# Munesh & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 10 ILRA 1009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** Criminal Revision No. 2828 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munesh-ors-revisionists-v-state-of-u-p-anr-49251
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 201 - Code of Criminal
Procedure,1973 - Section 216 - Against
dismissal of alteration of charge - FIR
dated 01.04.2022 under Section 364 IPC
alleges that informant's brother went
missing on 29.03.2022 - He was in regular
contact with accused persons, who are
suspected to know his whereabouts -
Although charge sheet was filed under
Section 306
IPC, trial court framed
charges on 07.07.2022 - This decision was
based on witness St.ments, including that
of deceased's mother and other witnesses,
which
indicated
that
accused
had
threatened deceased and later drowned
him, disposing of body in Yamuna river -
Criminal
revision
against
framing
of
charges dismissed, granting liberty to
seek alteration under Section 216 Cr.P.C. -
Rejected - In Vibhuti Narayan Chaubey
(infra), Court held that once charge is
framed, it must lead to either acquittal or
conviction - Charge can be withdrawn
under Section 224 Cr.P.C. after judgment -
Section
216
Cr.P.C.
allows
only
for
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
alteration, not deletion of charges - Thus,
deletion of framed charge impermissible
under said Section. (Para 3, 9, 10, 13)

Revision dismissed. (E-13)

List of Cases cited:

## Text

10 All. Munesh & Ors. State of U.P. & Anr.
1009
together by the same court irrespective of
the nature of the offence involved. The
rational behind this is to avoid the
conflicting judgments over the same
incident because if cross cases are allowed
to be tried by two courts separately there is
likelihood of conflicting judgments."

In this case it has also been
emphasized by the Apex Court that the
investigating officer in cross-cases should
be the same.

(d)
Further
this
Court
has
observed in the matter of Pradeep Kumar
Dubey Vs. State of U.P. And Another,
Application U/S 482 Cr.P.C. No. 20241
of 2021 that in an event of cross-cases both
the cases should be tried by the same Court
to avoid technical and other difficulties
arising out of the order of one and another.

22. Therefore, it is imperative to issue
a direction to all the criminal courts of the
State of U.P. to decide the cross-cases
together after recording the evidence.

23. On the basis of above, this Court
is of the view that the prosecution has
miserably failed in proving the charge
against the opposite party nos.2 to 5
beyond reasonable doubt. Therefore, the
order of acquittal passed in favour of the
opposite party nos. 2 to 5 is just and proper
and needs no interference by this Court in
exercise of its revisional jurisdiction.

24. Accordingly, this revision being
devoid of merit is dismissed. The impugned
order of acquittal is affirmed.

25. The Registrar General of this
Court is directed to circulate the directions
contained in paragraphs 19, 21 & 22 of
the judgment to all the criminal courts of
the State of U.P. for compliance
----------
(2023) 10 ILRA 1009
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 2828 of 2023

Munesh & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Shiv Badan

Counsel for the Respondents:
G.A., Sri Pankaj Kushwaha, Sarika

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34 & 201 - Code of Criminal
Procedure,1973 - Section 216 - Against
dismissal of alteration of charge - FIR
dated 01.04.2022 under Section 364 IPC
alleges that informant's brother went
missing on 29.03.2022 - He was in regular
contact with accused persons, who are
suspected to know his whereabouts -
Although charge sheet was filed under
Section 306
IPC, trial court framed
charges on 07.07.2022 - This decision was
based on witness St.ments, including that
of deceased's mother and other witnesses,
which
indicated
that
accused
had
threatened deceased and later drowned
him, disposing of body in Yamuna river -
Criminal
revision
against
framing
of
charges dismissed, granting liberty to
seek alteration under Section 216 Cr.P.C. -
Rejected - In Vibhuti Narayan Chaubey
(infra), Court held that once charge is
framed, it must lead to either acquittal or
conviction - Charge can be withdrawn
under Section 224 Cr.P.C. after judgment -
Section
216
Cr.P.C.
allows
only
for
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
alteration, not deletion of charges - Thus,
deletion of framed charge impermissible
under said Section. (Para 3, 9, 10, 13)

Revision dismissed. (E-13)

List of Cases cited:

1. Nallapareddy Sridhar Reddy Vs St. of Andhra
Pradesh & ors., 2020 AIR(SC) 75 (Para 20)

2. Ashish Kumar & anr. Vs St. of U.P. & anr.,
2015 0 Supreme (All) 580 (Para 13)

3. Vibhuti Narayan Chaubey @ Lala Vs St. of
U.P., 2003 CriLJ 196

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionist, learned counsel for the private
respondent and learned A.G.A. for the State
and perused the record.

2. Instant criminal revision has been
preferred against judgment and order dated
24.3.2023
passed
by
Special
Judge,
DAA(Dacoity Affected Area)/Additional
District and Sessions Judge, Hamirpur,
whereby application 14Kha moved by
accused under Section 216 Cr.P.C, for
alteration of charge has been dismissed.
This case has arisen out of Case Crime No.
87 of 2022, under Section 302/34, 201 IPC,
P.S. Kurara, District Hamirpur.

3. From perusal of record it appears
that F.I.R. in present case was lodged by
respondent no. 2 on 1.4.2022 under Section
364 IPC with averment that his brother
Pradeep @ Jwaladeen went missing on
29.3.2022 since 8:00 pm. He was in
constant contact with accused Munesh and
Chhuttan who were having intimacy with
his missing brother. He suspects that
Munesh and Chhuttan would be aware of
the whereabouts of his missing brother.

4. Police started investigation in the
case and recorded statements of the
informant Kamta Prasad. Dead body of the
missing person was recovered on 2.4.2022
and the information in this regard was
entered in G.D. of P.S. concerned on
2.4.2022 at 9:20 hours. Inquest on dead
body of the deceased was carried out. Dead
body was found on the bank of Yamuna
river, near Mauli canal pump, which was in
advanced stage of decomposition. Postmortem of the dead body was conducted by
the Dr. Umakant, who opined that time of
death was three days prior to post-mortem.
Cause of death was asphyxia as a result of
ante-mortem
drowning.
Investigating
Officer recorded statements of Ahilya
Devi, mother of deceased, and Kuldeep,
brother of the deceased and Suryapal and
on the basis of statement of witnesses, postmortem report of the deceased and C.D.R.
of
deceased
and
accused
persons,
concluded that deceased was used to
converse with neighbour Roshni Yadav,
daughter of Chunna Yadav, till the date
when he went missing. Shailendra who is
brother of Roshni, was very much enraged
to this and he went for search of Pradeep
(deceased) to his place along with accused
Munesh, Chhote and Rakesh and stated to
his family members that Pradeep will have
to face dire consequences. Deceased got
scared about threats given by accused
persons. He converted the offence under
Section 306 IPC and ultimately chargesheet
was filed against revisionist accused
persons under Section 306 IPC on the basis
of statements of witnesses recorded under
SEctions 161 Cr.P.C. and the C.D.R..
However, at the stage of commencement of
trial, learned trial court after hearing
submissions of D.G.C. (Criminal) on behalf
10 All. Munesh & Ors. State of U.P. & Anr.
1011
of State and learned counsel for the
accused, found this case under Section
302/34 and 201 IPC and framed charges
against accused persons for offence under
Section 302/34 and 201 IPC. Accused
persons are said to have been enlarged on
bail for enhanced penal sections for which
they were charged by the trial court.
Accused filed a petition before this Court
under Section 482 Cr.P.C. against framing
of charge against them under Sections
302/34 and 201 IPC which was later on
converted into Crl. Revision No. 4428 of
2022. The said criminal revision was
disposed of by this Court by order dated
22.12.2022 with observation that applicant
has remedy to move an application under
Section 216 Cr.P.C. for alteration of
charge. Consequent upon said observations
of this Court, accused persons moved an
application under Section 216 Cr.P.C.
before trial court on 23.1.2023 and said
application was dismissed by trial court by
impugned order.

5. Learned counsel for the revisionist
submitted that learned trial court framed
charges against accused under Sections
302/34 IPC and 201 IPC without sufficient
material, whereas chargesheet was filed for
charge under Sections 306 IPC only by the
investigating officer. He next submitted
that during investigation no such material
could be collected against accused persons
to connect them for said charges.

6. Learned trial court has rejected the
application for alteration of charge without
cogent and plausible reasons, therefore,
impugned order is bad in the eye of law and
not sustainable. Learned trial court failed to
consider this fact that accused persons were
falsely implicated in the case only on
account of village partibandi. Although,
accused persons were chargesheeted under
Section 306 IPC by the investigating
officer, yet there is no material which could
suggest even the charge of abatement to
commit suicide on the part of accused
persons. Application under Section 216
Cr.P.C. was moved by revisionist on
directions of this Hon'ble Court.

7. Per contra, learned A.G.A. and
learned counsel for the respondent no. 2
submitted that there was no occasion for
the deceased to commit suicide. Accused
caused his death by forcibly make him
drowned in the river. They have left the
dead body on the bank of river Yamuna
near Mauli canal pump. There is no
illegality in impugned order passed by
court below. Accused persons are facing
trial for those charges and they have been
enlarged on bail in enhanced charges and
once the charge has been framed, the case
should be disposed of on merits on the
basis of evidence adduced during trial. In
inquest report, police has found a rope
around his neck.

8. Smt. Ahilya Devi, mother of the
deceased, in her statement recorded under
Section 161 Cr.P.C. has stated that on
29.3.2022 at around 3:30 hours, her son
Pradeep had gone to the agricultural field
along with Poonam to work therein. Her
neighbour Shailendra, his cousin Rakesh,
friend Munesh and Kalka Yadav came to
her house and Shailendra asked about
Pradeep @ Jwala and stated that he speaks
too much with his sister Roshni and he has
caught Roshni speaking on telephone with
Pradeep @ Jwala. He will not tolerate this.
He will ask this to Jwala @ Pradeep and if
he did not mend his ways, he would set him
right and will not permit to live. He will
also lodge a report on behalf of his sister
against him regarding teasing her. Her son
Pradeep @ Jwala came back to home after
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
Sunset and went after some time in search
of his goat. Munesh telephoned him and
came to know that goat was traced and her
younger son brought the goat back to home
but her son Jwala @ Pradeep did not come
back and his dead body was found on next
day on 2nd of April at the bank of Yamuna
river. Her son committed suicide by
drowning in the river being hurt and afraid
of threatening given by Shailendra and
other accused persons. Similar statement
was given by Kuldeep, younger brother of
the deceased and Suryapal.

9. Chargesheet in the case was filed
under Section 306 IPC but learned trial
court has framed charge against the
accused under Section 302/34 and 201 IPC
by order dated 7.7.2022 wherein learned
trial court has stated that D.G.C. (Criminal)
has submitted that in statement of mother
of the deceased as well as witness
Suryapal, this fact has emerged that
accused
persons
had
threatened
the
deceased with life on the date of incident
and the circumstances suggest that accused
persons acting conjointly drowned the
deceased to death and thus, committed his
murder and dead body was thrown in a canal
pump in Yamuna river.

10. The criminal revision filed by the
revisionist against framing of charge under
Section 302/34 and 201 IPC has been dismissed
by this Court giving liberty to the revisionist to
move an application for alteration of charge
under Section 216 Cr.P.C.

11. Hon'ble Apex Court in Nallapareddy
Sridhar Reddy v. State of Andhra Pradesh
and Ors., 2020 AIR(SC) 75, has observed in
paragraph no. 20 as follows:-

"20 From the above line of
precedents, it is clear that Section 216 provides
the court an exclusive and wide-ranging power
to change or alter any charge. The use of the
words ?at any time before judgment is
pronounced? in Sub-Section (1) empowers the
court to exercise its powers of altering or
adding charges even after the completion of
evidence, arguments and reserving of the
judgment. The alteration or addition of a
charge may be done if in the opinion of the
court there 15 (2013) 7 SCC 256 was an
omission in the framing of charge or if upon
prima facie examination of the material
brought on record, it leads the court to form a
presumptive opinion as to the existence of the
factual ingredients constituting the alleged
offence. The test to be adopted by the
court while deciding upon an addition
or alteration of a charge is that the
material brought on record needs to
have a direct link or nexus with the
ingredients of the alleged offence.
Addition
of
a
charge
merely
commences the trial for the additional
charges, whereupon, based on the
evidence, it is to be determined
whether the accused may be convicted
for the additional charges. The court
must exercise its powers under Section
216 judiciously and ensure that no
prejudice is caused to the accused and
that he is allowed to have a fair trial.
The only constraint on the court?s
power is the prejudice likely to be
caused to the accused by the addition
or alteration of charges. Sub-Section
(4)
accordingly
prescribes
the
approach to be adopted by the courts
where prejudice may be caused."

12. Learned counsel for the
revisionist
placed
reliance
on
a
judgment of Hon'ble Apex Court in
Ashish Kumar and another v. State
of
U.P.
and
another,
2015
0
Supreme (All) 580, wherein this Court
10 All. U.P. State Road Transport Corp., Lucknow & Ors. Jagdamba Singh & Ors.
1013
while deciding the Crl. Misc. Application
u/s 482 Cr.P.C., has observed in paragraph
no. 13 as under:-

"13. But the instant matter arises
out of a case which is based on a police
report as a first information report had
been lodged before the police at Deesa
Police Station under Section 154 CrPC
and, therefore, the investigation was
conducted by the police authorities in terms
of procedure prescribed under Chapter XII
CrPC and thereafter charge-sheet was
submitted. At this stage, the Chief Judicial
Magistrate after submission of the chargesheet appears to have entertained an
application of the complainant for addition
of three other sections into the chargesheet, completely missing that if it were a
complaint case lodged by the complainant
before the Magistrate under Section
190(1)(a) CrPC, obviously the Magistrate
had full authority and jurisdiction to
conduct enquiry into the matter and if at
any stage of the enquiry, the Magistrate
thought it appropriate that other additional
sections also were fit to be included, the
Magistrate
obviously
would
not
be
precluded from adding them after which
the process of cognizance would be taken
by the Magistrate and then the matter
would be committed for trial before the
appropriate court."

13. This Court in Vibhuti Narayan
Chaubey Alias....v. State of U.P, 2003
CriLJ 196, while dismissing a petition
against order passed on application under
Section 216 Cr.P.C., by the accused
persons to alter the charge under Section
307/34 IPC to Section 324/34 IPC observed
that once the charge is framed the case will
result, either in acquittal or in conviction in
accordance with the provisions of trials
prescribed under Chapter 18, 19 and 20 of
the Cr.P.C. The charge can be withdrawn
under Section 224 of Cr.P.C., only after
judgment and it cannot be deleted. The
word "alter" has not been used in Section
216 Cr.P.C. and therefore, charge once
framed cannot be deleted. Section 216
Cr.P.C. does not provide for deletion of
charge. The word "delete" has intentionally
been not used by the legislature.

14. In the light of foregoing
discussion and judicial authorities cited
above, I find no legal justification to
interfere in the impugned order passed by
learned court below, whereby application
under Section 216 Cr.P.C. moved by
revisionist for deletion of charge under
Section 302/34 and 201 IPC has been
dismissed.

15. Revision stands dismissed with
above observations.

----------
(2023) 10 ILRA 1013
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2023

BEFORE

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

First Appeal From Order No. 574 of 1997

U.P. State Road Transport Corp., Lucknow
& Ors. ...Appellants
Versus
Jagdamba Singh &Ors. ...Respondents

Counsel for the Appellants:
Sri Avanish Mishra, Sri Lal Dhari Rajbhar,Sri
Mritunjay Sahai

Counsel for the Respondents:
Sri Prabodh Gaur, Sri S.D. Ojha