# Suresh v. State of U.P

- **Citation:** (2022) 12 ILRA 1025
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Criminal Appeal No. 3681 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-v-state-of-u-p-47961
- **Pages:** 4

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 391- Additional Evidence-
Evidence of P.W.2 before the Juvenile
Justice
Board
by
way
of
additional
evidence under Section 391 of Cr.P.C. in
which she has categorically denied that
she had seen any of the accused killing
her husband, Ashok Kumar. She has
further stated that she was at home when
the incident occurred and people of the
village had informed her that her husband
was killed by some other people.

Where the prime witness of the prosecution has
not supported the case of the prosecution,
having given a contradictory version, before the
Juvenile Justice Board in the separated trial of
the co-accused then considering the said
evidence the appellant held to be entitled to be
acquitted.

Indian Evidence Act, 1872- Section 3-
Section 27- Neither the driver of the bus
nor any passenger was examined. The
recoveries were also not at the instance of
accused-appellant. P.W.6, who had drawn
the site plan had not shown that the
accused-appellant
was
carrying
any
weapon with him.

Where the prosecution has withheld relevant
witnesses and neither the appellant was shown
to be armed and nor any incriminating
recoveries were effected upon his instance, then
the implication of the appellant held to be false.

Criminal Appeal allowed. (E-3) (Para
17.18)

Case law/ Judgements cited:-

## Text

12 All. Suresh Vs. State of U.P.
1025
 weeks from the date of release from jail.
The jail authority shall see that the accusedappellant is lodged in the jail to reincarcerate for the default period if fine is
not paid after she is released.

25. This Court is thankful to Sri N.K.
Srivastava for ably assisting this Court.
----------
(2022) 12 ILRA 1025
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3681 of 2013

Suresh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shashwat Shukla, Sri Mohammad Zakir

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Code of Criminal Procedure,
1973- Section 391- Additional Evidence-
Evidence of P.W.2 before the Juvenile
Justice
Board
by
way
of
additional
evidence under Section 391 of Cr.P.C. in
which she has categorically denied that
she had seen any of the accused killing
her husband, Ashok Kumar. She has
further stated that she was at home when
the incident occurred and people of the
village had informed her that her husband
was killed by some other people.

Where the prime witness of the prosecution has
not supported the case of the prosecution,
having given a contradictory version, before the
Juvenile Justice Board in the separated trial of
the co-accused then considering the said
evidence the appellant held to be entitled to be
acquitted.

Indian Evidence Act, 1872- Section 3-
Section 27- Neither the driver of the bus
nor any passenger was examined. The
recoveries were also not at the instance of
accused-appellant. P.W.6, who had drawn
the site plan had not shown that the
accused-appellant
was
carrying
any
weapon with him.

Where the prosecution has withheld relevant
witnesses and neither the appellant was shown
to be armed and nor any incriminating
recoveries were effected upon his instance, then
the implication of the appellant held to be false.

Criminal Appeal allowed. (E-3) (Para
17.18)

Case law/ Judgements cited:-

1. Jalpat Rai Vs St. of Har., (2011) 14 SCC 208

2. Badam Singh Vs St. of M.P. (2003) 12 SCC 792

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J. & Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the record.

2. This appeal challenges the
judgment and order dated 20.6.2013 passed
by Additional Sessions Judge, Court No.8
in Sessions Trial No.333 of 2006 (State vs.
Kaluwa and others) wherein the learned
Sessions
Judge
convicted
accusedappellant, Suresh and accused-Kaluwa
under Section 302 read with Section 34 of
Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and sentenced them to
imprisonment
for
life
with
fine
of
Rs.10,000/- and, in case of default in
payment of fine, further to under six
months' simple imprisonment.
1026 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Three accused namely Kaluwa,
Veerendra and Suresh tried for commission of
offence under Section 302 read with 34 of IPC.
Accused-Kaluwa
died
on
the
date
of
pronouncement of judgment when he felt that his
sister had deposed against him. Accusedappellant, Virendra was declared juvenile and his
trial was separated. We are concerned here with
the accused-appellant, Suresh, who has been
assigned the role of aiding the main assailant.

4. Brief facts as culled out from the
record are that an F.I.R. was registered on
17.11.2005 at about 7.25 p.m. in the night for
commission of offence under Section 302 read
with Section 34 IPC on the very same day. The
said information was given by one Durga
Prasad (informant/P.W.1) conveying that his
son-Ashok Kumar was done to death by three
people namely Kalua, Virendra & Suresh. The
occurrence alleged to have taken place on
17.11.2005. It was conveyed by the informant
that on that day, he along with his son's wife
(P.W.2) had gone for taking medicine for his
grandson and his son-Ashok Kumar had also
gone to his village Sekhpur Gadhwa from
Aurangabad for some domestic purpose. It
was further alleged that when the informant
and his daughter-in-law were returning after
taking medicines for grandson of informant,
they saw that appellant along with two other
persons namely Kalua and Virendra who were
armed with Balkati (a sharp-edged weapon)
were pushing the deceased. On seeing this,
P.W.1 asked for to stop the bus. The bus halted
and they came down. They saw that accusedKalua inflicted injuries to deceased-Ashok
Kumar by hitting Balkati on his neck. After
seeing the informant and P.W.2, the accused
threatened them and ran away. It was also
averred that after dropping his daughter-in-law
he had come for lodging the F.I.R.

5. After lodging of the F.I.R, the
investigation was moved into motion. The
police arrested all three accused and
remand was asked for. On pointing out of
accused-Kalua and Virendra, Balkati (a
sharp-edged weapon) was recovered. The
Investigating
Officer,
after
taking
statements of witnesses, submitted chargesheet against the accused-appellant under
Section 302 of IPC.

6. The accused was committed to the
Court of Sessions as the case was triable by
the Court of Session. The learned Sessions
Judge framed charges on the accused. The
accused pleaded not guilty and wanted to
be tried. Accused-appellant, Virendra was
declared juvenile, hence, his trial was
separated.

7. So as to bring home the charge, the
prosecution has examined 7 witnesses who
are as under :

1
Durga Prasad
PW1
2
Smt. Sunita
PW2
3
Dr. S.K. Rastogi
PW3
4
Mange Ram
PW4
5
Satya Pal Singh
PW5
6
Sansar Singh Rathi
PW6
7
Amrit Singh
PW7

8. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.4
2
Written Report
Ex.Ka.1
3
Recovery memo of
two Balkati
Ex. Ka. 3
4
Postmortem Report
Ex. Ka.2.
5
Panchayatnama
Ex. Ka.6
12 All. Suresh Vs. State of U.P.
1027
6
Charge-sheet
Ex. Ka. 15
7
Site Plan with Index Ex. Ka.14

9. The Court also examined Deep
Chand Sharma as C.W.1. The learned
Sessions
Judge,
after
recording
the
statement of the accused under section 313
of Cr.P.C., and hearing arguments on behalf
of prosecution and the defence, the learned
Sessions Judge convicted the accusedappellant as mentioned above.

10. Learned counsel for the appellant
has submitted that conviction of the
accused-appellant is bad in the eye of law
as there was vast contradictions in the
testimony of P.W.1 and P.W.2 on various
points which clearly indicates that they are
not an eye witness of the alleged incident
but they have falsely implicated the
appellant being an educated member in the
family as, if he has not been implicated, he
might have started pairvi of other coaccused who were real brothers.

11. It is further submitted that coaccused, Kalua and Virendra, who were the
real brothers had cordial relationship with
his sister i.e. P.W.2 and deceased-Ashok
Kumar as three years were elapsed after
their marriage and there was one child out
of their wedlock of P.W.2 (sister of
accused). It is therefore submitted that the
accused
more
particularly
accusedappellant had no intention to kill the
deceased and he was falsely implicated.

12. It is submitted by learned counsel
for the appellant that though the offence is
alleged to have taken place in the broad
daylight, neither any independent witness
nor the family members of the deceased
were present near the dead body of the
deceased. It is submitted that though P.W.2
tried to fill this gap, but she would not be
able to depose as to who and how her inlaws were informed about the said incident
and it creates serious doubt regarding the
presence of P.W.1 and P.W.2 at the place of
occurrence.

13. In support of his arguments, he
has relied on the decisions in Jalpat Rai v.
State of Haryana, (2011) 14 SCC 208 &
Badam Singh v. State of M.P. (2003) 12
SCC 792 and has contended that the
conviction of the accused-appellant is bad
and requires to be set aside.

14. As against this, learned A.G.A. for
the State has submitted that the learned
Sessions Judge has rightly convicted the
accused-appellant as P.W.1 and P.W. 2 had
seen the accused-appellant along with coaccused
committing
the
murder
of
deceased.

15. While going through the evidence,
one aspect is very clear that deceasedAshok Kumar himself had criminal history
which fact has been admitted by the
prosecution also but accused-appellant,
Suresh, did not have any criminal history.
Weapons were never recovered at the
behest of accused-appellant, Suresh and he
was not assigned any role of having any
weapon in his hand.

16. The accused-appellant, has
already undergone more than 11 years' of
incarceration and more than 14 years' of
incarceration with remission. He has no
criminal antecedent. The present case stems
out of deteriorated relationship between
P.W.2's in-laws and his maternal family.
Co-accused, Kalua and Virendra are real
brothers of P.W.2. The accused-appellant is
her cousin and had nothing to do with the
family affairs of his aunt.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The appellant has brought on
record the evidence of P.W.2 before the
Juvenile Justice Board by way of additional
evidence under Section 391 of Cr.P.C. in
which she has categorically denied that she
had seen any of the accused killing her
husband, Ashok Kumar. She has further
stated that she was at home when the
incident occurred and people of the village
had informed her that her husband was
killed by some other people.

18. This evidence is enough for us to
come to the conclusion that the accusedSuresh has been wrongly roped into this case
because of earlier enmity though it is
submitted that accident occurred while the bus
was passing by, but, neither the driver of the
bus nor any passenger was examined. The
recoveries were also not at the instance of
accused-appellant. P.W.6, Sansar Singh Rathi
who had drawn the site plan had not shown
that the accused-appellant was carrying any
weapon with him.

19. Hence, while going through the factual
data and the evidence produced by way of
application under Section 391 of Cr.P.C., we are
convinced that the conviction of accusedappellant is liable to be set aside.

20. In view of the above, accusedappellant, Suresh, is acquitted of the offences
alleged against him. The order of conviction
& sentence passed by the learned Sessions
Judge is set aside. The accused-appellant,
Suresh, be set free forthwith if not warranted
in any other offence.

21. Record and proceedings be sent
back to the Trial Court forthwith.

22. This appeal is, accordingly,
allowed.
----------
(2022) 12 ILRA 1028
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 5705 of 2013
connected with
Criminal Appeals No. 324 of 2014 & 362 of 2014

Tayyab & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Salman Ahmad, Sri Atharva Dixit, Sri Rajiv
Lochan Shukla, Sri Vijay Kumar Dwivedi

Counsel for the Respondent:
Govt. Advocate, Sri Amit Kr. Srivastava, Sri
Shams Tabrez, Sri Abhisht Jaiswal, Sri Atharva
Dixit, Sri Manish Tiwary(Sr. Advocate)

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is not the obligation of the
defence to prove its version beyond
reasonable doubt, rather, the limited
requirement on its part is to probablise it.
It is the prosecution case which is on trial
and not the defence-The injuries on three
sisters
Km.
Fatima,
Shabana
and
Tabassum as also the statement of
Investigating Officer that he had heard
that the ladies in the accused house also
sustained injuries coupled with fact that
they were medically examined on the
same night at about 11.00 pm and their
injuries have been proved by PW-3
clearly supports the defence case. The
statement of DW-1 that she caused a
knife blow from behind on Minzar while
he was trying to grab Shabana also finds
corroboration from the injuries shown on
Minzar i.e. in the back lumbar area. We
are, therefore, of the view that the
defence version has been successfully
probalised. The prosecution has also
failed to explain the injuries suffered by