# Phoolan v. State of U.P - **Citation:** (2011) 3 ILRA 1333 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2011-10-14 - **Bench:** Amar Saran, Shyam Shankar Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phoolan-v-state-of-u-p-41999 - **Pages:** 7 ## Headnote Criminal Appeal-offence under Section 302 I.P.C.-conviction of life imprisonment-challenged on ground-no forensic report to proof the blood sustained 'Balkati'-was human blood-no denial that said "Balkati" sent to forensic laboratory-can be laps on part of prosecution-but can not be ground for denial of prosecution evidence where the appellant in statement under Section 313 has admitted the guilt showing anguish for criticism of his "Guru"- conviction upheld-however after 14 years for premature release under section 433-A be considered sympathetically. Held: Para 25 Regarding the fact that there is no forensic report on record confirming whether the blood on the "Balkati" was human bhood, but the factum that it was sent to the forensic laboratory cannot be denied. Not obtaining the report from the forensic laboratory appears to be a lapse of the prosecution and only on that count, the prosecution evidence cannot be discarded especially in view of the fact that the appellant himself has admitted in his statement under section 313 Cr.P.C that the "Balkati" has been recovered from him. ## Text 3 All] Phoolan V. State of U.P. 1333 APPELLATE JURISDICTION CRIMINAL SIDE] DATED: ALLAHABAD 14.10.2011 BEFORE THE HON'BLE AMAR SARAN,J. THE HON'BLE SHYAM SHANKAR TIWARI,J. Criminal Jail Appeal No. - 5463 Of 2007 Phoolan ...Petitioner Versus State of U.P. ...Respondent Counsel for the Petitioner: Ms Seema Pandey (Amicus Curiae) Counsel for the Respondents: A.G.A. Criminal Appeal-offence under Section 302 I.P.C.-conviction of life imprisonment-challenged on ground-no forensic report to proof the blood sustained 'Balkati'-was human blood-no denial that said "Balkati" sent to forensic laboratory-can be laps on part of prosecution-but can not be ground for denial of prosecution evidence where the appellant in statement under Section 313 has admitted the guilt showing anguish for criticism of his "Guru"- conviction upheld-however after 14 years for premature release under section 433-A be considered sympathetically. Held: Para 25 Regarding the fact that there is no forensic report on record confirming whether the blood on the "Balkati" was human bhood, but the factum that it was sent to the forensic laboratory cannot be denied. Not obtaining the report from the forensic laboratory appears to be a lapse of the prosecution and only on that count, the prosecution evidence cannot be discarded especially in view of the fact that the appellant himself has admitted in his statement under section 313 Cr.P.C that the "Balkati" has been recovered from him. (Delivered by Hon'ble Amar Saran, J.) 1. This jail appeal has been filed against a judgement and order dated 10.06.2005 passed by the learned Sessions Judge, Baghpat convicting and sentencing the appellant Phoolan Singh to life imprisonment under section 302 IPC. 2. The case of the prosecution was that the informant Virendra Pal's father Baljor, was smoking a "Hukka" in the Gher of the adjoining house of Om Pal and Arvind. At that time appellant-Phoolan Singh, the servant of Arvind and Om Pal, arrived there with a "Balkati" in his hand and assaulted Baljor, who was badly injured. This incident was witnessed by Naresh, Om Prakash and Indrapal. The report of this incident was lodged at 4.15 PM on 4.1.2004 at the police station Ramala, district Bagpat under section 307 IPC by Virendra Pal. 3. The injured Baljore was medically examined at CHC, Baraut at 5.00 PM on 4.12004 by PW 6 Dr. Ravindra Kumar, who found the following injuries on his body: 1. Incised wound 5 cm x 1 cm into bone deep over left side forehead 3 cm above outer angle of left eye. 2. Incised wound 4 cm x 5 cm into bone deep over left side skull, 5 cm above middle of left eyebrow. 3. Incised wound 3 cm x 5 cm into bone deep over left side back, 9 cm from left ear. 1334 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 4. Incised wound 5 cm x 1 cm into bone deep over back of left hand 3 cam below wrist joint. 5. Incised wound 5 cm x 1 cm into bone deep over front of right leg, 9 cm below the right knee joint. " 4. However, during the course of medical examination, Baljor expired. The post-mortem on the corpse of the deceased was conducted by PW 4 Dr. Rakesh Kumar at 3.00 p.m. on 5.1.2004. The time since death was one day. Rigor mortis was present all over the body. The Doctor found the following ante-mortem injuries on the body of the deceased: 1. Incised wound 4 cm x 1 cm x bone deep on the left side of head 9 cm above left pinna. 2. Incised wound 6 cm x 1 cm x bone deep in left side head 8 cm above left pinna. 3. Incised wound 4 cm x 5 cm x bone deep on back of left side head7 cm behind left pinna. 4. Incised wound 3 cm x 0.5 cm x bone deep on back of left side head 9 cm behind left pinna. 5. Incised wound 7 cm x 1 cm on the back of neck, 4 cm behind left pinna. 6. Incised wound 4 cm x 0.5 cm on the left parietal region. 7. Incised wound 2 cm x 0.5 cm x muscle deep in front of sternum 2 cm below medial end of rt. Clavicle 8. Incised wound 5 cm x 1 cm x bone deep in outer part of left forearm 8 cm above wrist. 9. Incised wound 5 cm x 1 cm x bone deep on back of left head. 10. Incised wound 4.0 cm x 1.0 cm x muscle deep in the inner part of right leg, 5 cm below knee. 5. On internal examination, the doctor noted that all the ribs were fractured, both lungs, pericardium, heart, vessel were lacerated. The death had occurred as a result of ante-mortem injuries. 6. The prosecution has examined eight witnesses in this case. PW 1, Virendra, son of the deceased Baljor and PW 2, Km. Asha, the daughter of Virendra and granddaughter of the deceased are the two eyewitnesses. PW 3, Brahma Pal is the witness of the recovery of "Balkati" from the appellant. PW 4, Dr. Rakesh Kumar, conducted the post-mortem of the deceased as mentioned above. PW 5, Constable Hari Singh prepared the check report. PW 6, Dr. Ravindra Kumar prepared the injury report of Baljor before he died. PW 7, SO Mehar Singh, took the appellant into custody and was the first investigating officer. PW 8, Devendra Kumar was the second investigating officer, who concluded the investigation. 7. PW 1, Virendra has deposed that on the date of incident at about 5.00 p.m., his father Baljor was smoking "Hukka" in the Gher of Ompal. The appellant Phoolan, who was the servant of Ompal arrived there and gave several blows on the head of the deceased with a "Balkati". Other persons also arrived at the spot and surrounded the appellant and caught hold of him. Virendra 3 All] Phoolan V. State of U.P. 1335 took his father to the police station where he lodged the report after dictating it to Jitendra. Thereafter he took his father to the Government Hospital, Baraut where he died during the course of treatment. 8. PW 2, Km. Asha has deposed that on the date of incident at about 4 or 4.15 p.m., her grand-father Baljor was smoking "Hukka" in the Gher of Ompal. The appellant struck her grand-father with a "Balkati", who cried out as a result of the assault. She was standing on the roof when the incident took place. On the cries of her grand-father, her father and others arrived at the spot. They tried to catch hold of the appellant, who fled from the spot, but he was surrounded and caught hold of at the "Kudi" of Mahipal Singh. Her grand-father had fallen down from the "Charpai" (cot) on which he was sitting as a result of the assault by the appellant. Her father and others took her grand-father to the Government Hospital. 9. PW 3, Brahma Pal was the witness of the recovery memo of "Balkati". He has deposed that he was present in the village on the date of incident. After the assault on Baljor in Ompal's Gher, he also proceeded towards the Gher, where a crowd had gathered. Ompal's servant Baljor ran towards the crowd with a "Balkati", then the crowd threw stones on him, because of which he had fallen down at the "Kudi" of Mahipal. Then this witness and others caught hold of him and put him in a tractor trolley and produced him in the police station Ramala along with his "Balkati", which was bloodstained. The recovery memo of the 'Balkati' was prepared by the police officials (Ext. Ka-2). 10. PW 4 Rakesh Kumar has conducted the post-mortem on the body of the deceased which has already been described herein above. 11. PW 5, Constable Hari Singh has deposed that after the informant Virendra got a written report (Ext. Ka 1) lodged at the police station Ramala on 4.1.2004 in his presence, this witness registered a case at case crime No. 1 of 2004, under section 307 IPC at 4.45 PM. He also made a General Diary entry. He handed over a letter for medical examination (Ext. Ka 6) to Constable Jagdish Prasad and referred the deceased, who was then injured to CHC, Baraut. He was informed by Constable Jagdish Prasad by telephone that Baljor has died at 6.50 p.m. On the basis thereof he converted the case from one under section 307 IPC to one under section 302 IPC at 7.00 p.m. on the same day, vide GD entry No. 33 (Ext. Ka-7). He also stated that Virendra, Brahma Pal and others, residents of village Kandera brought the appellant Phoolan in an unconscious condition to the police station along with the "Balkati." The GD entry No. 31 with regard to this fact was made at 6.45 p.m. On 4.1.04 (Ext. Ka- 8). 12. PW 6, Dr. Ravindra Kumar, had examined the deceased at CHC, Baraut, as mentioned above, when he was initially brought to the hospital in an injured condition. 13. PW 7, SO Mehar Singh, has stated that on 6.1.2004 he was posted as S.O. of police station Ramala. He began investigation of this case. The appellant was admitted in the Orthopedic wing of P.L. Sharma Hospital, Meerut due to his injuries. On 13.1.2004 the appellant was discharged from the hospital and taken into custody. His statement was recorded. On 30.1.2004 1336 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 PW 7 was transferred out of the police station. 14. PW 8, Devendra Kumar, who was the final investigating officer of this case, has stated that on 4.1.2004 he was posted as S.I. at PS Ramala. The investigation was handed over to him. On the pointing out of the informant, he prepared the site plan of the place of occurrence (Ext. Ka 11). He collected the plain and bloodstained earth from the spot and prepared the recovery memos (Ext. Ka- 12). After the deceased died as a result of the injuries received by him at the time of incident, the case was converted to one under section 302 IPC and the inquest was conducted on the corpse of the deceased (Ext. Ka 13). Report RI, Challan nash, photo nash, report CMO were prepared (Ext. Ka 14 to 17). On 14.2.2004 the "Balkati" was sent to the Forensic Laboratory. After a prima facie was established against the appellant, the charge sheet (Ext. Ka 18) was submitted in the Court by S.O. Om Prakash Singh. 15. In his statement under section 313 Cr.P.C., the appellant has admitted that he had assaulted the deceased because he had made a complaint against his "Guruji." He also admits working with Ompal, son of Tilak Ram at the time of incident. He admits that he was arrested on the same day after being given a beating by the villagers of village Kandera and that he was taken to the police station along with the weapon of assault, which was noted at G.D. No. 31. He either disclaims knowledge or denies the questions such as preparation of the FIR and other procedures carried out during investigation. He claims to have been falsely implicated. He could give no reason why the case was filed against him. 16. We have heard Ms Seema Pandey, learned Amicus Curiae for the appellant and learned Additional Government Advocate. 17. Learned Amicus Curiae submitted that absolutely no motive has been assigned for this offence. The informant has not described himself as an eyewitness and the other eyewitness Km. Asha, PW 2, was also not shown as an eyewitness in the FIR. The FIR does not mention the factum of arrest of the appellant at the spot by the public witnesses. There is no forensic report with for confirming that "Balkati" assigned to the appellant contained human blood. There was no signature of the accused on the recovery memo. 18. Learned Additional Government Advocate on the other hand argued that the case against the appellant is clearly established. He was named in the FIR, which was promptly lodged within half an hour of the incident at police station Ramala, which was 5 kms. away. In his statement under section 313 Cr.P.C., the appellant admitted that he was arrested on the spot. He also admits having assaulted the deceased because the deceased had made a complaint about his "Guruji". PW 2, the grand-daughter of the deceased was a natural witness as she saw the incident from the roof where she was standing and it was not very material that her name was not mentioned in the FIR. The medical evidence is clearly consistent with the eyewitness account. All the ten incised wounds on the body of the deceased appear to have been caused by "Balkati". 19. We have considered the submissions advanced by the learned counsel for the parties and have examined the record and the judgement of the trial court. 3 All] Phoolan V. State of U.P. 1337 20. The absence of motive in the FIR or in the evidence can provide no good reason for discarding the prosecution case especially when there is a clear and cogent testimony of the witnesses nominating the appellant as the sole assailant in this crime. Furthermore, the appellant was arrested immediately after the incident when he was surrounded by the villagers from the "Kudi" of Mahipal. He was then brought to the police station by Virendra, Brahmpal and others along with the bloodstained "Balkati", which was recovered from him. 21. Most significantly, the appellant himself in his statement under section 313 Cr.P.C. has admitted having assaulted the deceased because the deceased had criticized his "Guruji." He also admits having been arrested from the spot and having been taken to the police station by the villagers along with "Balkati". 22. In State of Maharashtra v Sukhdeo Singh, AIR 1992 SC 2100 it has been held by the Apex Court that in view of section 313(4) Cr.P.C. there is no impediment in taking the confessional statement or admission of the appellant into consideration given in his statement under section 313 Cr.P.C. for recording his conviction, and it can even form the sole basis for conviction. Paragraphs 51 of Sukhdeo (supra) may be usefully extracted here: "51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he give false answer. Then comes sub-section (4), which reads : "313 (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." Thus, the answers given by the accused, in response to his examination, under Section 313, can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R. B. Chowdhari (1967) 3 SCR 708 : AIR 1968 SC 110 : (1968 Cri LJ 95). This Court, in the case of Hate Singh Bhagat Singh v. State of M. B. (1953 Cri LJ 1933 : AIR 1953 SC 468) held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab (1963) 3 SCR 678 : (1964) 1 Cri 730, this Court held that if the accused confesses to the commission of the offence with which he is charged, the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three Judge bench answered the question, it would be advantageous to reproduce the relevant observations at pages 684-685 : "Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may, at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence, shall put questions to 1338 INDIAN LAW REPORTS ALLAHABAD SERIES [2011 the accused person for the purpose of enabling him to explain any circumstance appearing, in the evidence, against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation, if any, of the incident, which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him, the Court may, relying upon that confession, proceed to convict him; but if he does not confess and, explaining circumstance, appearing in the evidence against him, sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety." 23. We also think that non-mentioning of the names of PW 2 Km. Asha in the FIR is not very material. At the time of incident Km. Asha was standing on the roof from where she saw the incident. On hearing the cries, her father and others arrived at the spot and within half an hour, the FIR had been lodged at PS Ramala, which was 5 kms away from the place of incident. It was possible that no conversation took place between the informant and her daughter, as the informant immediately rushed to the police station, and thereafter for getting the deceased medical help, hence nonmentioning of her name in the FIR was not a matter of any consequence . 24. In Raj Kishore Jha Vs. State of Bihar and others, (2003)11 SCC 519 and Dhiraj Bhai Gorakhbhai Nayak Vs. State of Gujarat, (203) 9 SCC 322, it has been held that non mention of names of witnesses in the FIR, can provide no reason to discard the presence of the witnesses or to doubt their testimony if the testimony of the witnesses otherwise inspires confidence . It is also well settled that the FIR is not expected to be an encyclopedia and all details are not required to be given in the FIR. 25. Regarding the fact that there is no forensic report on record confirming whether the blood on the "Balkati" was human bhood, but the factum that it was sent to the forensic laboratory cannot be denied. Not obtaining the report from the forensic laboratory appears to be a lapse of the prosecution and only on that count, the prosecution evidence cannot be discarded especially in view of the fact that the appellant himself has admitted in his statement under section 313 Cr.P.C that the "Balkati" has been recovered from him. 26. From what has been indicated herein above, we are satisfied that the prosecution was successful in establishing its case beyond reasonable doubt against the appellant. Accordingly the conviction recorded by the learned Additional District Judge is upheld. 27. Before parting we would like to observe that a perusal of the record and evidence shows that the appellant does not appear to be a hardened criminal. He himself seems to have naively admitted of having assaulted the deceased because he had criticized his "Guruji." Therefore, we observe that after actual imprisonment of 14 years, the case of the appellant for premature release under section 433A of the Code of Criminal Procedure and other 3 All] Nizamuddin Khan @ Shabbu and another [U/A 227 ] V. A.D.J. Lucknow and others 1339 provisions may be considered sympathetically. 28. With the aforesaid observations, this jail appeal is dismissed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 01.11.2011 BEFORE THE HON'BLE ANIL KUMAR,J. Misc. Single No. - 7585 of 2010 Nizamuddin Khan @ Shabbu and another [U/A 227 ] ...Petitioner Versus Additional District Judge Lucknow and others ...Respondents Counsel for the Petitioner: Sri M.A.Khan Counsel for the Respondents: Sri Manish Kumar Code of Civil Procedure-Order XXXIX Rule 4-vacation of ex parte injunction order-inspite of service of noticepetitioner failed to appear on date fixedTrail Court granted ex-parte injunction order-application to vacate such ex-pate interim order-held-maintainable-Trail Court directed to decide said application within 6 month. Held: Para 14 In view of the said facts, although the notices were issued by the trial court on an application for grant of injunction but thereafter neither petitioners/defendants had put their appearance in the matter in question before the trial court nor they filed objection to the application for grant of injunction order, the same has been granted ex-parte. Hence, I am of the considered opinion that there is no legal impediment or embargo on the part of petitioners/defendants to move an application under Order 39 Rule 4 CPC for vacation of the ex-parte injunction order, as the said provision clearly lays down that if an injunction order is passed, after hearing counsel for the parties, the same cannot be discharged, varied, modified or set aside. Case law discussed: AIR 1985 NOC 59 (Orissa); AIR 1976 Mad 350 (Delivered by Hon'ble Anil Kumar,J. ) 1. Heard Sri Mohd. Arif Khan, learned Senior Counsel assisted by Sri Mohd. Aslam Khan, learned counsel for petitioner, Sri Nripendra Misrha, Advocate holding brief of Sri Manish Kumar, learned counsel for respondent Nos. 1 and 2 and Sri Surendra Pratap Singh, learned counsel appearing on behalf of respondent Nos. 3 and 4. 2. Facts in brief as submitted by Sri Mohd. Arif Khan, Senior Advocate are that respondent Nos. 3 and 4/plaintiffs filed a suit for permanent injunction registered as Regular Suit No. 50 of 2010,(Sri Shashi Kant Bajpayee and another Vs. Sri Nizamuddin and another) in the Court of Civil Judge North (J.D.), Lucknow. In the said suit, an application for grant of temporary injunction has been moved on behalf of plaintiffs/respondents and on 23.04.2010, a temporary injunction was granted in favour of plaintiffs/respondents. Subsequently, modified vide order dated 26.04.2010 (Annexure No. 4) by the trial court. 3. On 02.05.2010, petitioners/defendants moved an application under Order 39 rule 4 read with Section 151 CPC for vacation of the exparte injunction order granted in favour of plaintiffs/respondents(Annexure No. 5).