# Manna and others v. The State of U.P

- **Citation:** (2010) 2 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-25
- **Case number:** Criminal Appeal No. 941 of 1981
- **Bench:** Uma Nath Singh, Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manna-and-others-v-the-state-of-u-p-41669
- **Pages:** 7

## Headnote

case diary offense Under Section 396,
302 and 412 made out but Trial Judge
framed charge for offense Under Section
460/201
IPC
only-held-Trial
Judge
committed great error by not framing
charge regarding murder and disposing
of dead body stealthily in order to
disappearance
of
evidence-appeal
allowed and remanded back to frame
appropriate
charges
ofter
hearing
prosecution and accused person and to
conclude Trial as the earliest possible
considering long term of pendency of
Trial.

Held: Para 21

On the basis of the above discussion, we
are of the view that learned lower court
has committed an error in framing the
charges under Section 460/201 I.P.C.
only. He should have framed charges
regarding murder of the deceased and
disposing of his dead body stealthily in
order
to
cause
disappearance
of
evidence
and
while
framing
such
charges, he should have also considered
the circumstances which are indicative
of the offences relating to theft, robbery
or dacoity and should have also framed
charges regarding these offences.

## Text

2 All] Manna and others V The State of U.P
611
no. 11124 of 2009 is concerned. Suffice to
record that no legal proposition has been
laid down by the judgment. Only a
direction was issued to consider the request
made as per the law. The law has been
explained by this court. Therefore, no
further consideration by the Regional
Higher Education Officer is required.

9. At this stage counsel for the
petitioner submitted that the petitioner may
be granted liberty to apply and they be
considered. It is not necessary for this
Court to issue any such direction that as
the petitioner if eligible in terms of
advertisement published can always apply
and their application shall be taken care of
by the authority concerned as per the
conditions applicable.

The writ petition is dismissed.
---------

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE ASHOK SRIVASTAVA, J.

Criminal Appeal No. 941 of 1981

Manna and others

 ...Petitioner
Versus
The State

 ...Respondent

Counsel for the Petitioner:
Sri K.K. Dixit
Sri Madhurima Bhargava
Sri Mamta Singh Yadav

Counsel for the Respondent:
G.A.

Criminal Appeal-Charges not properly
framed by the Trial court from perusal of
case diary offense Under Section 396,
302 and 412 made out but Trial Judge
framed charge for offense Under Section
460/201
IPC
only-held-Trial
Judge
committed great error by not framing
charge regarding murder and disposing
of dead body stealthily in order to
disappearance
of
evidence-appeal
allowed and remanded back to frame
appropriate
charges
ofter
hearing
prosecution and accused person and to
conclude Trial as the earliest possible
considering long term of pendency of
Trial.

Held: Para 21

On the basis of the above discussion, we
are of the view that learned lower court
has committed an error in framing the
charges under Section 460/201 I.P.C.
only. He should have framed charges
regarding murder of the deceased and
disposing of his dead body stealthily in
order
to
cause
disappearance
of
evidence
and
while
framing
such
charges, he should have also considered
the circumstances which are indicative
of the offences relating to theft, robbery
or dacoity and should have also framed
charges regarding these offences.

(Delivered by Hon'ble Ashok Srivastava, J.)

1. The appellants Manna, Munai and
Ram Prasad have been found guilty under
Sections 460/201 I.P.C. by learned II
Additional Sessions Judge, Hardoi in S.T.
No. 223/80 vide judgment and order dated
11.12.1981. Each of the appellant has
been sentenced to life imprisonment
under Section 460 I.P.C. and 5 years R.I.
for the offence under Section 201 I.P.C.
They have also been sentenced to pay
fine.

2. Brief facts of the case are that the
deceased Ramghulam, was a resident of
village Gogadeo where he lived in his
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
own house. The wife of Ramghulam had
died during his life time and he had only
one issue, a daughter, who was already
married some 12 years ago from the date
of incident. In these circumstances the
deceased Ramghulam was living all alone
in his residential house. The house of the
appellant Manna was adjacent to the
house of the deceased. The complainant
of this case is one Chhotey Lal who is a
cousin of the deceased and he was living
in the same village and his residence was
at a distance of some 40 paces from the
house of deceased. The deceased carried
on grain and money lending business. The
appellants Manna and Munai are real
brothers. Their mother and wife of
deceased Ramghulam were cousin sisters.
For that reason the deceased had once
expressed his eagerness to give his
property to the accused Manna. After a
few years, when deceased found that the
character of Manna was not good, he
changed his idea of giving his property to
him and further expressed a desire to give
his entire properties to his daughter Smt.
Sonkali.
Since
the
house
of
the
complainant Chhotey Lal was not far
away from the house of the deceased and
the deceased was living all alone in his
house, the latter used to visit the residence
of former very often. On 19.8.1979 at
about 8.00 P.M. the complainant Chhotey
Lal was informed by Ramesh, Nanhe
Singh and Sheopal that the accused
appellants Manna, Munai and Ram Prasad
alongwith 3 other accused persons named
in the F.I.R. were getting0.00" loaded
gunny bags full of grains belonging to the
deceased, on a truck. The grain bags were
taken out from the residence of the
deceased but neither he nor his daughter
Son Kali was present there. Ramesh,
Nanhe and Sheopal asked the accused as
to why they were carrying the grain bags
but they did not reply. They also did not
answer the queries put to them regarding
whereabouts of the deceased. Therefore,
the trio got suspicious, went to the
residence of the complainant and narrated
to him everything they had seen. An
alarmed complainant alongwith Ramesh,
Nanhe Singh and Sheopal came to the
residence of deceased where he found that
the truck had already left that place and
the main door of the house of the
deceased was found locked from outside.
Since the complainant failed to trace out
the key, he managed to get a ladder and
by scaling the wall of the house of the
deceased, got inside. He found there that
all the household articles were scattered
and it was giving an appearance that a
loot or theft had taken place in that house.
The deceased Ramghulam was not found
inside the house. The complainant went to
the police station the next morning and
lodged an F.I.R. On inquiry it was found
that the deceased was not seen in his
village since last 5 ? 6 days. Sonkali was
informed of the incident who came to her
father's house. She too had no information
about the whereabouts of her father.
During the course of investigation the I.O.
arrested the accused Munai who, when
interrogated, delivered the key of the
main door of the house of the deceased.
On further interrogation he admitted that
he
alongwith
co-accused
killed
Ramghulam and thereafter stole utensils,
ornaments, food grains and other articles
from the house of the deceased. The
appellant Munai further informed the
police that bags of grains were taken
away by rest of the appellants to Lucknow
in order to sell the same. The I.O. rushed
to Lucknow and on 20.3.1979 he arrested
the appellants Manna and Ram Prasad
who were trying to sell the bags
containing grains. All the bags bore name
2 All] Manna and others V The State of U.P
613
of the deceased. The I.O. recovered 56
bags Arahar and one bag full of mustered
from the possession of these two
appellants. The I.O. also succeeded in
tracing the truck and its driver. The driver
has been produced as a witness in this
case. When the appellants Manna and
Ram Prasad were interrogated they also
admitted that they alongwith Munai had
eliminated Ram Gulam and after killing
him they had dumped his dead body in the
nearby river after tying the same with two
pitchers with a view that the dead body
would settle down at the bottom of the
river due to the weight of the pitchers and
the water filled in it. On the pointing out
of Manna on 21.3.1979 the dead body of
the deceased was recovered from the
river. It was identified by the daughter of
the deceased. The post mortem was
conducted and a report was prepared.

3.

After
concluding
his
investigation, the I.O. submitted a chargesheet in the court of learned Magistrate
against all 6 accused persons named in the
F.I.R. including the appellants.

4. Charges under Section 460 and
201 I.P.C. were framed against all the 6
accused persons. The prosecution had
examined as many as 10 witnesses.

5. PW-1 Shiv Pal Singh is a witness
of fact who had informed Chhotey Lal
that the accused persons named in the
F.I.R. were getting loaded gunny bags full
of grains on a truck at the residence of the
deceased. PW-2 is the complainant
Chhotey Lal. PW-3 Bhoora and PW-8
Kanshi Ram are the witnesses before
whom the dead body of the deceased was
recovered at the pointing out of the
appellant Manna. PW-4 is Sonkali,
daughter of the deceased. PW-5 Awadh
Ram is the witness before whom bags
containing Arahar and mustered were
recovered from the possession of the
appellants. PW-6 Babu Lal is the driver of
the truck upon which the grain bags were
carried from the residence of the deceased
to a grain market at Lucknow. PW-7 Raj
Bahadur Singh is the witness before
whom the key of main door of the
deceased and certain stolen utensiles were
recovered from the residence of the
appellant Munai. PW-9 Shiv Murti Singh,
S.O., is the investigating officer of the cae
and PW-10 Dr. J.K. Verma had conducted
the post-mortem.

6. The trial of the case was
concluded and the learned Addl. Sessions
Judge vide his judgm0.00"ent and order
impugned in this appeal acquitted Maiku,
Ramdeen and Shrawan but he found the
appellants Munai, Manna and Ram Prasad
guilty of the offences charged and
convicted them as has been mentioned
earlier in this judgment. Feeling aggrieved
by the judgment and order the present
appeal has been filed.

7. We have heard learned counsel
for
the
appellants
and
learned
Government Counsel for the State.

Learned counsel for the appellants
has assailed the charges framed by the
learned trial court against the appellants.
It has been submitted from the side of the
appellants that there is no evidence on
record which may justify the conviction
of the appellants under Sections 460
I.P.C. and also 201 I.P.C. It has been
further submitted that there is no evidence
on record which may indicate that any
one has seen the incident of theft or that
of murder of the deceased. It has also
been submitted that it is a case of
614 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
circumstantial
evidence
and
many
important links are missing in the matter.
It has been further contended by learned
counsel for the appellants that no charge
has been framed against the appellants
under Section 302 I.P.C. or 411 I.P.C. or
under any section relating to theft. In
these circumstances it has been submitted
that it was not possible at this stage to
analyze the evidence available on record
so as to hold the appellants guilty of
murder, theft or for the offence under
Section 411 I.P.C.

8. At this stage the learned
Government Counsel has said that on the
basis of the statement of the witnesses as
contained in the case diary and other
material available on record, the learned
lower court should have framed charges
under Section 302, 457, 380 and 411
I.P.C. also. Since it has not been done so,
it is a fit case in which the case should be
remanded back to the court of learned
Sessions Judge concerned to frame proper
charges in the case and a fresh trial is
needed in the interest of justice. It has
been further contended from the side of
the State that only by lapse of time no
guilty should be allowed to go scot-free in
the cases of heinous offences.

9. Replying to these contentions as
advanced by learned State Counsel,
learned counsel for the appellants has said
that it is a very old case and if the case is
remanded back, the appellants shall suffer
unnecessarily and they will face hardship
in the matter. He has further said that it is
a case in which the learned trial court
should have recorded an order of acquittal
because there is no evidence in this case
which may prove the offence under
Section 460/201 I.P.C.

10. In our opinion, the argument
advanced by learned counsel for the
appellants is not acceptable. The date of
incident is 20.8.1979 and the concerned
sessions trial was decided on 11.12.1981.
The appeal was filed in the year 1981. It
means the matter reached the stage of
appeal just in a short period of 2 years
from the date of the alleged offence and
due to heavy pendency in the High Court,
the appeal could not be taken up for
hearing prior to this date. Thus, there is no
fault on the part of the State in the matter.
There has been no delay on its part.
Besides, it is the duty of the trial court to
frame charges correctly and if an illegality
or error has been committed by the trial
court, it is the duty of the appellate court
to set the matter right.

11. We have gone through the case
diary.

12. In the instant case there has been
extra
judicial
confessions
of
the
appellants regarding their involvement in
the murder of the deceased. On the
pointing out of one of the appellants, the
dead body of the deceased was recovered
from the bed of the river. On the pointing
out of the appellants and informations
given by them, stolen utensils and food
grains
were
recovered
from
their
possession. The key of the main door of
the house of the deceased was found in
the possession of the appellant Munai.

13. After examining the material
available on record and the case diary, we
are of the firm view that the charges
framed by the learned trial court are
erroneous.

14. From perusal of the F.I.R., the
statements of the witnesses recorded
2 All] Manna and others V The State of U.P
615
under Section 161 Cr.P.C. and charges
framed against the appellants by the
learend lower court, prima facie an
involvement of more than four persons
appears to be there in the entire matter. In
the instant case the learned lower court
has framed charges under Section 460 and
201 I.P.C. only.

15. To recapitulate the facts and
keeping them in a nutshell, at the cost of
repeatation, we have to say that it appears
that more than four persons may be
involved in the entire episode of theft,
killing of Ram Gulam and disposing of
his dead body with a view to eliminate the
evidence.
In
the
instant
case
the
allegations of theft, carrying away the
stolen property, killing of Ram Gulam,
disposal of stolen properties and disposal
of dead body stealthily with illegal
intentions are there on record.

16. A perusal of Section 460 I.P.C.
reveals that if at the time of the
committing of lurking house-tresspass by
night or house breaking by night, any
person
guilty
of
such
offence
if
voluntarily causes or attempts to cause
death or grievous hurt to any person,
every person involved in committing such
lurking house-tresspass by night or housebreaking by night, shall be punished
under this section.

17. The language of this section
clearly indicates that the ingredients of
this section are confined to commission of
lurking house-tresspass by night or housebreaking by night only. This section does
not speak anything about commission of
theft or causing injury or grievous injury
or death of a person while committing
theft.

18. According to Section 390 of
Indian Penal Code, theft becomes
robbery if, in order to the committing of
the theft, or in committing the theft, or in
carrying away or attempting to carry away
property obtained by the theft, the
offender, for that end, voluntarily causes
or attempts to cause to any person death
or hurt or wrongful restraint, or fear of
instant death or of instant hurt, or of
instant wrongful restraint.

19. In the case before us it is evident
that fact wise allegations are there that a
theft was committed by all the accused
peresons in the residential house of Ram
Gulam. The over all perusal of the case
diary and the statements of the witnesses
of facts under Section 161 Cr.P.C. also
indicate that allegations are also there that
murder of Ram Gulam was committed
during the course of theft either by all the
accused persons named in the F.I.R. or
with the active help and connivance of all
of them. Therefore, in the instant case the
offence of theft is converted into an
offence of robbery. Since there is an
involvement of more than four persons,
robbery has become dacoity. A murder
has been allegedly committed in the case
therefore, offence becomes an offence
which is punishable under Section 396
I.P.C. Thus, prima facie in the instant case
an offence of dacoity with murder also
appears to have taken place.

20. The law relating to framing of
charges is clear. If allegations are there,
the charges should be framed in graver
sections so that in a case if it is found that
an offence having lesser gravity has been
committed, a conviction can be recorded
under appropriate section of the relevant
Act but reverse is not possible. Charges
should also be framed in the alternative.
616 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
As mentioned above, an offence punishable
under Section 460 I.P.C. does not relate to an
offence relating to theft or robbery. To
punish an accused under Section 460 I.P.C.,
it is sufficient if it is proved against him that
he committed murder of a person while he
was committing lurking house-tresspass by
night. There may be an incident where a
murder is committed by some persons while
committing lurking house tresspass by night
or breaking-house by night but no theft or
robbery could be committed, and there may
be an incident where another murder may be
committed while committing theft or while
taking away the articles received by theft. In
the latter case, a charge cannot be allowed to
be confined to one under Section 460 I.P.C.
only. Another charge under Section 394
readwith Section 302 I.P.C. or in appropriate
cases a charge under Section 396 I.P.C. or
Section 412 I.P.C. must also be framed.
Charges are framed on the basis of the
allegations available in the case diary. It is
something different whether prosecution
succeeds in proving those charges or not.

21. On the basis of the above
discussion, we are of the view that learned
lower court has committed an error in
framing the charges under Section 460/201
I.P.C. only. He should have framed charges
regarding murder of the deceased and
disposing of his dead body stealthily in order
to cause disappearance of evidence and while
framing such charges, he should have also
considered the circumstances which are
indicative of the offences relating to theft,
robbery or dacoity and should have also
framed charges regarding these offences.

22. On the basis of the above
discussion, we are of the view that the appeal
should be allowed.

23. The appeal is allowed. The
judgment and order dated 11.12.1981 passed
by learned II Additional Sessions Judge,
Hardoi in S.T. No. 223/80 impugned in this
appeal is set aside. The case is remanded
back to the learned Sessions Judge, Hardoi.
We direct the learned lower court to study
the entire case diary attentively. It is left to
the discretion of the lower court to frame
charges afresh against the accused persons in
appropriate sections after hearing the
prosecution and accused persons of the case.
After framing of the charges, the trial shall be
concluded as the earliest possible as the case
is very old.

24. The learned Sessions Judge may
either decide the case himself or may transfer
it to a court competent to decide it.

The appellants are on bail. They are
required to file fresh bail bonds to the
satisfaction of learned Sessions Judge. The
appellants are directed to appear on 5.7.2010
before the learned Sessions Judge, Hardoi
and file fresh bail bonds so that their
presence before the trial court during the
course of trial is ensured.

Office is directed to send back the
lower court record forthwith the learned
District & Sessions Judge, Hardoi.
---------
2 All] Ajai Kumar Singh V State of U.P and others
617
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.06.2010

BEFORE
THE HON'BLE DHARAM VEER SHARMA, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Writ Petition No. 1093 of 2006

Ajai Kumar Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Constitution
of
India-Art.226-Public
Interest
Litigation-by
a
Practicing
Advocate-Locus-Standi-Nothing
on
record causing loss to public exchequercan helping the builders-misconceived
petition by an Advocate-inspite of time
granted No rejoinder affidavit field-heldconduct of petitioner itself makes disentitled to maintain the petition-as
matter referred to Bar Council for
appropriate action against petitioner-No
monitory penality required.

Held: Para 41 & 42

Thus having regard to the contents of
paragraphs 7 to 11 referred to above it
transpires that there is not even an iota
of evidence to prove that respondents
caused any loss to the public exchequer
or they acted in a fashion to help
bidders. Curiously enough no bidder has
come forward to challenge the entire
transaction and the petitioner who is not
aggrieved
person
has
assailed
the
auction of the respondents without any
locus on an economic matter which is
not in violation of any rule.

Thus this petition has not been filed with
clean
hands.
The
conduct
of
the
petitioner dis-entitles him to maintain
the petition. However, we find that the
petitioner who is an Advocate should not
have filed this writ petition. The matter
is referred to the Bar Council of U.P. for
appropriate
decision
in
the
matter.
Accordingly, no monetary penalty is
required to be imposed against the
petitioner for filing this petition.
Case law discussed:
(2002) 2 SCC 333, (2009) 7 SCC 561, (2004) 3
SCC 349, 2005 (1) SCC 590, 2010 AIR SCW
1029, 1981 Supp SCC 87, (1982) 2 SCC,
(1992) 4 SCC 494, (1992) 4 SCC 494, 1980, 1
SCC 81, 1979, 4 SCC 167, (2003) 6 SCC
230,(2002) 2 SCC 333, (1987) 2 SCC,295 this
Court held:(SCC pp 334-35,para 61), (1992) 4
SCC 305 this Court opined: (SCC p. 348, para
109), (2000) 10 SCC 664 it was held: (SCC
pp.762-63, paras 229 & 232), (1998) 8 SCC
143 it has been held: (SCC pp. 152-53, para
28), (1992) 4 SCC 305, (1993) 1 SCC 561,
(1992) 4 SCC 305: 1993 SCC (Cri) 36, (2009)
7 SCC 561, AIR 2001 SCC 1739, AIR 2005 SC
540, (2002)2 SCC 333, AIR 2003 SC 1344

(Delivered by Hon'ble Dharam Veer Sharma, J.)

1. The instant writ petition designed
and styled as Public Interest Litigation
has been filed by the petitioner Ajai
Kumar Singh, a Practicing Advocate. It
is directed against the auction of certain
commercial plots situate at Vibhuti
Khand,
Gomti
Nagar
Scheme
of
Lucknow Development Authority. The
petitioner has prayed for quashing of the
allotment as held in pursuance of the
auction notices. It is further prayed that a
writ in the nature of mandamus be issued
commanding the respondents to stop
constructions on the allotted lands and a
direction may be issued to the C.B.I. to
inquire into the matter and submit its
report to this Court.

2. The petitioner has come with a
case that as a practising Advocate he has
opportunity of interacting with people
belonging to different walk of life and
incidentally he met some prospective
bidders of the land in question who have
filtered out certain informations which
reveals
deliberate
activities
of
the
respondents with an ulterior motive to