# Upendra @ Balveer v. State of U.P

- **Citation:** (2024) 10 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-25
- **Case number:** Criminal Appeal No. 60 of 2011
- **Bench:** Siddharth, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-balveer-v-state-of-u-p-51188
- **Pages:** 15

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 316 & 302 - Punishment for
murder - Life imprisonment - Indian
Evidence Act, 1872 - Section 106 - The
Code of Criminal Procedure, 1973
-
Section 313 - As per F.I.R, deceased was
married to appellant - Dowry was given in
marriage, but appellant, his father, and
mother were not satisfied and they send
deceased back to her parental home -
Informant lacks money to fulfil their
excessive demand - On 20.05.2009, they
killed his daughter - F.I.R. lodged against
them on 21.05.2009 - Charges were
framed. (Para 3, 4)

Prosecution failed to prove charges u/s
498-A / 304-B and 3⁄4 D.P. Act, the trial
court convicted appellant because two
months old foetus was found inside womb
of deceased - Trial court convicted him on
premise that since deceased was residing
with appellant, he was required to prove
incident. (Para 20)

Court observed that prosecution has not
brought forward any evidence which could
establish that at time of occurrence,
appellant was inside house - Appellant
was not given opportunity to defend
himself against charge for which he was
convicted. (Para 23, 25, 26)

None of prosecution witnesses of fact
supported prosecution case - Admitted it
to be case of accident - P.W.-1, admitted
that accused were so poor that demand of
Rs. 1 lakh, one gold chain and motorcycle
was not for them to make - Trial court
convicted appellant on wrong appreciation
of relevant law, but rightly acquitted his
father and mother of all charges -
Impugned order set aside. (Para 28)

Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,836 of 48,314. This is a partial read: ask again with offset=39836 for what follows._

10 All. Upendra @ Balveer Vs. State of U.P.
471
46. Let original record be returned
to learned counsel for the State appellants.
----------
(2024) 10 ILRA 471
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 60 of 2011

Upendra @ Balveer ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ajay Sengar, S.P. Lal

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 316 & 302 - Punishment for
murder - Life imprisonment - Indian
Evidence Act, 1872 - Section 106 - The
Code of Criminal Procedure, 1973
-
Section 313 - As per F.I.R, deceased was
married to appellant - Dowry was given in
marriage, but appellant, his father, and
mother were not satisfied and they send
deceased back to her parental home -
Informant lacks money to fulfil their
excessive demand - On 20.05.2009, they
killed his daughter - F.I.R. lodged against
them on 21.05.2009 - Charges were
framed. (Para 3, 4)

Prosecution failed to prove charges u/s
498-A / 304-B and 3⁄4 D.P. Act, the trial
court convicted appellant because two
months old foetus was found inside womb
of deceased - Trial court convicted him on
premise that since deceased was residing
with appellant, he was required to prove
incident. (Para 20)

Court observed that prosecution has not
brought forward any evidence which could
establish that at time of occurrence,
appellant was inside house - Appellant
was not given opportunity to defend
himself against charge for which he was
convicted. (Para 23, 25, 26)

None of prosecution witnesses of fact
supported prosecution case - Admitted it
to be case of accident - P.W.-1, admitted
that accused were so poor that demand of
Rs. 1 lakh, one gold chain and motorcycle
was not for them to make - Trial court
convicted appellant on wrong appreciation
of relevant law, but rightly acquitted his
father and mother of all charges -
Impugned order set aside. (Para 28)

Appeal allowed. (E-13)

List of Cases cited:

1. Santosh Vs St. of U.P. 2021 0 Supreme (All)
173

2.
Ramayan (Appellant) Vs St.
of U.P.,
(Respondent), Jail Appeal No. 6157 of 2016
(Para 16 to 30)

3.
Babloo
Chauhan
@
Dabloo
Vs
St.
Government of NCT 247 (2018) DLT 31

4. Maneka Gandhi Vs U.O.I.AIR 1978 SC 597

5. S Nambi Narayanan Vs Siby Mathews &
ors.AIR 2018 SC 5112

6. Rudul Shah Vs St. of Bihar 1983 AIR 1086

7. Bhim Singh Vs St. of J&K AIR 1986 SC 494

8. Nilabati Behera Vs St. of Orissa 1993 AIR
1960

9. Consumer Education and Research Center &
ors.Vs U.O.I.1995 AIR 922

10. Sulemenbhai Ajmeri & ors. Vs St. of Gujarat,
2014 SCC 716

11. Virendra Singh & ors.Vs St. of U.P & ors.,
Criminal Appeal No. 6367 of 2010, decided on
12.09.2024
472 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Siddharth, J.)

1. Heard Shri Amar Singh Kashyap,
learned counsel for the appellant, Ms.
Manju Thakur, learned A.G.A.-I for the
State and perused the material on record.

2. The criminal appeal has been
filed against the judgment and order dated
21.12.2010, passed by Additional Sessions
Judge IIIrd, Jalaun, at Orai, in Sessions
Trial No. 128 of 2009, State of U.P. Vs.
Upendra @ Balveer and Others. By the said
judgment and order, the appellant has been
convicted under section 316 IPC for the
period of five years rigorous imprisonment
alongwith a fine of Rs. 1,000/-. The
appellant has been further convicted under
section 302 IPC for life imprisonment
alongwith fine of Rs. 1,000/-; in default the
payment of such fine, for an additional
imprisonment of two months.

3. The prosecution case as per
F.I.R. is that two years ago, deceased,
Deepika, was married to appellant, Balveer,
as per Hindu marriage rites. Dowry was
given in marriage by the informant as per
his capacity, but the husband of deceased,
appellant, Balveer, his father, Raj Bahadur
and Mother, Smt. Ramkali, were not
satisfied with the dowry received in
marriage. After
marriage,
they
were
demanding one motorcycle, a gold chain
and Rs. 1 lakh and send the deceased back
to her parental home. After the deceased
informed the informant about the conduct
of the aforesaid persons, he went to their
house and stated that he lacks money to
fulfil their demand and after leaving his
daughter with them, he came back. They
made many phone calls demanding dowry
and on 20.05.2009, the aforesaid persons
killed his daughter, information whereof
was
received
by
the
informant
on
20.05.2009 at 07:30 p.m. He reached there
and lodged the F.I.R. against the accused
persons on 21.05.2009 on the basis of
written application at 01:00 p.m.

4. Charges were framed against
accused under section 498-A, 304-B, 516
of IPC and 3⁄4 of D.P. Act. They pleaded not
guilty and sought trial.

5. The prosecution produced the
following
witnesses
to
prove
the
prosecution case:-

(A). P.W.-1, Pooran Singh,
informant
and
father
of
the
deceased; P.W.-2, Smt. Guddi,
mother of the deceased; P.W.-3,
Kumari Priti, sister of the deceased;
P.W.-4,
Anup,
uncle
of
the
deceased; P.W.-5, Dr. A.V. Singh,
who conducted the autopsy of the
dead body of deceased; P.W.-6,
Mahesh Chandra Pathak, Naib
Tehsildar, who prepared the inquest
report of the deceased; P.W.-7,
Amar Singh, witness of inquest;
P.W.-8,
Arun
Kumar
Sirohi,
Investigating Officer of the case;
P.W.-9, Ram Kumar Singh, witness
of inquest report; P.W.-10, another
witness of inquest report; P.W.-11,
Raju, another witness of inquest;
P.W.-12, Ranveer, also inquest
witness; P.W.13, Constable, Ram
Bahadur, who registered the F.I.R.
before
the
police
station
at
Madhavgarh, District- Jalaun, and
P.W.14-, Yashvant Singh, who
noted the information given by
Karan Singh, Chowkidar, of the
village that Smt. Deepika, resident
of Village- Malheta, had died on
account of burning on 20.05.2009
and information in this regard was
10 All. Upendra @ Balveer Vs. State of U.P.
473
registered in G.D. No. 20 at 04:35
p.m.

6.
 Thereafter,
statements
of
accused persons were recorded under
sections 313 Cr.P.C., wherein they denied
the allegations made against them.

7. P.W.-1, Pooran Singh, repeated
the contents of the F.I.R. before the court in
his examination-in-chief. In his crossexamination, he stated that after marriage
his daughter had separated from her fatherin-law, mother-in-law and was residing
with her husband, Upendra @ Balveer, the
appellant. He further stated that his
daughter never informed him about the
demand of motorcycle, a gold chain and
Rs. 1 lakh. His daughter came to his house
15 days after her marriage and went back to
her matrimonial home after 2-4 days.
Thereafter, he never went to meet her and
only when her death took place, he got
information. The matrimonial home of his
daughter was a small and kaccha house.
His daughter was suffering from the disease
of hysteria and while cooking food she
accidentally got burned and died. The
accused persons have 1 - 1.5 bigha of land.
They survive by doing the job of labourer.
His daughter was living with her husband
separately from her father-in-law and
mother-in-law. He had not read the
application made at the police station and
had only signed the same. The accused
persons were so poor that they were unable
to demand Rs. 1 lakh and motorcycle.
Because of financial problem father-in-law
and mother-in-law of his daughter were
living separately from the couple. The
deceased and her husband used to work as
labourers to eek-out their living. He was in
a state of shock and crying when his
signatures were taken on the application.
Later, he came to know that the F.I.R. has
been lodged on false allegations. He
requested the police personnels in this
regard, but they said, now nothing can be
done. He should get it corrected from the
Court.

8. P.W.-2, mother of the deceased,
also did not supported the prosecution case
at all and was declared hostile. In her crossexamination, she admitted that her daughter
was suffering from disease of hysteria and
used to run towards the fire. She might
have got burned while cooking food after
suffering the fit of hysteria.

9. P.W.-3 and P.W.-4 also deposed
accordingly and were declared hostile.

10. P.W.-5, Dr. A.V. Singh, proved
that on 21.05.2009, he was posted in
District Hospital, Orai, on the post of
Physician. He conducted the post mortem
of the dead body of the deceased alongwith
Dr. Madan Lal. In the post mortem
superficial to deep burns were found
present all over the body (100%) of
deceased. Sealed bundle of seven articles
were provided by the police wherein one
piece of cloth, which was found inside the
mouth of the deceased was also there apart
from other burned clothes and jewellery
found on the body of the deceased. Carbon
particles were found in her bronchi.

11. P.W.-6, proved that he prepared
the inquest report of the dead body of the
deceased. He also proved the samples of
the earth taken by the investigating officer,
challan of dead body and documents
prepared for sending dead body to post
mortem house. He further proved that he
found a kerosene lamp and matchstick box
near the dead body. All the matchsticks in
the box were burnt. The kerosene lamp was
found at about 2 feet distance from the
474 INDIAN LAW REPORTS ALLAHABAD SERIES
dead body of the deceased. There was a
chappar nearby which was not burnt. He
found cloth inside the mouth of the
deceased. He stated that he did not took out
cloth inside the mouth of the deceased in
his possession hoping that it will come in
the post mortem report.

12. P.W.-7, witness of inquest
proceedings, stated that number of villagers
had gathered after the incident. The mouth
of the deceased was open and flies were
going inside her mouth. On the direction of
the people gathered there, the ladies had
put a piece of cloth over mouth of the
deceased to cover it so that the flies may be
prevented from entering insider her mouth.

13. P.W.-8, Arun Kumar, Sirohi,
Investigating Officer of the case, proved
the proceedings of investigation conducted
by him including the recording of the
statements of the witnesses.

14. P.W.-9, proved that he had seen
the dead body of the deceased. She was
lying with her face towards the sky. Flies
were sitting on her mouth. There was
nothing in her mouth before he reached the
place of incident. In cross-examination, he
admitted that deceased had no grievance
against her father-in-law and mother-inlaw, who were living separately from the
couple.

15. P.W.-10, another inquest
witness, proved that he did not went near
the dead body of the deceased because of
the crowd of women. He further proved
that the father and mother of appellant,
Balveer, did not lived with the couple.

16. P.W.-11, also stated that he did
not saw the dead body of the deceased. He
only signed on the inquest report prepared
by the Tehsildar and Inspector of Police. He
also proved that the father and mother of
the appellant used to reside separately from
the couple.

17. P.W.-12, proved that at the time
of inquest husband of deceased, her fatherin-law and mother-law were present in the
house. Later he came to know that she got
burnt while cooking food. He further
admitted that the father and mother of the
appellant used to cook their food separately
from the couple. The deceased died while
cooking food at about 01:30 p.m.

18. P.W.-13 and P.W.-14, are
formal witnesses, who proved the lodging
of F.I.R. and receipt of information of the
death of the deceased at police station.

19. The accused persons in their
statements recorded under section 313
Cr.P.C., clearly stated that they have been
falsely implicated. No incident as alleged
took place. It was a case of accident and
not a case dowry death. The trial court by
the impugned judgment and order acquitted
Raj Bahadur and Smt. Ram Kali, the fatherin-law and mother-in-law of the deceased,
but convicted the appellant her husband,
under sections 316 and 302 IPC.

20. After hearing the rival
submissions, this Court finds that the Naib
Tehsildar, P.W.-6, has deposed before the
court that he saw the cloth in the mouth of
the deceased, but he did not took it out
hoping that it shall be seen at the time of
post mortem. P.W.-5, Dr. A.V. Singh, did
not found any cloth in the mouth of the
deceased rather a piece of cloth was found
in the bundle of articles produced by the
police before the P.W.-5, the doctor. There
is no statement of P.W.-5 proving that any
cloth was found, inserted inside the mouth
10 All. Upendra @ Balveer Vs. State of U.P.
475
of the deceased at the time of post mortem.
P.W.-6, further stated in his statement that
where the dead body of the deceased was
lying there were no signs of burning. There
was kitchen inside the chappar (thatched
roof) besides the dead body of the
deceased. P.W.7 and P.W.-9 have clearly
stated that the mouth of the deceased was
open and flies were entering inside her
mouth, therefore, the ladies of the village
put a cloth on her mouth to cover the same
and to prevent the flies from entering into
her mouth. P.W.-9 clearly stated that there
was nothing inside the mouth of the
deceased. P.W.12, a neighbour of the
deceased, clearly stated that the deceased
got burnt while cooking food at about
01:30 p.m,. From the prosecution evidence,
the charges under section 498-A / 304-B
and 3⁄4 D.P. Act could not be proved, but the
trial court has convicted the appellant for
committing the offences under section 302
and 316 IPC because two months old fetus
was found inside the womb of the
deceased. The trial court has convicted the
appellant on the basis of section 106 of the
Indian Evidence Act, on the premise that
since the deceased was residing with the
appellant, he was required to prove how the
alleged incident took place.

21. As far as the concept of
Section 106 of Indian Evidence Act is
concerned, that is misread by the learned
trial Judge because when the offence like
murder is committed in secrecy inside the
house, the initial burden to establish the
case would undoubtedly be upon the
prosecution. In view of Section 106 Indian
Evidence Act, there will be a corresponding
burden on the inmates of the house to give
cogent explanation as to how the crime was
committed. The inmates of the house
cannot get away by simply keeping quite
and offering no explanation on the
supposed premise that the burden to
establish its case lies entirely upon the
prosecution. Initial burden of proving that,
as on the date of the alleged incident, the
accused was present in the house or lastly
seen with the deceased or that he was lastly
in the company of the deceased at the time
of the incident would be primarily upon the
prosecution.

22. This High Court in the case of
Santosh Vs. State of U.P. 2021 0 Supreme
(All) 173, has discussed the law relating to
Section 106 of Indian Evidence Act, which
is quoted herein below:-

"35. Recently, this Court in
Dharmendra Rajbhar Vs. State of
U.P. (Supra) in similar situation
has considered legal position as far
as Section 106 of the Act, 1872 is
concerned. We do not want to
burden
our
judgment
with
reproduction of the said findings
and analysis except para 40 of the
said judgment wherein the Court
has held as under:-
"40. Section 101 to Section
114A of Chapter-VII of the Indian
Evidence Act, 1872 deal with
subject "OF THE BURDEN OF
PROOF." Section 106 of the Indian
Evidence Act provides that when
any fact is especially within the
knowledge of any person, the
burden of proof to prove that fact is
upon him. Section 106 is an
exception to Section 101 of the
Evidence Act which stipulates that
whoever desires any Court to give
judgment as to any legal right or
liability dependent on the existence
of facts which he asserts must
prove that those facts exist. Section
106 of the evidence act has to be
476 INDIAN LAW REPORTS ALLAHABAD SERIES
read in conjunction with and not in
derogation of Section 101 Evidence
Act. Section 106 of the Indian
Evidence Act does not relieve
prosecution of it's primary and
foremost duty to establish the guilt
of
the
accused
beyond
all
reasonable doubts independent of
weaknesses of the defence. It is
only when prosecution, for well
perceptible and acceptable reasons,
is unable to lead evidence because
of circumstances beyond it's control
including the reason that the fact
required to be proved was "within
the
special
knowledge
of
an
accused alone" and prosecution
could not have known it by due
care and diligence, that Section
106 can be resorted to by shifting
burden on the accused to disclose
that fact which is "in his special
knowledge" and if accused fails to
offer any reasonable explanation to
satiate judicial inquisitive scrutiny,
he is liable to be punished. Section
106 is not meant to be utilized to
make up for the prosecution's
inability to establish its case by
leading,
cogent
and
reliable
evidence."

23. In our case, it is established
fact that the appellant and his deceased
wife used to reside in same house. Hence,
the burden to prove factum of the death of
the deceased cannot be shifted on the
shoulders of the appellant unless the
prosecution first of all discharged its
burden by proving the fact that at the time
of alleged occurrence or at the time when
the deceased was put on fire, the appellant
was also inside the house. Learned AGA, in
this regard, has contended that appellant
has not taken the plea that he was not in the
house when the incident took place but this
was the negative burden on the appellant
accused. The prosecution has not brought
forward any evidence which could at least
establish the fact that at the time of
occurrence, the appellant was inside the
house. Hence, there is no applicability of
Section 106 of Indian Evidence Act in this
case.

24. Another aspect of the case is
that the appellant was charged under
sections 498-A, 304-B , 316 IPC and 3⁄4 of
D.P. Act, by the trial court, but the trial
court has not found the charges under
sections 498-A, 304-B and 3⁄4 of D.P. Act
proved against the appellant, but has
convicted the appellant under section 302
and 316 IPC.

25. This Court finds that the
appellant and also the acquitted accused
were not questioned regarding commission
of offence of murder of the deceased in
their examination under section 313 Cr.P.C.
The charge was altered only at the time of
judgment. Therefore, the accused were not
put to notice and opportunity of hearing
regarding the altered charge under section
302 IPC. There is no doubt about the power
of the trial court of altering of charge at any
stage, but it cannot be done in a manner
which is prejudicial to the interest of the
accused. This Court in the case of
Ramayan(Appellant) Vs. State of U.P.,
(Respondent), passed in Jail Appeal No.
6157 of 2016, had considered this aspect as
follows:-

"16. Learned counsel for
the appellant has contended that
the charge could not have been
altered in the fashion and in the
manner in which it has been done
which has acted prejudicial to the
10 All. Upendra @ Balveer Vs. State of U.P.
477
appellant
herein
and
learned
counsel has relied on the decision
in
R.
Rachaiah
Vs.
Home
Secretary, 2016 0 Supreme (SC)
383 and decision of this Court in
Criminal Appeal No.234 of 2017
(Dharmendra Rajbhar Vs. State of
U.P.), decided on 19.1.2021 so as
to contend that accused requires to
be given benefit of doubt as the
prosecution has failed to prove the
circumstances connecting accused
to death of deceased.
17. Learned counsel for the
State has vehemently submitted that
the burden of proof has been shifted
on the accused as per Section 106
of the Evidence Act, 1872 as the
death was unnatural and at the
dwelling place of husband.
18. Investigation of the
case had taken place and the
charge-sheet
was
laid
under
Section 498A, 306 of IPC but as we
can see, convicted the accused
under Section 302 of IPC after
altering the charge.
19. It is further submitted
by
learned
counsel
for
the
appellant that once Trial Court
came to the conclusion that no
offence
was
committed
under
Section
498A
of
IPC,
the
presumption under Section 113-B of
Evidence Act, 1872 could not be
raised.
20. It would be pertinent to
reproduce Section 216 of Cr.P.C.
regarding alteration of charge
which reads as follows:
"216. Court
may
alter
charge.
(1) Any Court may alter or
add to any charge at any time
before judgment is pronounced.
(2) Every such alteration or
addition
shall
be
read
and
explained to the accused.
(3) If the alteration or
addition to a charge is such that
proceeding immediately with the
trial is not likely, in the opinion of
the Court, to prejudice the accused
in his defence or the prosecutor in
the conduct of the case, the Court
may, in its discretion, after such
alteration or addition has been
made, proceed with the trial as if
the altered or added charge had
been the original charge.
(4) If the alteration or
addition is such that proceeding
immediately with the trial is likely,
in the opinion of the Court, to
prejudice the accused or the
prosecutor as aforesaid, the Court
may either direct a new trial or
adjourn the trial for such period as
may be necessary.
(5) If the offence stated in
the altered or added charge is one
for the prosecution of which
previous sanction is necessary, the
case shall not be proceeded with
until such sanction is obtained,
unless sanction has been already
obtained for a prosecution on the
same facts as those on which the
altered
or
added
charge
is
founded."

21. The question which
arises before us is that when no
cogent evidence to convict the
accused despite that the learned
Judge has relied on what can be
said to be his own conjectures
which are not borne out even on
interpretation of Section 106 of the
Evidence Act, 1872 (hereinafter
478 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to as 'Act, 1872') which
reads as follows:
"106. Burden of proving
fact especially within knowledge.--
When any fact is especially within
the knowledge of any person, the
burden of proving that fact is upon
him. Illustrations
(a) When a person does an
act with some intention other than
that which the character and
circumstances of the act suggest,
the burden of proving that intention
is upon him.
(b) A
is
charged
with
travelling on a railway without a
ticket. The burden of proving that
he had a ticket is on him."
21. Section 113B and 114
of the Act, 1872 reads as follows:
".1[113B. Presumption as
to dowry death.--When the question
is whether a person has committed
the dowry death of a woman and it
is shown that soon before her death
such woman has been subjected by
such
person
to
cruelty
or
harassment for, or in connection
with, any demand for dowry, the
Court shall presume that such
person had caused the dowry
death.
Explanation.--For
the
purposes of this section, "dowry
death"
shall
have
the
same
meaning as in section 304B, of the
Indian Penal Code, (45 of 1860).]."
114. Court may presume
existence of certain facts. --The
Court may presume the existence of
any fact which it thinks likely to
have happened, regard being had
to the common course of natural
events, human conduct and public
and private business, in their
relation
to
the
facts
of
the
particular case.
22. Provisions of Section
106 and 114 of Act, 1872 were
raised by the learned Judge below
but oral and other reliable evidence
would not permit this Court to raise
such presumption as the said
presumption is rebuttable. The fact
that the deceased died in the
matrimonial home is not in dispute
but whether it was accused who
authored the act which would fulfill
the ingredients of Section 300 of
IPC and whether it would fall
within
its
purview,
such
presumption cannot take place of
proof. The learned judge with
utmost respect could not have
convicted
the
accused
under
Section 302 of I.P.C. on evidence
which was not laid or rather the
evidence which was led, was never
put to him under Section 313 of
Cr.P.C statement and, therefore, he
was
taken
off
guard.
The
presumption under Section 106 of
Act, 1872 will not also come to the
aid of the prosecution as it was not
proved beyond reasonable doubt
that the charge which was added
did
not
even
mention
the
satisfaction of the learned Judge
below and the conviction was not
from major to minor but was from
minor to major offence.
23.
The
submission
of
learned A.G.A. is that no objection
was raised at the time of alteration
of charge.
24. We may hasten to
mention here that the charge was
added at the fag end of the trial.
The
accused
could
not
have
thought that the said alteration of
10 All. Upendra @ Balveer Vs. State of U.P.
479
charge would be acted upon within
seven days and the trial would
culminate into returning the finding
of punishment to him under Section
302 of IPC though the evidence
was not completing the right of
1872, Act.
25. In our case, we can
safely hold that the alteration of
charge was bad and reliance is
placed on the decision in R.
Rachaiah (Supra) which will apply
in full force.
26. In judging the question
of prejudice as of guilt, the Trial
Court was supposed to act with a
broad vision and look to the
substance
and
not
to
the
technicalities. The main concern
should be to see whether accused
has/had a fair trial though he may
know or not of what he was being
tried for, once the evidence is over,
he would not have a fair chance of
cross-examination of the witnesses
for the new charge added which is
under Section 302 of I.P.C. and no
evidence was recorded so as to
bring home charge of Section 302
of IPC. No doubt the stage of
framing new charge under Section
216 of the Cr.P.C. can be at any
stage, but the charge for alteration
or addition has to be so that the
accused is put to circumstance
which are against him. The basic
feature for framing and/or altering
charge in criminal trial is based on
principle of fair play.
27. The charges which were
levelled and in absence of any
evidence, being proved and when
there was no charge of murder, the
Trial Court could not have altered
the charge at the fag end of the
Trial and raised presumption as to
commission
of
offence
under
Section 302 of IPC.
28. The object and scope of
altering
the
charge
and
the
principles
therein
have
been
summarized by the Apex Court in
Nallapareddi Sridhar Reddy Vs.
State of A.P., (2020) 12 SCC 467,
which are applicable in our case.
29. In this case, the learned
Trial Judge perused the charges
and suddenly after most of the
witnesses were examined and when
it appeared that he could not base
the conviction, on the basis of
presumption under Section 106 and
114 of the Evidence Act, 1872, he
altered the charge to Section 302 of
I.P.C.
30. The Apex Court in R.
Rachaiah Vs. Home Secretary,
2016 0 Supreme (SC) 383 has held
that
alteration
of
charge
in
violation
of
mandate
as
per
Sections 216 and 217 of Cr.P.C.,
and conviction recorded under
altered charges seriously causes
prejudice
to
the
accused.
Thereafter, this impropriety of the
Trial Court stands vitiated and
there
could
have
been
no
conviction under altered charge
namely under Section 302 of IPC."

26. We can safely conclude that
accused-appellant
was
not
given
opportunity to defend himself against the
charge for which he was convicted. It is
sorry state of affair that learned trial judge
altered the charge even after recording the
statement
of
accused-appellant
under
Section 313 Cr.P.C., therefore, the charge
was fitted according to the prosecution
evidence. There is no doubt that charge can
480 INDIAN LAW REPORTS ALLAHABAD SERIES
be altered at any stage of the trial but in
such a case, the learned trial court should
give proper and fair opportunity to the
accused to defend himself against the
altered charge so that his interest may not
be prejudiced. He must get the opportunity
of fair trial.

27. In our case, accused is highly
prejudiced for not getting the fair and
proper opportunity to defend himself
against the altered charge and the impugned
judgment and order is liable to be set aside.

28. In this case, we find that none
of the prosecution witnesses of fact
supported the prosecution case at all. They
admitted it to be case of accident. P.W.-1,
clearly admitted that accused were so poor
that the demand of Rs. 1 lakh, one gold
chain and a motorcycle was not for them to
make. Yet the trial court convicted the
appellant disregarding evidence on record
and on wrong appreciation of relevant law,
but rightly acquitted the father and mother
of appellant of all charges.

29. In view of above, we are of the
firm view that the judgment and order of
the trial court cannot be sustained and is
hereby set aside.

30. The appellant has already
undergone about 13 years of imprisonment
before being released on bail on 21.10.2022
for no fault on his part for which he is
entitled to heavy compensation from State,
but due lack of statutory framework, we are
helpless.

31. For the hundreds of innocent
persons, who are wrongfully prosecuted but
later acquitted after years, our justice
delivery system takes little pains to make
amends. True that under the public law
remedy, some isolated adjudications came
by way of writ jurisdiction, but it failed to
shape a set formula for development of this
branch
of
compensation
jurisdiction.
Article 21 of the Constitution says, `no
person shall be deprived of his life and
personal liberty except in accordance with
procedure established by law'. The loss of
productive years of life, feeling of loss of
freedom, the negation by society, damage
to identity, dignity, and reputation, shame,
fear etc. cause multiple psychic disorders
for this hapless lot. The damage to health,
loss of income, loss of property, litigation
expenses, loss of family life, loss of
opportunities for education and career
progression, stigmatization etc., add to this
horrible count. Above all, the emotional
and physiological harm caused to the
family of accused takes unimaginable
proportions given the stigma carried
forward for generations. Instances are not
rare where marriage proposals get turned
down for incarceration of kindred even in
the ancestral line. True that at times,
positive
overtures
in
constitutional
jurisdictions have addressed this issue. But
still now no concrete judicial mechanism to
have uniform application in cases of
wrongful prosecution took shape in our
jurisprudence to do some reparation.

The Delhi High Court in Babloo
Chauhan @ Dabloo V. State Government of
NCT 247 (2018) DLT 31 directed the Law
Commission to undertake a comprehensive
examination of the issue of wrongful
prosecution and suggest a mechanism for
compensation and rehabilitation of victims
of wrongful prosecution.

32. The Law Commission in its
277th Report recommended for a legal and
statutory frame work for establishing a
mechanism for adjudicating up on claims
10 All. Upendra @ Balveer Vs. State of U.P.
481
for wrongful prosecutions. Commission
proposes a statutory obligation on the State
to compensate the victims of wrongful
prosecution
with
the
right
to
be
indemnified by the erring officers. The
proposal for establishment of special courts
for
speedy
disposal
of
claims
for
compensation is another notable suggestion
by the Commission. A Draft Bill containing
amendments to Code of criminal Procedure
was annexed with the Report. The Bill
seeks
to
incorporate
definitions
to
`malicious prosecution' and `wrongful
prosecutions', in addition to insertion of
Chapter XXVII A containing procedural
rules for laying claims. The definition of
malicious prosecution as an "act of
instituting the prosecution complained of
without any existing reasonable or probable
cause", to a great extent dissuades police
over zeal in sponsored prosecutions. The
all-encompassing narration of misdeeds
constituting
the
act
of
'wrongful
prosecution' in the definition clause in the
Bill is sufficient to ward off ambiguity in
any form and provide clear pointers to the
adjudicatory authority in deciding on the
claim for compensation for wrongful
prosecution. Making false or incorrect
record or document, making false statement
before officer authorized to take evidence,
giving false evidence, fabricating false
evidence,
suppression
of
exculpatory
evidence, filing a false charge, committing
a person to confinement etc. are instances
of inculpatory misdemeanours leading to a
wrongful prosecution, which fortunately
find a distinctive place in the exhaustive
definition given to 'wrongful prosecution'
in the Draft Bill.

33. Commission has considered
Article 14(6) of the International Covenant
on Civil and Political Rights 1966 (ICCPR)
delineates the obligation of States in cases
of miscarriage of justice resulting from
wrongful prosecutions. It says "when a
person has by a final decision been
convicted of a criminal offence and when
subsequently his conviction has been
reversed or he has been pardoned on the
ground that a new and newly-discovered
fact shows conclusively that there has been
a miscarriage of justice, the person who
has suffered punishment as a result of such
conviction shall be compensated according
to law, unless it is proved that the nondisclosure of the unknown fact in time is
wholly or partly attributable to him."
Article
9(5)
of
the
ICCPR
further
underscores this right by declaring that
"anyone who has been the victim of
unlawful arrest or detention shall have an
enforceable right to compensation". The
United Nations Human Rights Committee
explained the obligations contained in
Article 14 of ICCPR: "It is necessary that
States parties enact legislation ensuring
that compensation as required by this
provision can in fact be paid and that
payment is made within a reasonable
period of time." As nearly as 168 State
parties, including India, have ratified
ICCPR. But the incorporation of this
international obligation into domestic legal
frame work has been done only by a few
countries.

34. Criminal Justice Act 1988 is
the statute in England following ratification
of ICCPR by the United Kingdom. Sections
133, 133A, 133B of the Act, in its
combined synergy, provide for creation of a
mechanism under the Secretary of State for
determination
and
disbursement
of
compensation to victims of miscarriage of
justice. A person who has suffered
imprisonment consequent to wrongful
conviction can approach the Secretary of
State for Compensation if conviction is
482 INDIAN LAW REPORTS ALLAHABAD SERIES
reversed or pardoned on the ground of
miscarriage of justice. The emergence of a
new fact proving beyond reasonable doubt
that the person has not committed the
offence was the expanded version and norm
for `miscarriage of justice' under the UK
Law. But in 2011, in R (on the application
of Adams) V. Secretary of State for Justice,
the UK Supreme Court widened the scope
of 'miscarriage of justice and the notion of
innocence', by ruling that even those who
cannot prove innocence beyond reasonable
doubt also can lay claim for compensation.
The Criminal Cases Review Commission
(CCRC) working in the UK undertakes the
exercise of review of the cases with
possibility
of
miscarriage
of
justice
working in the criminal courts in the UK. It
can gather field information related to a
case and carry out its own investigation for
finding out the real truth in a pending case
or a disposed case and accordingly apply
for review of conviction, if miscarriage is
found out. The UK Police Act 1996 makes
the Chief Officer of Police liable in respect
of any unlawful conduct of constables
under his direction and control in the
performance of functions, with clauses for
payment
of
compensation.
The
distinguishing feature of UK compensation
regime is that it fixes a compensation slab
taking periods of imprisonment as bench
marks to do full justice according to
variables.

35. The United States Code deals
with federal claims from persons unjustly
convicted of an offence against the United
States and imprisoned. Claimant is eligible
for relief on grounds of pardon for
innocence, reversal of conviction or of not
being found guilty at a new trial or
rehearing. The US Court of Federal Claims
is the adjudicatory forum under the statute.
The length of incarceration is the yardstick
or variable for the determination of
compensation. All States in the US have
their State laws providing for compensation
to victims of wrongful prosecution. While
some States lay down fixed amount of
compensation to be paid depending on
period of incarceration, others have given
discretion
to
the
forum
to
decide
compensation based on individual fact
dossiers. In the State of Illinois, a tabular
compensation formula based on period of
incarceration is adopted. Non-monetary
compensation is given for assisting victims
in rehabilitation and reintegration into the
society including transitional services like
housing assistance, job training, assistance
in terms of job search and placement
services, referral to employees with job
openings, physical and mental health
services for enabling victims to reintegrate
into
society.
Other
Common Wealth
countries like Canada, New Zealand and
Australia have infused ICCPR treaty
obligations for compensation into their
domestic jurisprudence by appropriate
legislations.

36. In the absence of clear
statutory frame work in consonance with
the commitments under ICCPR, the Indian
courts have paraphrased in its numerous
decisions what actually is miscarriage of
justice
resulting
from
wrongful
prosecution,
particularly
in
its
constitutional remedy jurisdictions. Right
to fair trial, an attribute of Article 21 of the
Constitution, is the barometer for its
forensic
evaluation
of
wrongful
prosecution. Journey from the Maneka
Gandhi AIR 1978 SC 597 case to S Nambi
Narayanan v. Siby Mathews & others AIR
2018 SC 5112 marks the evolution of
jurisprudence on violation of fundamental
rights,
particularly
compensation
for
wrongful prosecutions. The apex court as
10 All. Upendra @ Balveer Vs. State of U.P.
483
early
as
in
1983,
while
ordering
compensation
for
illegal
detention,
observed in Rudul Shah vs State of Bihar
1983 AIR 1086: "one of the telling ways in
which the violation of that right can
reasonably
be
prevented
and
due
compliance with the mandate of Article 21
secured, is to mulct its violators in the
payment of monetary compensation." Bhim
Singh v. State of J&KAIR 1986 SC 494
was another case in the episodic judgments
followed in the compensation jurisdiction,
where for an illegal arrest and detention the
Supreme
Court
awarded
₹50,000
as
compensation to the sufferer. Nilabati
Behera v. State of Orissa 1993 AIR 1960
underlined the principle that sovereign
immunity is not available in an action for
compensation for violation of fundamental
rights, where the adjudication is under
Article 32 and 226 of the Constitution.
Consumer Education and Research Center
& others V. Union of India reiterated the
above principle. However, Supreme Court
rejected the plea for compensation for the
accused who were in jail for a decade and
more but were subsequently acquitted in
Sulemenbhai Ajmeri & Ors. V. State of
Gujarat, 2014 SCC 716 popularly called,
Akshardham Temple Case.

37. Private Law Remedy for the
tort of malicious prosecution is not an
effective remedy for victims for the
inherent improbability in its successful
finale. Given the tardy pace of civil
litigation and the expenses like court fees
and other litigation costs involved, private
law remedy sounds not meaningful and
user friendly for the victims.

38.