# State of U.P v. Indu Uniyal & Anr

- **Citation:** (2020) 1 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-22
- **Case number:** Government Appeal No. 617 of 1994
- **Bench:** Arvind Kumar Mishra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-indu-uniyal-anr-45684
- **Pages:** 4

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 378(3) & Indian Penal Code,
1860 - Sections 452, 307, 307 r/w 34 -
appeal preferred by the state against
order of acquittal- material contradictionspecific identification of weapon did not
come out-finding of acquittal in favour of
the respondents is affirmed or view taken
by the trial court is justified-grant of
leave to appeal is refused. (Para 21, 22 &
23)

The injured was a literate man and was head
of an educational institution and he, as per his
cross- examination, is very much acquainted
with the nature and identity of 'gun' and
'revolver' and he categorically stated in his
testimony that he can identify these weapons,
therefore it means that the weapon used can
be specifically identified by him. However, that
specific identification has not come out
establishing its nature and specification. The
graver aspect of the case is that there is
material contradiction on the point as to who
opened the fire and, on this point, admittedly
the testimony of the prosecution witnesses is
vacillating and is not certain. (Para 20)

Government Appeal dismissed. (E-6)

## Text

350 INDIAN LAW REPORTS ALLAHABAD SERIES
interfering with the findings recorded
therein.

21. The appeal is devoid of merits
and is liable to be dismissed with costs
throughout.

22. The appeal is accordingly
dismissed with costs throughout. The
impugned judgement and decree are
affirmed.

23. Interim order, if any, stands
vacated.

24. Let the lower court record be sent
back to court below alongwith the copy of
the judgement, after preparation of decree
----------
(2020)1ILR350

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Government Appeal No. 617 of 1994

State of U.P. ...Appellant
Versus
Indu Uniyal & Anr. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Opposite Parties:
Sri Pankaj Srivastava

A. Code of Criminal Procedure, 1973 -
Section 378(3) & Indian Penal Code,
1860 - Sections 452, 307, 307 r/w 34 -
appeal preferred by the state against
order of acquittal- material contradictionspecific identification of weapon did not
come out-finding of acquittal in favour of
the respondents is affirmed or view taken
by the trial court is justified-grant of
leave to appeal is refused. (Para 21, 22 &
23)

The injured was a literate man and was head
of an educational institution and he, as per his
cross- examination, is very much acquainted
with the nature and identity of 'gun' and
'revolver' and he categorically stated in his
testimony that he can identify these weapons,
therefore it means that the weapon used can
be specifically identified by him. However, that
specific identification has not come out
establishing its nature and specification. The
graver aspect of the case is that there is
material contradiction on the point as to who
opened the fire and, on this point, admittedly
the testimony of the prosecution witnesses is
vacillating and is not certain. (Para 20)

Government Appeal dismissed. (E-6)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J. & Hon'ble Gautam
Chowdhary, J.)

(1) Report of the C.J.M.- Saharanpur dated
07.10.2013 reflects that accused- respondent
no.1- George Rajesh- died on 15.03.2018.

(2) In view of the report of C.J.M.-
Saharanpur dated 07.10.2013, this appeal
stands abated against accused- respondent
no.1- George Rajesh and is dismissed.

(3) Now, this appeal relates to the
surviving respondent no.1- Indu Unival-
for adjudication.

(4) Heard learned A.G.As for the
State- appellant, Sri Pankaj Srivastava,
learned counsel for the respondents,
perused the impugned judgement of
acquittal and record of the appeal.

(5) The instant Government Appeal
has been preferred by the State of U.P.
1 All. State of U.P. Vs. Indu Uniyal & Anr.
351
against judgement and order of acquittal
dated 25.1.1994 passed by III Additional
Sessions Judge, Saharanpur in Sessions
Trial No.253 of 1987, under Sections 452,
307, 307 read with 34 I.P.C., police
station- Sadar Bazar, district- Saharanpur.
By the impugned judgement and order,
trial court acquitted both the accused
persons under the aforesaid sections of
Indian Penal Code.

(6) Relevant facts as discernible from
the record giving rise to this appeal appear
to be that- Father M.A. Joseph- Principal
in
Saint
Merry
Academy
Mission
Compound, Saharanpur was sitting in front
of his table within the campus of Sofia
Hindi Medium School (which is within the
jurisdiction of Police Station- Sadar Bazar,
district- Saharanpur). The electric light
was illuminated in the campus of school
and the room also. At that point of time,
door of the room where the Father M.A.
Joseph was sitting, were opened by
accused- George Rajesh and Indu Unial-
and suddenly accused- George Rajesh
opened fire on him (Father M.A. Joseph),
as a result of which, he sustained injuries
and both the accused are escaped away
from the scene.

(7) On hearing the noise of fire and
scream of one unknown man, Father
Joseph Puthath came out from his room
and then he saw the injured M.A. Joseph
who was seeped with blood and he was
saying to him (Father Joseph Puthath) that
fire was opened upon him by the accused.
Thereafter, Father M.A. Joseph was taken
to the District Hospital, Saharanpur by
Father Joseph Puthath on taxi. In the
hospital, the injured informed him that fire
was made upon him by George Rajesh and
accused Indu Uniyal was also present on
the spot.

(8)
On
the
written
report
of
informant- Father Joseph Puthath, the case
was registered at police station- Sadar
Bazar, District- Saharanpur on 2.9.1987 at
9.30 p.m. under Sections 452, 307 of
Indian Penal Code.

(9)
Thereafter
the
Investigating
Officer carried out the investigation and
recorded the statement of informant-
Joseph
Puthath,
witnesses-
Martin
Stephen, Father M.A. Joseph and others
and
after
completing
all
necessary
formalities
filed
charge-sheet
under
Sections 307, 452 IPC.

(10) Thereafter during course of
hearing on the point of charge, the court
concerned found the case covered under
Section 452, 307/34 IPC- for accused Indu
Uniyal and under Section 307 IPC- for
accused George Rajesh, therefore, the
court below committed the case to the
Sessions Court, whereupon, accused were
heard on the point of charge and charges
under Sections 452, 307/34 IPC were
framed against aforesaid accused persons,
who denied charges and opted for trial.

(11) In order to prove its case,
prosecution produced informant- Joseph
Puthath (P.W.1), witness Martin Stephan
(P.W.2), injured Father M.A. Joseph
(P.W.3), I.O. Devraj Singh Bisnoi (P.W.4),
S.I. Dr. R.K. Tayal (P.W.5) and R.K.
Kashyap
(P.W.6).
All
the
aforesaid
prosecution witnesses are witnesses of
fact/formal
witnesses
and
the
eyewitnesses.

(12) Thereafter, evidence for the
prosecution was closed and the statement
of accused persons were recorded under
Section 313 Cr.P.C., wherein, it was
submitted that they have been falsely
352 INDIAN LAW REPORTS ALLAHABAD SERIES
implicated in this case. They categorically
stated in his deposition that at the time of
incident, they are in the Mussorrie and
they have been challaned in the M.V. Act.

(13) In turn, five witnesses- Smt.
Shanti Devi (D.W.1), Baburam (D.W.2),
Rakesh (D.W.3), Girdhar Gopal (D.W.4),
Kunwar Singh (D.W.5) were produced on
the behalf of the defence as defence
witnesses.

(14) Thereafter, the evidence for
defence was closed and after considering
the merit of the case, charges were found
not proved beyond reasonable doubt.
Resultantly, the trial court returned finding
of acquittal against the accused.
(15)
Consequently,
this
Government
Appeal.

(16) The learned counsel for the
appellant- State- submits that learned trial
court has not properly appreciated the
evidence for the prosecution and has
decided the case only on the basis of
conjectures and surmises. He also submits
that impugned judgement and order of
acquittal of the accused-respondents is not
sustainable in the eyes of law and as such
the same is liable to be set-aside by this
Court.

(17) The contention of learned
counsel for the respondents is specific to
the ambit that in this case trivial and minor
contradictions alone prompted the trial
Judge to record specific finding that the
injured Father M.A. Joseph was not in a
position to identify the weapon used by the
appellants at the time of the occurrence
and who was the assailant, was also not
ascertained by the Father M.A. Joseph and
under prevailing facts and circumstances,
the attack was infact sudden. How can this
finding be sustained in view of specific
testimony of Father M.A. Joseph- the
injured that he takes and understands word
'gun' to be applicable to both 'revolver' as
well as 'gun' and it was never tried to be
differentiated from 'revolver'. In general
parlance, the 'gun' indicates both- the
'revolver' and the 'gun'. Therefore, the
difference cannot be substantiated by
claiming that the weapon used in the
assault was not properly identified.

(18) The moot point involved for
consideration in this appeal is whether the
finding of acquittal recorded by the trial
court is erroneous and perverse, as alleged
by the appellant- State?

(19) We have carefully considered the
aforesaid submissions of both the sides as
well
as
perused
the
impugned
judgement/order of acquittal.

(20) We upon careful consideration
cannot disagree with the finding of acquittal
recorded
in
favour
of
the
surviving
respondent, for specific reasons that the
injured was a literate man and was head of an
educational institution and he, as per his
cross- examination, is very much acquainted
with the nature and identity of 'gun' and
'revolver' and he categorically stated in his
testimony that he can identify these weapons,
therefore it means that the weapon used can
be specifically identified by him. However,
that specific identification has not come out
establishing its nature and specification. The
graver aspect of the case is that there is
material contradiction on the point as to who
opened the fire and on this point, admittedly
the testimony of the prosecution witnesses is
vacillating and is not certain.

(21) For the reasons aforesaid, we
have no doubt in affirming the finding of
1 All. Shahid Quraishi @ Maimber Vs. State of U.P. & Ors.
353
acquittal recorded in favour of the
respondents.

(22) It is established law that in case
of acquittal, the finding recorded, if found
to be based on material on record, and the
view taken by the trial court is justified
although the alternate view is also
available, then the view that favours the
accused is to be preferred by the Appellate
Court. It being so, we have no hesitation in
observing that the view adopted by the
trial court in recording finding of acquittal
is based on material on record.

(23) Consequently, this Government
Appeal lacks merit and the same is dismissed.

(24) The leave to appeal is hereby refused.
----------
(2020)1ILR 353

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 831 OF 2019
with
Habeas Corpus Writ Petition No. 840 of 2019

Shahid Quraishi @ Maimber
 ...Petitioner(In Detention)
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar

Counsel for the Respondents:
A.G.A., Sri Deepak Mishra, Sri Thakur Azad
Singh, Sri Prahlad Kumar Khare

A. National Security Act, 1980 - Section
3(2) & (3) - Detention - Satisfaction -
Section
3(2)
enables
the
appropriate
government to detain any person if it is
satisfied that with a view to prevent such a
person
from
acting
in
any
manner
prejudicial to or from acting in any manner
prejudicial to the maintenance of supplies
and services essential to the community, it
is necessary to do so. (Para 5)

B. Constitution of India - Article 226 -
Writ of Habeas Corpus - Judicial Review -
Scope of Satisfaction under National
Security Act, 1980 - Satisfaction recorded
by the detaining authority in respect of
the breach of public order is subjective,
but the same is to be based on relevant
materials - Once relevant materials are
existing, the courts are refrained from
examining the legality / propriety of the
same - Scope of judicial review in such
matters is only confined to examining the
existence of relevant materials upon
which a person is detained for breaching
of public order - Detaining authority and
the State Government displayed absolute
non-application of mind while issuing and
approving the order of detention- Held,
detention order cannot be sustained, is
liable to be set aside. (Para 6 & 14)

C. National Security Act, 1980 - Cow
Slaughtering - Slaughtering and consumption
of beef per se, cannot attract the provisions
of the National Security Act, 1980, it would be
an offence under the provisions of the Cow
Slaughter Act. (Para 12)

Habeas Corpus Writ Petition allowed. (E-1)

(Delivered by Hon'ble Pankaj Naqvi, J.)

Heard Shri Sunil Kumar, learned
counsel for the petitioners, Shri Thakur
Azad Singh and Sri Prahlad Kumar Khare,
for the Union of India and Shri Deepak
Mishra, the learned A.G.A.

These habeas corpus writ petitions
have
been
filed by
the
petitioners
challenging
their
detentions
dated