# Sewak v. State of U.P

- **Citation:** (2019) 2 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-12
- **Case number:** Jail Appeal No. 1338 of 2012
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sewak-v-state-of-u-p-44768
- **Pages:** 7

## Headnote

A. Indian Penal Code, 1860 - Section 304
- Appeal against conviction.
Prosecution has brought this case before
Court, as a case of direct evidence, but Trial
Court, on the failure of prosecution case as
direct evidence, turned it as a case of
circumstantial evidence and considering the
case of circumstantial evidence and convicted
and sentenced accused-appellant on the basis
of surmises flouting all judicial principles. (Para
30)
Neither formal witnesses nor eye witnesses
supported prosecution case. There is no iota
of evidence against accused-appellant to
connect him with present crime or holding him
guilty. (Para 29)
Jail Appeal allowed (E-2)

## Text

424 INDIAN LAW REPORTS ALLAHABAD SERIES
for the offence under Section 302 I.P.C., 2
years rigorous imprisonment for the
offence under Section 504 I.P.C. and 7
years rigorous imprisonment for the
offence under Section 506 I.P.C. is hereby
maintained and confirmed.

41. Lower Court record alongwith a
copy of this judgment be sent back
immediately to Court concerned for
necessary compliance. Copy of judgment
be also sent to accused-appellant through
the Jail Superintendent concerned for
intimation forthwith.
----------

(2019)10ILR A 424

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 1338 of 2012

Sewak ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Radheshyam Yadav (A.C.)

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

A. Indian Penal Code, 1860 - Section 304
- Appeal against conviction.
Prosecution has brought this case before
Court, as a case of direct evidence, but Trial
Court, on the failure of prosecution case as
direct evidence, turned it as a case of
circumstantial evidence and considering the
case of circumstantial evidence and convicted
and sentenced accused-appellant on the basis
of surmises flouting all judicial principles. (Para
30)
Neither formal witnesses nor eye witnesses
supported prosecution case. There is no iota
of evidence against accused-appellant to
connect him with present crime or holding him
guilty. (Para 29)
Jail Appeal allowed (E-2)

(Delivered by Hon'ble Rajendra KumarIV, J.)

1. Accused-appellant stood for trial
in Sessions Trial No. 27 of 2009 (State v.
Sewak, Case Crime No. 320 of 2008),
under Section 304 IPC, Police Station
Shivpur, District Varanasi, in the Court of
Additional District and Sessions Judge,
Court No.5, Varanasi and came to be
convicted by said Court, vide judgment
and order dated 07.12.2011, sentencing
him under Section 304 IPC to undergo
imprisonment for life and fine of Rs.
50,000/-. In default of payment of fine, he
shall
further
undergo
six
months'
additional
imprisonment.
Appellant
sought interference of this Court by filing
this Jail Appeal from Jail through Jail
Superintendent concerned.

2. Prosecution story, in brief, as
came out from First Information Report
(hereinafter referred to as 'FIR') and
factual matrix of the case is that accusedappellant and victim-Raja Ram were
detained in Central Jail, Varansi in
respective cases. On 14/15.09.2008 at
about 1:00 am (mid-night), prisonerSewak attacked victim-Rajaram with
brick.
Resultantly,
victim
sustained
serious injuries on his nose and head. He
was admitted in Jail Hospital but no
improvement
shown,
hence,
on
2 All. Sewak Vs State of U.P.
425
15.09.2008, he was referred to Pandit
Deen Dayal Upadhyay Hospital for better
treatment. On the same day, he was
further referred to Shiv Prasad Gupt,
Regional
Hospital,
Varanasi.
During
treatment, on 16-17.09.2008 at about
12:20
(midnight)
victim-Rajaram
succumbed to injuries.

3. PW-1 submitted typed written
report Ex.Ka-1 through Kundan Singh
(not examined) to Station House Officer,
Police Station Shivpur to lodge FIR
against accused-appellant. Deceased was
undergoing imprisonment under Section
302 IPC in Central Jail Varanasi. PW-1,
on
17.09.2008,
sent
another
typed
communication Ex.Ka-2 to Additional
City Magistrate, Varanasi requesting him
to conduct inquest over the dead body
deceased. Both communications were also
sent to Senior Officers concerned.

4. On the basis of written report
Ex.Ka-1,
chick
FIR,
Ex.Ka-4
was
registered by Constable of Police Station
concerned, as Case Crime No. 320 of
2008, under Section 304, IPC against
accused-appellant. Entry of case was
made in General Diary. Copy whereof is
Ex. Ka-5.

5. PW-8, Indrasan Singh, Additional
City Magistrate held inquest on the dead
body of Raja Ram, got prepared inquest
report Ex Ka-2 and other papers relating
thereto, and sent body for postmortem.

6. PW-10, Dr. Manoj Kumar Pathak
along
with
Dr.
S.D.
Verma
(not
examined) conducted autopsy over dead
body of prisoner Rajram and prepared
postmortem report Ex. Ka-11, expressing
his opinion that death was possible at
about 27 hours prior to postmortem due to
coma and brain hemorrhage on account of
serious head injuries. Doctor found
following ante-mortem injuries :-

i. Lacerated wound 1cm x 3/4cm
x scalp deep on the right side of forehead
2cm above right eyebrow and 4cm outer
to midline.

ii. Stitch wound 3cm long on the
right side of forehead 1cm above right
eyebrow and 4cm outer to midline.

iii. Stitch wound 1cm in length
present on left side of nose.

iv. Contusion 20cm x 11cm on
the right side of face and forehead.

7 . PW-9, SI Chandra Kant Singh,
commenced investigation, proceeded to
spot, recorded statement of witnesses,
visited place of incident, prepared site
plan, Ex. Ka-9, and collected blood
stained and simple earth from spot.
Thereafter, he was transferred and further
investigation was undertaken by SI R.N.
Pandey who
recorded
statement
of
witnesses of inquest and statement of
accused-appellant and after completing
entire
formalities
of
investigation,
submitted charge-sheet, Ex.Ka-10, against
the accused-appellant.

8. Case, being exclusively triable by
Court of Sessions, was committed to
Sessions
Judge,
wherefrom,
it
was
transferred to Additional District and
Sessions Judge, Court No.5, Varanasi for
disposal in accordance with law.

9. Trial Court framed charge on
16.04.2011
against
accused-appellant
under Section 304 IPC, which reads as
under :-
426 INDIAN LAW REPORTS ALLAHABAD SERIES
"vkjksi

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U;k;k/kh'k]
U;k;ky;
la[;k&5]
okjk.klh
vfHk;qDr lsod ij fuEukafdr vkjksi yxkrk gw¡%&

;g fd fnukad 14@15&9&2008 dks
le; jkf= 1%00 cts LFkku dsUnzh; dkjkxkj
okjk.klh pdz la0 4 cSjd la0 1 Fkkuk f'koiqj ftyk
okjk.klh esa vkius lkekU; mn~ns'; fd iwfrZ esa
fl)nks'k cUnh jktkjke dks tku ls ekjus dh fu;r
ls bZaV ls mlds flj ij okj dj

izk.k?kkrd pksVsa igqapk;s ftlds
ifj.kke Lo:i bZykt ds nkSjku mijksDr
jktkjke dh e`R;q gks x;hA bl izdkj vkius
,slk vijk/k dkfjr fd;k tks /kkjk 304 Hkkjrh;
n.M lafgrk ds vUrxZr n.Muh; vijk/k gS vkSj
bl U;k;ky; ds izlaKku esa gSA

vr,o ,rn~}kjk vkidks funZsf'kr
fd;k tkrk gS fd mijksDr vkjksi ds fy;s
vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sA

"I,
Narendra
Dev
Mishra,
Additional
Sessions
Judge,
Court
Number-5, Varanasi charge accused
Sewak with following charges :-

That at 1.00 o'clock in the night of
14/15-9-2008, in Barrack No.-1, Chakra No.-
4 of Central Jail, Varanasi under Police
Station- Shivpur, District- Varanasi, you, in
prosecution of your common object, attacked
on the head of convicted prisoner Rajaram by
brick with an intention to kill him and caused
fatal injuries; in consequence whereof
aforesaid Rajaram died during treatment.
Thus you have committed such offence which
is an offence punishable under Section 304 of
Indian Penal Code and it is in the cognizance
of this court.

Therefore it is hereby directed
that you be tried by this court for
aforesaid charge."
 (English
Translation
by
Court)

10. Accused-appellant pleaded not
guilty and claimed trial.

11. In order to substantiate its case,
prosecution examined as many as ten
witnesses, out of whom PW-1, 2, 8, 9, and
10 are formal in nature and PW-3, 4, 5, 6
and 7 are witness of fact.

Sr. No.
Name
of
PWs
Nature of
witness
Paper
proved
1
Suresh
Chandra
Formal
Ex.
Ka-1
and 2
2
S.N.
Dwivedi
Formal
Nil
3
Ramayan
Giri
Fact
Nil
4
Shyam
Deo
Fact
Nil
5
Putti Lal
Fact
Nil
6
Angad
Dhobi
Fact
Nil
7
Sri
Prakash
Rai
Fact
Nil
8
Indrasan
Singh
Formal
Ex.Ka2,3,4,5,6,7
and 8

9
SI
Chandra
Kant
Singh

Formal
Ex.Ka-9
and 10
10
Dr. Manoj
Kumar
Pathak
Formal
Ex.Ka-11
2 All. Sewak Vs State of U.P.
427

12. Statement, under Section 313,
was recorded by Trial Court explaining
entire evidence and other incriminating
circumstances. Accused -appellant denied
prosecution story in toto. Entire story is
said to be wrong, he claimed false
implication in the case and produced DW1 and DW-2 in defence evidence.

13. unsel for parties and analysing entire
evidence (oral and documentary) led by
prosecution, found accused guilty, convicted
and sentenced him, as stated above.

14. Sri Radhey Shyam Yadav,
learned Amicus Curiae assailed impugned
order
of
conviction
and
sentence,
advancing following submissions :-

i. Evidently, incident took place
in the mid-night in Central Jail Varnasi,
where a number prisnors were detained
but no one has come forward to support
the prosecution case.

ii. PW-1 and 2 are not the
witnesses of fact. As per prosecution
story, they were not present on the spot at
the time of incident.

iii. PW-3 to 6 are said to be
witnesses of fact but they have not
supported prosecution case and turned
hostile.

iv. PW-8, 9 and 10 are formal
witnesses.

v. DW-1 and 2 have not been
considered properly by Trial Court. It has
convicted accused-appellant on the basis
of surmises. Trial Court did not appreciate
evidence on record in right perspective
and without application of mind convicted
the accused-appellant wrongly.

vi. Impugned judgment is based
on no evidence and liable to be set aside.

15.

Learned
AGA
opposed
submissions advanced by learned Amicus
Curiae and submitted that accusedappellant is named in FIR. Admittedly,
accused and deceased were detained in
the same Barack and quarrel started
between them, which resulted in death of
victim. It is further submitted by him that
Trial Court has rightly convicted accusedappellant.

16. Although time, date, place,
nature of injuries found on the person of
deceased and caused death, as stated by
prosecution, could not be disputed from
the side of accused but according to
learned counsel for accused-appellant, he
is not responsible for causing death of
victim-Raja Ram. Even otherwise, from
the evidence of prosecution, time, date
place
and
death
of
victim
stood
established.

17. In the present case, only
question remains for consideration is
"Whether
accused-appellant-Sewak
is
responsible for causing death of victimRaja Ram or not?" and " Whenter Trial
Court rightly convicted him or not?"

18. Now, we proceed to consider
evidence of prosecution.

19. PW-1 Suresh Chandra, Senior
Superintendent of Central Jail, Varanasi
deposed
that
in
the
mid-night
of
14/15.09.2008, accused-appellant-Sewak
assaulted Raja Ram with brick, due to
which, he sustained injureis on his nose
and head. Victim was admitted in Jail
Hospital, where from, he was referred to
Deen Dayal Upadhyay Hospital for better
428 INDIAN LAW REPORTS ALLAHABAD SERIES
treatment. On the same date, victim was
further referred to Shiv Prasad Gupt,
Regional Hospital, Varanasi, where he
underwent treatment. During treatment,
victim-Raja Ram breathed last in the
intervening night of 16/17.09.2008. He
further
deposed
that
on
receiving
information about death of victim, he
submitted a written report Ex.Ka-1
through Kundan Singh, Deputy Jailer to
Police Station concerned. He further
deposed that deceased Raja Ram, a
convict under Section 302 IPC was
transferred from District Jail, Gonda. In
cross examination, at page No. 23 of
Paper-book, witness admitted that he had
received
telephonic
information
of
incident, through Kundan Singh, Deputy
Jailer at 1:45 am. When he received
information, he visited spot and saw that
there was injury on neck and forehead of
victim and it was bleeding. Witness
further deposed that after death of Raja
Ram,
during
investigation,
accusedappellant told him that Raja Ram used to
abuse him continuously, therefore, he
attacked him with brick. This statement of
PW-1 appears to be a development
because it has come into light about three
years after incident and it finds no place
in Ex.Ka-1.

20. PW-2, S.N. Dwivedi, deposed
that in 2008, he was posted as Jailer in
Central Jail, Varanasi. He was on leave on
the day of incident. When he returned
from leave, he came to know about
incident.

21. PW-3, Ramayan Giri, deposed
that on the fateful day, he was detained in
Central Jail. He was sleeping on his bed
No. 58 in the night of incident. At about
1:00 am, he woke up on hearing noise and
saw that victim-Raja Ram was lying in
injured position and many persons of
Barack were present. He did not see
accused-appellant-Sewak
assaulting
victim-Raja Ram. Witness was declared
hostile on the request of prosecution and
he has been cross-examined by State but
nothing material could be brought so as to
disbelieve his statement upon oath in
examination-in-chief.

22. PW-4, Shyam Deo, deposed that
he was sleeping on his bed No. 52 in the
intervening night of 14/15.09.2008 and
detained since 2006. In same Barack,
accused-Sewak and victim-Raja Ram
(both convict) were also present. At 1:00
am in night, he woke up on hearing noise
and saw that there was a crowed in
Barrack
and
victim-Raja
Ram
was
injured. He did not see anybody attacking
him. Witness was declared hostile on the
request
of
prosecution
and
crossexamined by State but nothing material
could be brought so as to disbelieve his
statement upon oath in examination-inchief.

23. PW-5, Putti Lal, deposed that he
was in Central Jail since 2005. AccusedSewak and victim-Raja Ram were detained
in same Barrack. At about 1:00 pm, in
intervening night of 14/15.09.2008, he was
sleeping in Barrack. On hearing noise, he
saw there were many persons in Barrack and
victim-Raja Ram was lying in injured
position. He did not see anybody attacking
Raja Ram. He did not know how Raja Ram
was injured. Witness was declared hostile on
the request of prosecution and crossexamined by State but nothing material could
be brought so as to disbelieve his statement
upon oath in examination-in-chief.

24. PW-6, Angad Dhobi, deposed
that
in
the
intervening
night
of
2 All. Sewak Vs State of U.P.
429
14/15.09.2008,
he
was
deputed
to
supervise circle No.4. He was also a
convict in Jail. At about 1:00 am, in the
intervening night, he went toilet, when he
heard noise. He came from toilet and saw
that victim-Raja Ram was injured and
mouth was bleeding. He did not see
anybody assaulting him. Witness was
declared hostile on the request of
prosecution and cross-examined by State
but nothing material could be brought so
as to disbelieve his statement upon oath in
examination-in-chief.

25. PW-7, Prakash Rai, deposed that
he was detained as convict in Central Jail,
Varanasi in September 2008 and deputed
as Chaukidar as convict. He did not see
anybody assaulting victim-Raja Ram who
has been injured in incident. Witness was
declared hostile on the request of
prosecution and cross-examined by State
but nothing material could be brought so
as to disbelieve his statement upon oath in
examination-in-chief.

26.

PW-8,
Indrasan
Singh,
Additional City Magistrate, is an officer
who held inquest over dead body of
deceased-Raja Ram. Witness prepared
inquest report Ex.Ka-2 and relevant
papers relating thereto.

27. PW-9, SI Chandra Kant Singh,
Investigating Officer of case conducted
investigation and proved charge-sheet.
PW-10,
Dr.
Manoj
Kumar
Pathak,
conducted autopsy of dead body of
deceased-Raja
Ram
and
prepared
postmortem report, Ex.Ka-11.

28. DW-1, Loha Singh, and DW-2,
Sahab Patel, both convict and detained in
Central Jail, Varanasi, at the time of
incident, established that victim-Raja
Ram and accused-appellant-Sewak were
good friends. They had good relations
among them. They further deposed that, at
about 1:00 am, in the intervening night,
they woke up on hearing noise and saw
that some bricks fell down from damaged
roof, where Raja Ram slept and he
sustained injuries on his nose, head and
mouth. These witnesses withstood lengthy
cross-examination but unblemished.

29. PW-1 and PW-2, although,
officers of Jail, did not speak anything
against
accused-appellant
in
their
deposition. They were not present on the
spot, at the time of incident. PW-8 to 10
are formal witnesses. PW-3 to 7, who
were said to be present on the spot, as eye
witnesses but none of them supported
prosecution case. They did not say single
word in their deposition against accusedappellant to implicate him. DW-1 and 2
disclosed a separate story that due to
dilapidated condition of Barrack, incident
happened. There is nothing on record so
as to disbelieve their statements. There is
no iota of evidence against accusedappellant to connect him with present
crime or holding him guilty.

30. Prosecution has brought this
case before Court, as a case of direct
evidence, but Trial Court, on the failure of
prosecution case as direct evidence,
turned it as a case of circumstantial
evidence and considering the case of
circumstantial evidence and ignoring all
principles laid down by Hon'ble Courts
convicted
and
sentenced
accusedappellant on the basis of surmises flouting
all judicial principles.

31. We have deeply considered
entire evidence available on file to
connect accused-appellant with present
430 INDIAN LAW REPORTS ALLAHABAD SERIES
crime but find no iota of evidence to hold
accused-appellant guilty.

32. We are surprised as to how
without any incriminating circumstances
and evidence, Trial Court has sentenced
accused-appellant in a serious offence.
Sentencing of accused-appellant in this
manner erodes a public faith on judicial
system.

33. Considering the entire facts and
circumstances and evidence led by the
prosecution, in entirety, we do not find
any cogent and convincing evidence
against accused-appellant to connect him
with present crime and, in our considered
opinion, accused-appellant is entitled to
be acquitted.

34. Appeal is, accordingly, allowed.
Impugned judgment and order dated
07.12.2011 passed, in Sessions Trial No.
27 of 2009 (State v. Sewak, Case Crime
No. 320 of 2008), under Section 304 IPC,
Police Station Shivpur, District Varanasi,
is hereby set aside. Appellant is acquitted
of charges levelled against him. He is in
jail and shall be released forthwith, if not
wanted in any other case.

35. Keeping in view provisions of
Section 437-A Cr.P.C., appellant is
directed to furnish a personal bond and
two sureties before Trial Court to its
satisfaction, which shall be effective for a
period of six months, along with an
undertaking that in event of filing of
Special Leave Petition against instant
judgment or for grant of leave, appellant
on receipt of notice thereof shall appear
before Hon'ble Supreme Court.

36. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court concerned
for compliance and further necessary
action.

37. Before parting, we provide that
Sri Radhey Shyam Yadav, Amicus Curiae
for appellant in present Jail Appeal, shall
be paid counsel's fee as Rs. 11,500/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 430

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Jail Appeal No. 5871 of 2003
&
Criminal Appeal No. 5422 of 2003

Devendra Kumar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Mohd. Afzal (A.C.)

Counsel for the Opposite Party:
A.G.A., Sri Rishi Chadha

A. Indian Evidence Act, 1872 - Sections
118 and 134 - Neither number of witness
required to prove a fact nor evidence of a
witness can be rejected only on the
ground of his relationship with the
victim. The whole prosecution case can