# Munendra (In Jail) v. State of U.P - **Citation:** (2020) 6 ILRA 1098 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-02-24 - **Case number:** Criminal Appeal No. 3461 of 2018 - **Bench:** Ajit Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munendra-in-jail-v-state-of-u-p-45751 - **Pages:** 4 ## Headnote Criminal Law-Indian Penal Code, 1860Sections 307 and 504- Appeal against conviction. Benefit of undergone- Conviction upheld sentences reduced to the period of imprisonment has already undergone. Criminal Appeal partly allowed. (E-2) List of cases cited:- ## Text 1098 INDIAN LAW REPORTS ALLAHABAD SERIES witnesses Baba Singh P.W.-2 and Vimal Singh P.W.-3 (friends of deceased) which is not found reliable in absence of corroboration by some independent evidence. As per F.I.R. averments made in F.I.R. occurrence was seen by several others apart from Baba Singh and Vimal Singh but no one has been produced for corroboration of P.W.-2 and P.W.-3. It is also noteworthy that there is no evidence of fetching of deceased by appellants and even the eggs or liquor vendors were not produced, who were best witnesses of deceased being in company of appellants. 28. The recovery of clothes and shoes of deceased and finding of human blood on his scarf as per report of forensic lab, also does not give any support to prosecution case with regard to involvement of appellants in commission of murder of Santosh. The recovery of fire arm from appellant Sunil Singh after four days of incident, from an open place is highly doubtful and may not be relied in absence of any independent witness of recovery. 29. In view of the discussions made above, we have come to the conclusion that prosecution has failed to prove the charges levelled against accused persons under Section 302/34, 201 I.P.C. or Section 25 Arms Act by any reliable, cogent and independent evidence to the hilt beyond reasonable doubts. For the reasons mentioned in preceding paras, considering the possibility of murder of deceased by unidentified culprits in the darkness of night and false implication of appellants, in belated F.I.R. due to enmity and suspicion it will not be safe to base conviction of appellants on self contradictory, interested, and uncorroborated testimony of P.W.-2 Baba Singh and P.W.-3 Vimal Singh and accused appellants are entitled to the benefit of doubt. The learned trial Court has acted wrongly, illegally and incorrectly in not considering above mentioned material aspects and in believing untruthful, unreliable, interested contradictory and uncorroborated testimony of P.W.-2 and P.W.-3. in holding the appellants guilty. The impugned judgment and order of conviction of appellants and sentence is liable to be set aside and appeal is liable to be allowed. 30. The appeal is allowed and impugned judgment and order of conviction and sentence is set aside. The accused appellants Sunil Singh @ Lambari and Deepak are acquitted of the charges under Section 302/34, 201 I.P.C. and accused appellant Sunil Singh @ Lambari is also acquitted of the charges under Section 25 Arms Act. The accused appellants are on bail, they need not surrender unless wanted in some other case and subject to furnishing of personal bond and two sureties of like amount to the satisfaction of trial Court, by each of them, in view of provisions of Section 437 A Cr.P.C., to appear before higher Court as and when such Court issue notices in respect of any appeal or petition filed against the judgment. ---------- (2020)06ILR A1098 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 24.02.2020 BEFORE THE HON'BLE AJIT SINGH, J. Criminal Appeal No. 3461 of 2018 6 All. Munendra Vs. State of U.P. 1099 Munendra ...Appellant (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Appellant: Sri Umesh Chandra Tiwari Counsel for the Opposite Party: A.G.A. Criminal Law-Indian Penal Code, 1860Sections 307 and 504- Appeal against conviction. Benefit of undergone- Conviction upheld sentences reduced to the period of imprisonment has already undergone. Criminal Appeal partly allowed. (E-2) List of cases cited:- 1. B.G. Goswami Vs Delhi Administration, 1973 AIR 1457 (Delivered by Hon'ble Ajit Singh, J.) 1. This criminal appeal has been filed against the judgement and order dated 13.3.2018 passed by Addl. Sessions Judge, Court no. 1, Budaun in S.T. No. 472 of 2014 (State vs. Munendra and others), under Sections 307 and 504 I.P.C., P.S. Bisauli, district-Budaun, whereby learned Judge convicted and sentenced the appellant to seven years rigorous imprisonment with fine of Rs. 3000/- and in default of payment of fine further additional imprisonment for six months, one year rigorous imprisonment under Section 504 I.P.C. with a fine of Rs. 1000/- and in default of payment of fine, further additional imprisonment for one month. 2. Both the sentences shall run concurrently. 3. The prosecution story in brief is that on 14.6.2014 the complainant along with his other family members had returned back from the 'Lagun ceremony' of his daughter Vimlesh and his other daughter Kanti had come from her inlaws house to attend the marriage. On 15.6.2014 all the family members were present at home in preparation for the marriage ceremony, then resident of same village Munendra son of Amar Singh who was armed with firearm started abusing them. Along with Munendra, the residents of same village namely, Mahipal and Amar Singh, son of Natthu, who were having firearms in their hands also came before us and started abusing. When they objected for abusing then at about 6:00 p.m. Munendra started firing with intention to kill and the shot fired by him hit Kanti, as a result of which she collapsed on the 'kharanja'. The incident was witnessed by Gaurav Kumar, Arvind, son of Chatrapal, Dinesh, son of Munshi and several others. All the accused persons after firing ran away towards fields. 4. At the very outset, Sri Umesh Chandra Tiwari, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgement and order on its merits. He, however, prayed for modification of the order of the sentence. 5. Learned counsel for the appellant has submitted that at the time of incident the accused was aged about 23 years at present the accused is more than 29 years of age. He is a married person and having children and there is no bread earner in the family of the appellant. He has next submitted that it was the first offence of the accused and after conviction the 1100 INDIAN LAW REPORTS ALLAHABAD SERIES accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the family status. Learned counsel for the appellant further submits that the appellant was awarded rigorous imprisonment of seven years and that he has already undergone two years before conviction and more than three years after conviction, meaning thereby that he has undergone about five and half years of the awarded sentence. 6. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under: "Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same." 7. Considering the facts and circumstances of the case and the substantive period already served in jail by the appellant in this case and the fact that the appellant is young person and he is the only bread earner in the family and that he might have realized the mistake committed by him and might remorseful of his conduct to the society to which he belongs, I am of the considered opinion that he should be given a chance to reform himself and he be allowed to give better contribution to the society to which he belongs to. 8. Considering the fact that the accused has already served more than five and half years imprison and it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be enhanced. 6 All. Imshad Vs. State of U.P. 1101 9. Considering all the facts and circumstances of the case, the accusedappellant is sentenced to the period already undergone by him in jail during trial and after conviction an amount of fine of Rs. 4000/- be enhanced to Rs. 10,000/-. 10. Accused-appellant is directed to deposit the fine of Rs. 10,000/- before learned lower court at the time of applying for release order, out of which Rs. 9000/- shall be paid to the injured, if he/she is alive and in case he/she is dead, then it would be paid to his/her legal heirs. 11. Appeal is partly allowed in the above terms. 12. Copy of this order be transmitted to the concerned lower court forthwith for compliance. ---------- (2020)06ILR A1101 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 05.06.2020 BEFORE THE HON'BLE PANKAJ NAQVI, J. THE HON'BLE SAURABH SHYAM SHAMSHERY, J. Criminal Appeal No. 3609 of 2009 Imshad ...Appellant (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Appellant: Sri M.P.S. Chauhan, Sri Anil Kumar, Sri Amresh Bahadur Tiwari Counsel for the Opposite Party: A.G.A. A. Criminal Law-Indian Penal Code, 1860- Section 376 and Section 3(2)(V) of SC/ST Act- Appeal against conviction. Delay in lodging F.I.R.- Neither fated nor illegal. Sterling Witness The conviction in a rape case could be based on the sole testimony of the victim without corroboration, if the witness is a 'sterling witness. (Para-11) Non-examination of the Investigating Officer Does not fatal the prosecution case. (Para-14) No Test Identification Parade under section 376 IPC Would not vitiated the testimony of victim. (Para-19) Therefore modify the sentences reduced to the period of imprisonment has already undergone. (Para-29) Criminal Appeal partly allowed. (E-2) List of cases cited: - 1. Deepak Vs St. of Har. 2015 (4) SCC 762. 2. P. Rajagopal & ors. Etc. Vs St. of T.N 2019 (5) SCC 403. 3. Santosh Prasad @ Santosh Kumar Vs St. of Bihar, 2020 SCC Online SC 194. 4. St. of Karnataka Vs Bhaskar Kushali Kotharkar & ors. (2004) 7 SCC 487. 5. Mulla and Another Vs St.of U.P. (2010) 3 SCC 508. 6. Mukesh & anr. Vs St. for NCT of Delhi & Others (2017) 6 SCC 1. 7. Khuman Singh Vs St. of M.P. (2019) SCC Online 1104. 8. Bavo alias Manubhai Ambalal Thakore Vs St. of Gujarat (2012) 2 SCC 684 .