidence is vague
and
insufficient,
the
Court
cannot
supplement it by such statement of
accused by taking up passages from it.

14. The Hon'ble Supreme Court in
the case of Mohan Singh vs. Prem Singh
and another AIR 2002 SC 3582 has held
that the statement made by the accused
under section 313 of the Code of Criminal
Procedure can certainly be taken aid of to
lend credence to the evidence led by the
prosecution, but only a part of such
statement under section 313 of the Code
cannot be made the sole basis of his
conviction.

15. In the case of Vijendrajit
Ayodhya Prasad Goel vs. State of
Bombey AIR 1953 SC 247, the Hon'ble
Supreme Court has held that the statement
recorded under section 313 Cr. P. C.
cannot be regarded as evidence and
conviction of the accused cannot be based
merely on this statement.

16. Therefore, having regard the law
laid down in the above mentioned rulings,
in instant case also, the appellant could
not be convicted for the murder of his
wife merely on the basis of admissions
made in the answers given to the
questions put to him in the examination
under section 313 Cr.P.C., because there
is no other substantive incriminating
evidence to establish his complicity in the
incident of murder of his wife. Hence, in
our view, the conviction and sentence of
the appellant is not in accordance with
law.

17. From the statement of the
appellant recorded under section 313
Cr.P.C., it is observed that the court
below did not formulate proper questions.
The question No. 2 is that "it has come in
the evidence that you pressed the neck of
your wife Ram Pyari sitting on her chest
in the intervening night 6/7-05-1983 at
about 4.00 a.m. due to which she died on
the place of incident, what have you to
say about it". This question cannot be put
to the accused in his examination under
section 313 Cr. P. C., because there is no
evidence on record to show that the
accused had pressed the neck of his wife
in intervening night of 6/7-05-1983 at
about 4.00 a.m. No witness has stated in
his statement that the accused Balwant
had pressed the neck of his wife on the
alleged date, time and place. Therefore,
there was no occasion for the court below
to put question no. 2 before the accused in
the manner as mentioned above. Similarly
question No. 3 also can not be put in the
manner as it has been formulated, because
the witnesses Imrat, Phool Singh, Umrao
and Kumari Shanti had not seen the
incident as stated by them in their
statements.
Only
the
incriminating
circumstances appearing in the evidence
against the accused can be put in the
examination under section 313 Cr.P.C. If
there is no incriminating circumstance
appearing in the prosecution evidence to
explain which the accused could be
examined,
his
examination
by
the
Magistrate or Judge is improper and any
statement made by him cannot be taken
into consideration for convicting him. As
mentioned above, the court below had put
certain circumstances in the examination
of the appellant under section 313
Cr.P.C., which did not at all appear in the
evidence led by the prosecution. That
being so, in our considered view, the
examination of the appellant made by the
court below is improper and hence any
statement containing his admission for
926 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
committing the murder of his wife made
by him in answers to the questions put to
him in the examination under section 313
Cr.P.C. cannot be taken into consideration
for convicting him.

18. Although the murder of Smt.
Ram Pyari was committed in the house of
appellant, but in our view, the appellant
can not be convicted in this case with the
aid of section 106 of Indian Evidence Act.
The reason for our coming to this
conclusion is that there is no reliable
evidence on record to show that in the
fateful light, the appellant and the
deceased had slept together in the room in
which
her
murder
was
committed.
Although P.W.1 Imrat and P.W. 2 Umrao
Singh have stated in their statements in
cross-examination
that
Balwant
was
present at his house on the day of
incident, but this evidence cannot be used
against
the
appellant,
because
this
circumstance appearing in the statements
of these witnesses was not put to him in
his examination under section 313 Cr.P.C.
The law is well settled that if any
circumstance appearing in evidence has
not been put to the accused at the time of
his examination under section 313 Cr.P.C,
then
the
evidence
regarding
that
circumstance cannot be used against him.
The Hon'ble Apex Court in the case of
Basava Raj R. Patil & others vs. State of
Karnataka & others 2000 (41) ACC 1013
has held that the circumstance about
which the accused was not asked to
explanation cannot be used against him.
Therefore, in instant case also, on the
basis of aforesaid statements of the
witnesses Imrat and Umrao Singh, it
cannot be presumed with the appellant
Balwant and his wife Smt. Ram Pyari had
slept together in the fateful night in the
room
in
which
her
murder
was
committed. Moreover, P.W.4 Km. Shanti,
who is the daughter of deceased and
appellant has stated in her statement that
in the fateful night her mother had slept
alone in the room (kotha) and her father
was not present at the house on that day.
Therefore, seeking aid of Section 106 of
Indian Evidence Act, the appellant cannot
be deemed to have committed murder of
the deceased.

19. For the reasons mentioned herein-above, this appeal has to be allowed, as
the conviction and sentence of the
appellant merely on the basis of his
confessional statement made in the
examination under section 313 Cr. P. C.
cannot be sustained, being wholly illegal.
It
is
worthwhile
to
mention
that
unfortunately the appellant has served out
the entire sentence imposed by the court
below vide impugned judgment, as is
evident from the report dated 27.10.2007
of
the
Chief
Judicial
Magistrate
Moradabad.

20. In the result, the appeal is
allowed. The conviction and sentence of
the appellant -accused Balwant in S.T.
No. 543 of 1983 are set aside and he is
acquitted of the charge under section 302
IPC.

Let the lower court record along with
a copy of this judgment be returned
expeditiously.

 Appeal allowed.
---------
3 All] Baldeo Singh V. The State of U.P. and others
927
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No.1527 of 2007

Baldeo Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri A.P. Tewari
Sri S.S. Tripathi

Counsel for the Respondents:
S.C.

Constitution
of
India-Art.
39
(d)-
Principle of 'Equal Pay for Equal Work'-
can not be applied mechanically on
ground of nomenclature-it depends upon
variety
of
factors-even
a
single
difference may justify differences in Pay
Scale-Lab
Assistant
(Ayurvedic)-
eligibility of work, area of work different,
service
rules
different-held-can
not
invoke the said principle.

Held: Para 21

In view of the aforesaid exposition of
law and considering the facts that the
qualification, nature of work etc. of the
Lab
Assistant
(Ayurved)
and
Lab
Assistant (Rural) both cannot be said to
be identical in any manner, in our view,
the petitioner cannot invoke the above
principle being situated differently. We,
therefore, do not find any factual or legal
error in the judgment of the Hon'ble
Single Judge impugned in this appeal
warranting interference.
1982 (1) SCC-618, 1987 (4) SCC-505, 1998 (3)
SCC-91, 1988 (3) SCC-354, 1989 (1) SCC-121,
J.T. 1991 (1) SC-60, J.T. 1992 (2) SC-27, AIR
1992 SC-126, 1993 (1) SCC-539, 1994 (2)
SCC-521, 1995 (6) SCC-515, J.T. 1995 (2)
SCC-521, 1995 (6) SCC-515, J.T. 1995 (2) SC578, JT 1995 (2) SC-578, J.T. 196 (7) SC-438,
AIR 1968 SC-349, AIR 1974 SC-1, 1993 (2)
SCC-340, AIR 1997 SC-1788, 1997 SCC-24,
2000 (8) SCC-580, 2003 (1) SCC-200, 2002
96) SCC-72, 2002 (4) SCC-556, AIR 2006 SC161, AIR 2007 SC-1948, J.T. 2007 (10) SC272.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. The intra court appeal, under the
rules of the court, arises from the
judgment of the Hon'ble Single Judge
dated 25.9.2007 dismissing the appellant's
Civil Misc. Writ Petition No.46478 of
2007, which had been preferred against
the order of the State Governmentrespondent no.1 dated 5.9.2007.

2. We have heard Shri S.S. Tripathi,
learned counsel for the appellant and the
learned Standing Counsel appearing for
the respondents and perused the record.

3. It appears that the petitionerappellant is working as Lab Assistant
(Rural). However, he made representation
before the State Government claiming pay
scale of Lab Assistant (Ayurved), which
had been rejected vide order dated
5.9.2007.
Aggrieved,
the
appellant
preferred the aforesaid writ petition. The
Hon'ble Single Judge having heard
learned counsel for the parties and having
noticed that the eligibility of work and the
area of work being different held that
there could be no comparison between the
Lab Assistant (Ayurved) and the Lab
Assistant
(Rural)
and,
therefore,
dismissed the writ petition. Hence, this
appeal.

4. Shri S.S. Tripathi, learned counsel
for the appellant vehemently contended
that earlier there were only one cadre of