# Smt. Munni Devi v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-22
- **Case number:** Criminal Appeal U/S 372 Cr.P.C. No. 1273 of 2022
- **Bench:** Vivek Kumar Birla, Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-munni-devi-v-state-of-u-p-ors-47800
- **Pages:** 7

## Headnote

Criminal Law
- Criminal Procedure
Code, 1973 - Section - 372 - Indian
Penal Code, 1860 -Sections 201 & 302 -
Scheduled Castes and Scheduled Tribes
Prevention of Atrocities Act,1989
-
Sections 3(2) & (5) - Criminal Appeal -
against order of Acquittal - FIR - offence of
murder - prosecution has tried to show
during the course of trial that there was a
demand of repayment of loan amount on
behalf of accused persons and in that
connection
some
hot-talk
and
scuffle
between
the
accused
persons
-
but,
prosecution has utterly fails to proved the
guilt of accused persons in commission of
charged crime - prosecution has completely
failed to prove beyond doubt that accused
were committed offence - held, Appeal
stands dismissed.(Para - 20, 21)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

11 All. Smt. Munni Devi Vs. State of U.P.& Ors.
173
judgment and order dated 30.09.2020
passed by the trial Court, hence the same is,
accordingly, dismissed.
----------
(2022) 11 ILRA 173
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.09.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal U/S 372 Cr.P.C. No. 1273 of
2022

Smt. Munni Devi ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Ram Kumar Patel, Sri Nagendra Singh
Gautam

Counsel for the Opposite Parties:
G.A.

Criminal Law
- Criminal Procedure
Code, 1973 - Section - 372 - Indian
Penal Code, 1860 -Sections 201 & 302 -
Scheduled Castes and Scheduled Tribes
Prevention of Atrocities Act,1989
-
Sections 3(2) & (5) - Criminal Appeal -
against order of Acquittal - FIR - offence of
murder - prosecution has tried to show
during the course of trial that there was a
demand of repayment of loan amount on
behalf of accused persons and in that
connection
some
hot-talk
and
scuffle
between
the
accused
persons
-
but,
prosecution has utterly fails to proved the
guilt of accused persons in commission of
charged crime - prosecution has completely
failed to prove beyond doubt that accused
were committed offence - held, Appeal
stands dismissed.(Para - 20, 21)

Appeal dismissed. (E-11)

List of Cases cited:
1. Rajesh Prasad Vs St. of Bihar & anr. (2022 (3)
SCC 471),

2. Bannareddy & ors. Vs St. of Karn. & ors.
(2018 vol. 5 SCC 790),

3. Jayamma & anr. Vs St. of Karn.(2021 vol. 6
SCC 213),

4. Sharad Birdhichand Sarda Vs St. of Mah.
(1984 (4) SCC 16),

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Ram Kumar Pal,
learned counsel for the appellant and Shri
Kailash Prakash Pathak, learned AGA
representing the State and also perused the
record.

2. Present criminal appeal has been
filed challenging the judgement and order
of acquittal dated 15.10.2018 passed by
learned Additional Sessions Judge, Court
No.2/Special Judge, SC/ST Act, Kanpur
Nagar in Session Trial No.601 of 2003
(State vs. Kulveer Singh), arising out of
Case Crime No.77/2000, under Sections
302, 201 I.P.C. and Section 3(2)(5) of
SC/ST Act, P.S. Naubasta, District Kanpur
Nagar by which the learned trial Judge has
acquitted the accused-respondents Kulveer
Singh and Vasudev from the charges of
Sections 302, 201 I.P.C. and Section
3(2)(5) of SC/ST Act.

3. Before coming to the merits of the
case, it is imperative to give brief facts of
the case which have given rise to the
present appeal.

PROSECUTION STORY :

4. Sum and substance of prosecution
case mentioned in the F.I.R., which is based
174 INDIAN LAW REPORTS ALLAHABAD SERIES
on conjectures, surmises and self-belief, that
accused-respondents have committed this
offence against the husband of the informant.
Though from the F.I.R. it is clear that this is
not a case of direct evidence but the deceased
was missing since 07.01.2000 and his dead
body was recovered on 22.01.2020 in a drain
near Hamirpur Road Daskuwa. After getting
this information, the informant reached to
that place and identified the dead body. In the
F.I.R. it has been mentioned that the
informant has firm faith that the author of the
offence are Kulveer, Kayamuddin and
Vasudev are the real culprits. They used to
snatch away the money from the deceased. It
is also born out from the record that the
deceased has taken Rs.5000/- as loan from
the accused-respondents and they were
insisting to repay that amount and on this
score the present F.I.R. was lodged. The date
and time of lodging of the F.I.R. is
25.01.2000 at 14.20 hours and it was
registered as Case Crime No.77/2000, u/s
302/201 I.P.C. at Police Station Naubasta,
Kanpur Nagar.

5. Inquest report was prepared on
22.01.2000. From the dead body, a pass-book
of Punjab Sindh Bank and a spectacles were
recovered. Thereafter the autopsy of the dead
body was conducted on 23.01.2000 at around
01.30 P.M. by Dr. Satish Chandra, K.P.M.
Hospital, who found three injuries over the
deceased, viz, (i) bruise contusion with
swelling over the left ear in front of the neck,
(ii) bruise contusion in front of the neck and
(iii) bruise contusion in front of the chest and
just below the injury no.(ii). Brain was found
congested and heart was empty. Doctor has
opined that expected time of occurrence is
about one week back from the said recovery,
by strangulating the neck of the deceased.

6. After holding in-depth probe into
the matter, whereby the police has recorded
statements of as many as 10 witnesses,
charge sheet has been submitted by the
police on 27.07.2001 against accused
Kulveer Singh, Vasudev and Kayum @
Kayamuddin u/s 302, 201 I.P.C. and
Section 3(2)5 of SC/ST Act. Since all the
offences are triable by the sessions,
therefore, matter was committed to the
session court for trial. Curiously enough the
charges were also framed under the same
sections against the accused-respondents.

7. In order to establish the case,
prosecution has produced as many as 11
witnesses in the court for examination,
namely; (i) Smt. Munni Devi, wife of the
deceased and informant of the case as PW-1,
(ii) Sachin Kumar as P.W.-2, (iii) Sushma as
P.W.-3, (iv) Smt. Meena as P.W.-4, (v) Dr.
Satish Chandra as P.W.-5, (vi) Head
constable 143 Mauji Lal Mishra as P.W.-6,
(vii) P.C. Mishra, Investigating Officer as
P.W.-7,
(viii)
Shyamakant
Tripathi,
Investigating Officer as P.W.-8, (ix) B.N.
Chaturvedi, Investigating Officer as P.W.-9,
(x) Balvir Singh Chandel as P.W.-10 and (xi)
H.C.1020 Mahavir Singh- P.W.-11.

8. In addition to this, prosecution has
produced 10 documents which were exhibited
during the trial as under :

(i) Tehrir as Ex. Ka-1, (ii) Letter
sent by the deceased Ramesh Kumar to Senior
Electricity Divisional Engineer as Ex. Ka-2,
(iii) Postmortem report as as Ex. Ka-3, (iv)
Chik F.I.R. as Ex. Ka-4, (v) Copy of G.d. as
Ex. Ka-5, (vi) Report regarding destroyed
G.D. as Ex. Ka-6, (vii) Site Plan as Ex. Ka-7,
(viii) Charge sheet as Ex. Ka-8 (ix)
Panchayatnama as Ex. Ka-9 and (x) Recovery
of Pass Book and Spectacles as Ex. Ka-10.

9. Learned Trial Judge after recording
the statements of all witnesses and looking
11 All. Smt. Munni Devi Vs. State of U.P.& Ors.
175
into the matter, eventually landed to the
conclusion
that
the
prosecution
has
miserably failed to establish own case or
involvement of accused persons beyond
any iota of doubt and consequently giving
the benefit of doubt exonerated the accused
persons from the charges u/s 302, 201
I.P.C. and Section 3(2)5 of SC/ST Act.

TESTIMONY OF WITNESSES

10. The Court has got occasion to
peruse and analyze the testimonies of these
witnesses of facts. It is necessary to have a
fleeting glance on the relevant testimonies
recorded during trial.

11. In order to establish the case,
prosecution produced four witnesses of
fact, namely Smt. Munni Devi, informant
of the case who has been examined as
P.W.-1, Sachin Kumar as P.W.-2, Sushma
as P.W.-3 and Smt. Meena as P.W.-4. From
perusal of testimony of Smt. Munni Devi
(P.W.-1) indicates that she in her testimony
states that her husband was working as
Fitter in Electric Loco-shed Anwarganj and
Kulveer Singh, Kayamuddin and Vasdev
used to snatch money from him when he
used to receive his salary. Not only this, her
husband has taken Rs.5000/- as loan from
Kulveer Singh and these persons were
insisting to repay the entire loan amount.
They have overpowered the deceased and
wanted to have his signature over the pay
slip. On 7.1.2000 her husband went to
attend the duty and since then his
whereabouts was not known. She along
with her son kept on searching her husband
without complaining to any authority. A
tangent
expression
was
made
on
14.01.2000 that her husband came along
with Kayamuddin and Kulveer to C.H.O.
Cooperative Bank, Govind Nagar and it
was given to understand that thereafter her
husband was disappeared. Eventually on
22.01.2000
the
informant
got
an
information that a dead body was lying in
an abundant condition near Dasu Kuwa
(Naubasta) and was taken to the mortuary.
At mortuary she identified the dead body as
her husband. She further states that she has
all reasons to believe that on account of
loan amount Kulveer, Kayamuddin and
Vasdev have jointly assassinated her
husband, of which on 25.01.2000 F.I.R.
was registered. She also states in her
testimony that all three persons used to visit
the place of her husband quite frequently
and all of them have very congenial
relationship.
Under
circumstances,
a
million dollar question arises as to why
since 7.01.2000 to 22.01.2000 no action
was taken by the informant. P.W.-2 Sachin
almost reiterated the prosecution version
toing the line of P.W.-1, except that he too
has seen the deceased while going from
Kath Ka Pul on 7.1.2000. P.W.-3 Smt.
Sushma and P.W.-4 Smt. Meena more or
less have supported the prosecution story.

12. After assessing the entire gamut
of the facts and circumstances, learned
Trial Judge has arrived at the conclusion
that there is no material on record to
persuade him to convict the named accused
persons for the charges framed against
them. It was found that sum and substance
of entire case hinges upon the broken links
of circumstantial evidence and unit of the
circumstances is not complete so as to hold
the accused persons guilty, beyond any iota
of doubt. He found that there is no tangible
last seen evidence and the doctor, who
conducted the autopsy on 23.1.2000, has
opined that duration of death of the
deceased is one week back that too do not
corroborate the time and date of the
incident. After evaluating and analyzing the
entire circumstances and the material on
176 INDIAN LAW REPORTS ALLAHABAD SERIES
record, the court below found that standard
norms
established
for
assessing
the
circumstances have not been achieved by
the prosecution and the court below,
therefore, has exonerated the accusedrespondents from the charges u/s 302, 201
I.P.C. and Section 3(2)5 of SC/ST Act.

13. Our criminal justice dispensation
system is solely dependent upon the
testimonies of witnesses and when from the
above mentioned testimonies it clearly
comes out that none of the prosecution
witnesses have proved the prosecution case
beyond all reasonable doubt, then the
conclusion arrived at by learned Trial
Judge seems to be the more probable
conclusion.

14. However, learned counsel for the
appellant has tried to assail the impugned
judgement by making a mention that
learned trial Judge has not properly
appreciated the evidence produced by the
prosecution and decided the case on
conjectures and surmises. He further
submits that learned Trial Judge has grossly
erred in disbelieving the testimony of
prosecution witnesses and has given an
undue importance to the version of defence.
Learned Trial Judge has also not weighed
and assess the prosecution witnesses in
proper
and
perspective
manner
and
erroneously has acquitted the accusedrespondents.

LEGAL DISCUSSION :

15. The Court has got occasion to
lay its hands on the latest judgements
relating to scope and ambit of Sections
378 and 386 of the Code of Criminal
Procedure, which speak about appeal
against acquittal.

16. In the case of Rajesh Prasad vs.
State of Bihar and another, (2022) 3 SCC
471, while thrashing the earlier judgements,
the Hon'ble Apex Court has held as under :

"24. In Shivaji Sahabrao Bobade
vs. State of Maharashtra, (1973) 2 SCC
793, Krishna Iyer, J., observed as follows:

"6.
?..
In
short,
our
jurisprudential enthusiasm for presumed
innocence must be moderated by the
pragmatic need to make criminal justice
potent and realistic. A balance has to be
struck between chasing chance possibilities
as good enough to set the delinquent free
and chopping the logic of preponderant
probability to punish marginal innocents."

25. This Court in Ramesh Babulal
Doshi v. State of Gujarat, (1996) 9 SCC
225, spoke about the approach of the
appellate court while considering an
appeal against an order acquitting the
accused and stated as follows:

"7. ?.. While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded,
that the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can then and then only
reappraise the evidence to arrive at its own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there
is no miscarriage of justice. In another
words, there should not be an acquittal of
the guilty or a conviction of an innocent
person.
11 All. Smt. Munni Devi Vs. State of U.P.& Ors.
177

29. After referring to a catena of
judgments, this Court culled out the
following general principles regarding the
powers of the appellate court while dealing
with an appeal against an order of
acquittal
in
the
following
words:
(Chandrappa vs. State of Karnataka (2007)
4 SCC 415) :

"42. From the above decisions, in
our considered view, the following general
principles
regarding
powers
of
the
appellate court while dealing with an
appeal against an order of acquittal
emerge:

(1) An appellate court has full
power
to
review,
reappreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

(2)
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

(3) Various expressions, such as,
"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of
the court to review the evidence and to
come to its own conclusion.

(4) An appellate court, however,
must bear in mind that in case of acquittal,
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is further reinforced, reaffirmed and
strengthened by the trial court.

(5) If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate court should not
disturb the finding of acquittal recorded by
the trial court."

17. Similarly in Bannareddy and
others vs. State of Karnataka and others,
(2018) 5 SCC 790, the Hon'ble Supreme
Court has been pleased to discuss the scope
of the High Court to interfere in an appeal
against an order of acquittal passed by a
Trial Court, and in paragraph-10 it has been
held that :

"10. Before we proceed further to
peruse the finding of the High Court, it is
relevant
to
discuss
the
power
and
jurisdiction of the High Court while
interfering in an appeal against acquittal.
It is well settled principle of law that the
High Court should not interfere in the well
reasoned order of the trial court which has
been arrived at after proper appreciation
of the evidence. The High Court should
give due regard to the findings and the
conclusions reached by the trial court
unless strong and compelling reasons exist
in the evidence itself which can dislodge
the findings itself. This principle has
further been elucidated in the case of
Sambhaji Hindurao Deshmukh and Ors. vs.
State of Maharashtra, (2008) 11 SCC 186,
para 13, wherein this Court observed that:

"13??The
High
Court
will
interfere in appeals against acquittals, only
where the trial court makes wrong
assumptions of material facts or fails to
appreciate the evidence properly. If two
178 INDIAN LAW REPORTS ALLAHABAD SERIES
views are reasonably possible from the
evidence on record, one favouring the
accused and one against the accused, the
High Court is not expected to reverse the
acquittal merely because it would have
taken the view against the accused had it
tried the case. The very fact that two views
are possible makes it clear that the
prosecution has not proved the guilt of the
accused beyond reasonable doubt and
consequently the accused is entitled to
benefit of doubt."

18. In the same chain the Hon'ble
Apex Court in Jayamma and another vs.
State of Karnataka, (2021) 6 SCC 213, has
considered the law on the issue involved
and observed thus :

"23. The other important reason
to depart from the High Court's view re.
conviction of the appellants is that the
power of scrutiny exercisable by the High
Court under Section 378, CrPC should not
be routinely invoked where the view formed
by the trial court was a 'possible view'. The
judgment of the trial court cannot be set
aside merely because the High Court finds
its own view more probable, save where the
judgment of the trial court suffers from
perversity or the conclusions drawn by it
were impossible if there was a correct
reading and analysis of the evidence on
record. To say it differently, unless the
High Court finds that there is complete
misreading of the material evidence which
has led to miscarriage of justice, the view
taken by the trial court which can also
possibly be a correct view, need not be
interfered with. This self-restraint doctrine,
of course, does not denude the High Court
of its powers to re-appreciate the evidence,
including in an appeal against acquittal
and arrive at a different firm finding of
fact."

19. After overall assessment of the
circumstances and perusing the entire
material on record we find that, there was no
eye-witness of the alleged incident. This case
is based purely on circumstantial evidence
and though the conviction can be based on
circumstantial evidence alone but for that
prosecution has to establish complete chain
of circumstances, which consistently points
towards guilt of the accused and accused
alone. After assessing the entirely of
circumstances, it cannot be said firmly that
accused
persons
are
involve
in
the
commission of offence. It is the duty of the
prosecution to firmly and cogently establish
the incriminating circumstances against the
accused persons and from those incriminating
circumstances inference of guilt of the
accused could be conclusively drawn. If all
the incriminating circumstances against the
accused persons are taken into consideration
they should be so complete that within all
probability they should point towards the
guilt of the accused persons, then only such
circumstances may be relied upon. At this
juncture it would be imperative to make a
reference to the decision of the Apex Court in
the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra, AIR 1984 SC 1622,
wherein the Apex Court has expatiated upon
the aspect of circumstantial evidence and set
forth certain guidelines in that regard, which
are as under:

"152. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn should
be fully established. It may be noted here that
this Court indicated that the circumstances
concerned 'must or should' and not 'may be'
established. There is not only a grammatical
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
179
but a legal distinction between 'may be
proved' and 'must be or should be proved as
was held by this Court in Shivaji Sahebrao
Bobade V State of Maharashtra 1973 CriLJ
1783 where the following observations were
made:
certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a Court can convict, and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures
from sure conclusions.

(2) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty.

(3) the circumstances should be of a
conclusive nature and tendency

(4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused.

153. These five golden principles, if
we may say so, constitute the panchsheel of the
proof of a case based on circumstantial
evidence''.

20. After considering the aforesaid law laid
down by the Apex Court on circumstantial
evidence, it emerges that conviction can be based
solely on the basis of circumstantial evidence
where the circumstances are fully established and
the chain of circumstances is conclusively
complete and the cumulative effect of all the
circumstances is such which shows that only and
only the accused is found guilty of committing
the offence. After perusal of the evidence of the
prosecution witnesses we are of the opinion that
the prosecution has failed to prove its case
beyond reasonable doubt and also failed to prove
the evidence regarding the factum of the
deceased having been last seen in the company
of accused persons. In the cases of direct
evidence the motive aspect pales into complete
insignificance but in the cases of circumstantial
evidence it serves as one of the circumstances to
be reckoned against the accused in proof of the
guilt. In the present case the prosecution has tried
to show during the course of trial that there was a
demand of repayment of loan amount on behalf
of accused persons and in that connection some
hot-talk and scuffle between the accused persons
and the deceased also took place but as we have
seen during analysis of evidence that this aspect
of the case also could not be satisfactorily proved
by prosecution. We therefore are of the opinion
that the prosecution has utterly failed to prove the
guilt of accused persons in commission of
charged crime.

21. We, therefore, find that the court below
has taken a plausible and possible view of the
matter on appreciation of entire evidence on
record, which cannot be substituted by this Court
by taking a different view as per the law
discussed above. We also do not find that the
findings recorded by the trial court are palpably
wrong, manifestly erroneous or demonstrably
unsustainable, therefore, the present appeal is
DISMISSED.
----------
(2022) 11 ILRA 179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 791 of 2013

Mohammad Anwar & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party