# Vinod Mali (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-19
- **Case number:** Criminal Appeal No. 1534 of 2020
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-mali-in-jail-v-state-of-u-p-47564
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code 1860-
Section 413- Code of Criminal Procedure
1973- Section 313- Confession under-
Appellant-accused was held guilty and
sentenced by the trial court on the basis of
his confessional statement made before
the learned trial court. Confession made
by the accused, shall be taken as a whole.
It cannot be in parts because it was made
regarding same occurrence and he made
confession
with
his
own
freewill
-
Offences committed by the appellant
which he confessed include offence under
Section 413 I.P.C. also. After confession
made by the appellant, no other evidence
was required to convict him. When
conviction is made as a whole regarding
any occurrence or set of occurrences, it
shall be taken as a whole. It cannot be
fragmented
into
pieces
and
accused
cannot
at
later
stage
claim
that
confessional statement made by him,
should be considered regarding some of
the offences only.

Where
the
accused
makes
a
confession
voluntarily then the same will be taken as a
whole and would apply to other offences also
with which he is charged and conviction on the
basis of such confession shall also be taken as a
whole and for all the offences - No further
evidence is required to be adduced by the
prosecution after confession by the accused.

Criminal Law - Indian Penal Code 1860-
Section 413- For convicting the accused
under
Section
413
I.P.C.
it
is
not
mandatory particularly after confession,
that accused should have already been
convicted under Section 411 I.P.C. twice
or more than twice because accused
appellant has himself made confession
9 All. Vinod Mali Vs. State of U.P.
233
before the learned trial court that he was
habitual
in
dealing
with
the
stolen
properties. It is not the case of the
appellant nor he argued that accused did
not make confession with freewill.

When the accused voluntarily confesses that he
was habitual in dealing with stolen properties
then it is not mandatory for the prosecution to
establish that he was previously convicted u/s
411 IPC twice or more than twice. ( Para 18, 19,
21)

Criminal appeal rejected. (E-3)

Judgements/ Case law cited:-

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES
dowry of Rs.50,000/- and a four wheeler in
the FIR. The statements of PW-1 and PW-2
show that they did not state this fact before
the Investigating Officer also, both the above
witnesses have stated the fact of demanding
Rs.50,000/- and a four wheeler for the first
time before the trial court, therefore, these
averments will come under the category of
improvement. Moreover, entire suicide-note
does not contain any such demand of dowry
or torturing the deceased. Learned trial court
has wrongly given the finding of mental
cruelty on the basis that appellant drove out
the deceased from his life. In the absence of
mens rea and proximate cause for abetting
the suicide, learned trial court has wrongly
appreciated the law regarding the abetment.

21. On the basis of above discussion,
this Court is of the definite opinion that
learned trial court did not appreciate the
evidence on record in right perspective and
wrongly convicted the appellant for the
offence under Sections 306 IPC and 498A
IPC.

22. Hence, the appeal is liable to be
allowed.

23. Accordingly, the appeal is
allowed. Conviction and sentence of
appellant as awarded is hereby set aside.
Appellant is on bail, his bail bond is
cancelled and sureties are discharged.
----------
(2021)09ILR A232
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.08.2021

BEFORE
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1534 of 2020

Vinod Mali ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shiv Vilas Mishra, Sri Vinod Kumar
Sharma

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

Criminal Law - Indian Penal Code 1860-
Section 413- Code of Criminal Procedure
1973- Section 313- Confession under-
Appellant-accused was held guilty and
sentenced by the trial court on the basis of
his confessional statement made before
the learned trial court. Confession made
by the accused, shall be taken as a whole.
It cannot be in parts because it was made
regarding same occurrence and he made
confession
with
his
own
freewill
-
Offences committed by the appellant
which he confessed include offence under
Section 413 I.P.C. also. After confession
made by the appellant, no other evidence
was required to convict him. When
conviction is made as a whole regarding
any occurrence or set of occurrences, it
shall be taken as a whole. It cannot be
fragmented
into
pieces
and
accused
cannot
at
later
stage
claim
that
confessional statement made by him,
should be considered regarding some of
the offences only.

Where
the
accused
makes
a
confession
voluntarily then the same will be taken as a
whole and would apply to other offences also
with which he is charged and conviction on the
basis of such confession shall also be taken as a
whole and for all the offences - No further
evidence is required to be adduced by the
prosecution after confession by the accused.

Criminal Law - Indian Penal Code 1860-
Section 413- For convicting the accused
under
Section
413
I.P.C.
it
is
not
mandatory particularly after confession,
that accused should have already been
convicted under Section 411 I.P.C. twice
or more than twice because accused
appellant has himself made confession
9 All. Vinod Mali Vs. State of U.P.
233
before the learned trial court that he was
habitual
in
dealing
with
the
stolen
properties. It is not the case of the
appellant nor he argued that accused did
not make confession with freewill.

When the accused voluntarily confesses that he
was habitual in dealing with stolen properties
then it is not mandatory for the prosecution to
establish that he was previously convicted u/s
411 IPC twice or more than twice. ( Para 18, 19,
21)

Criminal appeal rejected. (E-3)

Judgements/ Case law cited:-

1. Ajay Sethi Vs State 2017 (4) JCC 2495 (
Distinguished on facts)

2. Banne Singh @ Pahalwan Vs St. of Raj., 2014
SCC Online Raj 169 ( Distinguished on facts)

(Delivered by Hon'ble Ajai Tyagi, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the
respondent.

2. This criminal appeal has been
preferred by the appellant-Vinod Mali, who
was convicted and sentenced in S.T. No.503
of 2019 (State Vs. Vinod Mali), arising out of
Case Crime No.137 of 2016, registered under
Sections 177, 171, 419, 417, 411 and 413
I.P.C. at Police Station G.R.P., District
Gorakhpur, in which the accused-appellant
was convicted for six months under Section
177 I.P.C., for three months under Section
171 I.P.C., for two years under Section 419
I.P.C., for one year under Section 417 I.P.C.,
for two years under Section 411 I.P.C. and
for six years under Section 413 I.P.C.
alongwith fine in all above offences and
imprisonment for default of fine.

3. The relevant facts of the case are that
on 12.03.2016 police party of Police Station
G.R.P., District Gorakhpur was checking at
the railway station and platform, when they
were present at platform no.2, the informer
informed the police party that some persons
were standing near the gate no.1; they were
suspected and were talking about theft and
robbery. Police party went to that place and
found that two persons were sitting on
different motorcycles and others were
standing there; one person was sitting on
motorcycle no. U.P. 53 AS 7764 in police
uniform; when he was inquired he told his
name as Vinod Mali S/o Late Phooldev Mali,
R/o
Loharpurwa,
P.S.
Kaimpiarganj,
permanent resident of village Pandit Purwa,
P.S. Dohari Ghat, District Mau and he told
that he was a constable and posted in Kotwali
Maharajganj. He was asked to produce
identity card, which was produced by him;
prima facie identity card was looking
suspicious, hence, accused Vinod Mali was
asked to tell the name of S.P., Maharajganj
but he could not tell name of S.P.,
Maharajganj and after that he was asked to
tell
the
name
of
Inspector
Kotwali,
Maharajganj but he also could not tell the
name of Inspector, Kotwali Maharajganj;
when he was strictly inquired, he told that he
was not a constable but rather he has running
a gang of which he was a leader and other
persons are his gang members. They used to
make theft or robbery of passengers
travelling in train and by that, they earn the
bread and butter of their family. Vinod Mali
also told the police that if some member of
his gang is caught by the people, he helps
them in the name of being in the police
department. All the persons standing there,
were arrested by the police and they
confessed that they were having Alprazolam
powder, stolen motorcycles and stolen mobile
phones etc.

4. From the possession of accusedappellant
120
grams
of
Alprazolam
234 INDIAN LAW REPORTS ALLAHABAD SERIES
powder, two stolen mobile phones, one
stolen motorcycle were recovered and a
fake identity card of U.P. Police was also
recovered at the time of arrest. The police
uniform of appellant-Vinod Mali was also
found fake.

5. Alongwith appellant-accused, other
co-accused persons Santosh, Chauhan,
Nand Lal @ Nandu Chauhan, Ram Darash
Nishad and Ram Kishore @ Raj Kishore
were
also
arrested
and
from
their
possession also Alprazolam powder, stolen
mobile phones, stolen tablets and stolen
motorcycle were recovered. As per the
recovery memo, all the above persons were
booked under Section 8/21/22 of Narcotic
Drugs and Psychotropic Substance Act,
1985 and also under Sections 411, 413,
414, 417, 419 and 171 I.P.C. All the
recovered articles were sealed on the spot
and sample seal was prepared. Recovery
memo was also prepared on the spot and
the cases were registered against above
accused persons.

6. The learned trial court has
commenced the trial of above accused
persons after framing different charges
against them and after examination of
P.W.-1 and P.W.-2, the case file of
appellant-Vinod Mali was separated from
other co-accused persons.

7. The learned trial court framed
charges under Sections 177, 171, 419, 417,
411 and 413 I.P.C. against the accusedappellant and he was convicted for all the
above
offences.
Aggrieved
by
the
impugned judgment and order of learned
trial court, the appellant preferred this
appeal.

8. Learned counsel for the accusedappellant said that as per the prosecution
case, 120 grams of Alprazolam powder was
said to be recovered from the possession of
the applicant for which separate case under
relevant Sections of N.D.P.S. Act was
registered and in this present case, two
stolen mobile phones and one stolen
motorcycle were said to be recovered from
the possession of accused-appellant. Apart
from that it is said that he was having fake
identity card of U.P. Police and wearing
fake uniform of U.P. Police; posing himself
as police constable and on making inquiry
by the police of G.R.P., Gorakhpur, he
falsely told them that he was a police
constable and posted in Kotwali, District
Maharajganj.

9. Learned counsel for the appellant
submitted that P.W.-1, constable Ram
Pravesh Bharti and P.W.-2 Head Constable
Abhay Pandey were examined before the
learned trial court and at that time accusedappellant moved a confession application
before the learned trial court and his file
was separated. In his statement under
Section 313 Cr.P.C. accused-appellant
confessed his guilt and on the basis of that
confession, learned trial court held him
guilty for all the charges framed against
him and convicted.

10. Learned counsel for the appellant
also
submitted
that
apart
from
the
conviction of offences under Sections 177,
171, 419, 417 and 411 I.P.C., the accusedappellant was also convicted and sentenced
under Section 413 I.P.C. It is next
submitted that he had nothing to say
regarding the conviction and sentence of all
the other offences except offence under
Section 413 I.P.C. because Section 413
I.P.C. relates to the habitual offender.

11. Learned counsel for the appellant
argued that in its impugned judgment,
9 All. Vinod Mali Vs. State of U.P.
235
learned trial court has given finding
regarding the appellant being habitual
offender only in one line by saying that
accused was habitual offender used to deal
in stolen property while for being habitual,
the accused should have been convicted
twice or more than twice under Section 411
I.P.C. No person can become habitual by a
single act. Learned counsel for the
appellant in this regard relied upon the case
law of Delhi High Court Ajay Sethi Vs.
State 2017 (4) JCC 2495 by saying that in
this case Delhi High Court has held that for
being habitual, the accused should have
been convicted twice or more than twice
under Section 411 I.P.C. Learned counsel
also submitted that in above said judgment,
Delhi High Court has followed the case of
Banne Singh @ Pahalwan Vs. State of
Rajasthan, 2014 SCC Online Raj 169. In
this case Rajasthan High Court has also
held that for being habitual, a person
should have been convicted twice or more
than twice under Section 411 I.P.C.

12. Learned counsel for the appellant
has submitted that if the appellant had
made confession before the learned trial
court under Section 413 I.P.C., even then
he could not have been held guilty for that
offence rather at that time learned lower
court should have asked for at least two
judgments of conviction of accusedappellant under Section 411 I.P.C. There is
no evidence on record that accused was
ever convicted for the offence under
Sections 411 I.P.C.

13. Per contra, learned A.G.A. has
submitted that accused himself made
confession of his offences with freewill
before learned trial court and there is
nothing under Section 413 I.P.C. that
accused should have been convicted more
than once for offence under Section 411
I.P.C. There is no such requirement in the
Section 413 I.P.C. Learned counsel for the
appellant made rival submission in this
regard that judicial interpretation of Section
413 I.P.C. is there through the judgment of
Ajay Sethi Vs. State (Supra).

14. I have perused the judgment of
Ajay Sethi Vs. State (Supra), which was
referred by learned counsel for the
appellant. In this case, it is held by Delhi
High Court as under:-

"49. Something more is required
to establish that the offender is in the habit
of dealing with or receiving stolen
property. Since the offence under Section
413 I.P.C. is inter-related with and is an
aggravated form of Section 411 I.P.C., the
State would have to prove and establish
that the offender was convicted repeatedly,
twice or more than twice, for offence under
Section 411 I.P.C. so as to establish beyond
a reasonable doubt that he is in the habit of
dealing with or receiving stolen property.
Therefore, the conviction under Section
413 I.P.C. is based on repeated convictions
for offence under Section 411 I.P.C. Due to
previous conviction, a punishment of
different kind is prescribed in Section 413
I.P.C. which the accused is required to
undergo.

50. Hence, while prosecuting a
person for offence under Section 413
I.P.C., the prosecution has to prove the
following factors: firstly, the property in
question has been stolen from a place.
Thus, the prosecution must bring the
property within the ambit of Section 410
I.P.C. within the definition of stolen
property. Secondly, the offender has been
dealing with or receiving stolen property.
Thirdly, the offender knew or had a reason
to believe the property to be stolen.
Fourthly, he has been repeatedly convicted,
236 INDIAN LAW REPORTS ALLAHABAD SERIES
i.e. twice or more than twice, of offence
under Section 411 I.P.C. It is only after the
prosecution establishes these factors that
the court would be legally justified in
concluding that the offender is habitually
dealing with or receiving stolen property
and in imposing the punishment as
prescribed by Section 413 I.P.C."

15. These are the above observations
made by the Rajasthan High Court, which
were followed by Delhi High Court in
above said judgment but the facts of above
cases decided by Delhi High Court and
Rajasthan High Court do not apply to this
case because in the cases of Delhi High
Court and Rajasthan High Court, several
FIRs/Charge Sheets were pending against
the concerned accused persons and Delhi
and Rajasthan High Court held that
concerned accused has not been yet
convicted under Section 411 I.P.C. In the
concerned case of Banne Singh @
Pahalwan Vs. State of Rajasthan High
Court (Supra), Rajasthan High Court said
that appellant was involved in six different
FIRs "undoubtedly so far the appellant has
been convicted only by the learned trial
court at Jaipur. He continues to face trials
and other FIRs mentioned above, hence
prior to his conviction by the learned
Judge, the appellant was never convicted
for offence under Section 411 I.P.C." In the
case before Delhi High Court in Ajai Sethi
Vs. State (Supra), there were also several
FIRs pending against the accused-appellant
and Delhi High Court held that in order to
convict a person under Section 413 I.P.C.,
the most important ingredient is that a
person must be a habitual offender or
receiver of stolen goods. He must be a
person who is in the habit of receiving
stolen properties and this Section cannot be
applied in case of a single offence. The
element of repetition is mandatory. Merely
on the basis of pendency of FIRs or a
person facing trial, a conviction under
Section 413 I.P.C. would be unjustifiable in
absence of accused previous conviction(s).

16. In this present case, facts are
entirely different from the facts which were
before the Delhi High Court and Rajasthan
High Court because in this case appellantaccused was held guilty and sentenced by
the trial court on the basis of his
confessional statement made before the
learned trial court. Although, the learned
counsel for the appellant has argued that
learned trial court could not hold him guilty
on the basis of confession of appellant.
Perusal of record shows that accusedappellant was arrested on 12.03.2016 along
with other accused persons at railway
station
Gorakhpur
and
during
trial,
prosecution examined two witnesses as
P.W.-1 and P.W.-2.

17. P.W.-1 is formal witness. Accused
did not make any cross-examination of
P.W.-2 and confessed his guilt in his
statement under Section 313 Cr.P.C.

18. I do not agree with the submission
made by the learned counsel for the
appellant that despite the confession of
appellant, learned trial court should have
asked for two judgments in which appellant
would have been convicted under Section
411 I.P.C. because confession made by the
accused, shall be taken as a whole. It
cannot be in parts because it was made
regarding same occurrence and he made
confession with his own freewill and in his
statement under Section 313 Cr.P.C., in
question no.6 it was specifically put before
the appellant as to whether he habitually
used to deal in stolen goods. Appellant did
not deny this question and in question no.
11, he also said that trial was held against
9 All. Jagarnath Vs. State of U.P.
237
him on account of commission of offences
by him. It is important to mention that
offences committed by the appellant which
he confessed include offence under Section
413 I.P.C. also.

19. After confession made by the
appellant, no other evidence was required
to convict him. The confession regarding
other offences under Sections 177, 171,
419, 417 and 411 I.P.C. is not challenged
by appellant. Hence, when conviction is
made as a whole regarding any occurrence
or set of occurrences, it shall be taken as a
whole. It cannot be fragmented into pieces
and accused cannot at later stage claim that
confessional statement made by him,
should be considered regarding some of the
offences only.

20. P.W.-2, Abhay Pandey, Head
Constable was produced by the prosecution
before the learned trial court as arresting
witness, who said in his statement that on
12.03.2016 he along with other members of
police party of P.S. G.R.P. Gorakhpur was
present at platform no.2A. At the time of
checking, accused-appellant was arrested
by the police along with other co-accused
persons and two stolen mobile phones, one
stolen motorcycle were recovered from his
possession apart from Alprazolam powder.
It was also stated by this witness that at the
time of arrest, appellant was having a fake
identity card of U.P. Police and was
wearing fake uniform of U.P. Police.
Above statement was made by P.W.-2 in
his examination-in-chief and it is very
pertinent to note that P.W.-2 was not crossexamined by the accused-appellant, rather
he made the confession of his guilt under
Section 313 Cr.P.C. Hence, in my opinion,
confessional statement of accused-appellant
cannot be treated as partial and applicable
to some of the offences only.

21. In view of the above, I am unable
to agree with the argument of learned
counsel for the appellant that for convicting
the accused under Section 413 I.P.C. it is
mandatory particularly after confession,
that accused should have already been
convicted under Section 411 I.P.C. twice or
more than twice because accused appellant
has himself made confession before the
learned trial court that he was habitual in
dealing with the stolen properties. It is not
the case of the appellant nor he argued that
accused did not make confession with
freewill.

22. No other argument raised by the
appellant.

23. I find no merit in this appeal and
the same is liable to be dismissed.

24. The appeal is accordingly,
dismissed.
----------
(2021)09ILR A237
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 2051 of 1993

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

Counsel for the Appellant:
Sri V. Singh

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

Essential Commodities Act- Section 3/7-
Modification of Sentence- Two hundred