# Smt. Ram Shree v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Criminal Appeal U/s 372 Cr.P.C. No. 2945 of 2012
- **Bench:** Suneet Kumar, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-shree-v-state-of-u-p-ors-46609
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code, 1860 -
Section 302 read with Sections 34 and 201 -
The Code of criminal procedure, 1973 - Section
313 - appeal against acquittal - Scope of
appellate court - cardinal principle in criminal
jurisprudence - presumption of innocence of
the accused is reinforced by an order of the
acquittal -Appellate court, in such a case,
would interfere only for very substantial and
compelling
reason
-
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.(Para - 13)

Mother of deceased filed application to police station -
allegation - her son was married with the daughter of
accused - She further stated that she suspected that
accused and his daughter together killed her son.

HELD:- Only one prosecution witness P.W. -
5(maternal
uncle)
has
tried
to
support
the
prosecution version. There is no other prosecution
evidence which supports the case. The testimony of
P.W. -5 is wholly unreliable, being an outcome of
afterthought, consultation and legal advice. (Para -
10,12)

Criminal Appeal dismissed at the admission
stage. (E-7)

List of Cases cited:-

## Text

11 All. Smt. Ram Shree Vs. State of U.P. & Ors.
545
the observations made by this Court herein
above. The learned Special Judge shall decide
the matter afresh in accordance with law as
expeditiously as possible within two months
after providing a reasonable opportunity of
hearing to all the parties, if required, even
opportunity of leading evidence would also be
given to them.

19. Copy of this judgment be transmitted
to
the
Court
concerned
for
necessary
compliance.
----------
(2021)11ILR A545
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Appeal U/s 372 Cr.P.C. No. 2945 of 2012

Smt. Ram Shree ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri S.K. Chaubey, Sri R.K.S. Chauhan

Counsel for the Respondents:
A.G.A., Sri Apul Misra

(A) Criminal Law - Indian Penal Code, 1860 -
Section 302 read with Sections 34 and 201 -
The Code of criminal procedure, 1973 - Section
313 - appeal against acquittal - Scope of
appellate court - cardinal principle in criminal
jurisprudence - presumption of innocence of
the accused is reinforced by an order of the
acquittal -Appellate court, in such a case,
would interfere only for very substantial and
compelling
reason
-
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.(Para - 13)

Mother of deceased filed application to police station -
allegation - her son was married with the daughter of
accused - She further stated that she suspected that
accused and his daughter together killed her son.

HELD:- Only one prosecution witness P.W. -
5(maternal
uncle)
has
tried
to
support
the
prosecution version. There is no other prosecution
evidence which supports the case. The testimony of
P.W. -5 is wholly unreliable, being an outcome of
afterthought, consultation and legal advice. (Para -
10,12)

Criminal Appeal dismissed at the admission
stage. (E-7)

List of Cases cited:-

1. St. of U.P. Vs Surendra Singh, Govt. Appeal No.
511 of 2019

2. Sudershan Kumar Vs St. Of Himachal, (2014) 15
SCC 666

3. Dilawar Singh Vs St. Of Har.a, (2015) 1 SCC 737

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This is an appeal filed by Smt. Ram
Shree who is complaining against the acquittal
order dated 3 December 2010 passed by the
learned Additional Sessions Judge, Court No. 6,
Pilibhit in Sessions Trial No. 588 of 2009
arising out of Case Crime No. 675 of 2009
(State Vs. Bhai Lal), under Section 302 read
with Sections 34 and 201 I.P.C., Police Station
Bilsanda, District Pilibhit.

2. The factual matrix of the case is that
accused Bhai Lal had given an application to
Police Station Bilsanda on 25 June 2009
mentioning therein that he had married his
daughter Sunita with Bharat Lal. She had one
child from that wedlock and she died.
Thereafter, he married his second daughter,
namely, Surja Devi with Bharat Lal. Bhai Lal
had asked him to send Surja Devi to his house 78 days prior from the date of occurrence of the
546 INDIAN LAW REPORTS ALLAHABAD SERIES
incident but Surja Devi denied to go there.
Bharat Lal had left the house and he consumed
poison due to which he died in Gauhaniya and
his dead body was found hanging from a pakad
tree. The local police reached the spot and the
dead
body
was
taken
into
custody.
Panchayatnama was done and the body was sent
for post mortem. After post mortem Case Crime
No. 675 of 2009 under Section 302 I.P.C. was
lodged on 27 June 2009 and the investigation
started. The mother of the deceased Bharat Lal
filed an application on 27 June 2009, addressed
to Police Station, Bilsanda, wherein she had
mentioned that her son was married in Village
Navdiya Marauri, with the daughter of Bhai Lal.
She has four year old child and her daughter,
Sunita died prior to three years after her death.
The younger sister of Sunita was married to
Bharat Lal. Surja Devi was studying in Class -
VII. She used to come to the house of Smt. Ram
Shree. Surja Devi had gone to the house of her
father prior to 10 days. Bharat Lal had gone to
take her on Wednesday 24 June 2009. The body
of Bharat Lal was found in village Firsa Pastaur
at road side on 25 June 2009. She went to the
place of occurrence. The panchayat nama was
conducted. She further stated that she suspected
that Bhai Lal and Surja Devi together killed her
son. She had further stated that Bharat Lal had
no good relation with Surja Devi. Surja Devi
usually would live in her village. After
investigation, charge sheet was filed against
Bhai Lal and Surja Devi under Sections 302 and
201 I.P.C.

3. The Court summoned the accused, the
charges were framed for the offences under
Section 302 read with Section 34 and Section
201 I.P.C. The accused denied the charges.
The prosecution side led the evidences of
P.W. -1 Ram Shree, P.W. -2 HCP Siyaram
Rathaur, P.W. - 3 Phoolchandra, P.W. - 4
Smt. Reshma Devi, P.W. -5 Shankar Lal,
P.W. - 6 S.I. Bhoopal Singh and P.W. -7 Dr.
S.P. Singh.

4. P.W. -1 stated in her statement in
examination in chief that Bharat Lal was her son
in law and he was married to Sunita Devi earlier
but after death of Sunita Devi he was married to
her younger daughter Surja Devi. Surja Devi
was not happy with Bharat Lal and she did not
care of him, due to which there was quarrelsome
and bitter atmosphere in the house, and she
usually resided in her father's house. Bharat Lal
had gone to take back Surja Devi but she refused
and did not return. Bharat Lal and the accused
quarreled throughout night. Bharat Lal was not
given food and his dead body was found,
accused had murdered him. She lodged the
F.I.R. through Ram Kishan who had submitted
the written application (tahreer).

5. P.W. - 2 HCP Siyaram Rathaur admitted
that he lodged the report on the basis of the
complaint. P.W. - 3 Phoolchandra and P.W. - 4
Smt. Reshma Devi were declared hostile, they
did not support the prosecution version. P.W. - 5
Shankar Lal has supported the prosecution
version stating that he was going to Bilsanda
Market on a bicycle and on reaching Gauhaniya,
at the place of occurrence, near a pakad tree, at
10 a.m., he saw that the deceased Bharat Lal was
lying on the ground and his bicycle was lying
nearby. Surja Devi was pressing the chest of
Bharat Lal and Bhai Lal was pressing the neck.
He saw the said incident for two minutes and
thereafter went to Bilsanda Market. When he
came back to the same place about 3 p.m., he
saw that there was crowd, but, Bharat Lal and
Surja Devi were not present. Bharat Lal was
lying on the earth. After two months from the
date of occurrence of the incident, he had
informed about the incident to Ram Shree and
she informed the police. He was summoned by
police after a month thereafter when he told the
story to Ram Shree. P.W. - 6 S.I. Bhoopal Singh
conducted the panchayatnama and he was
examined. P.W.-7 Dr. S.P. Singh was also
examined who stated that he did the post
mortem on 26 June 2009 at 4 p.m. The body was
11 All. Smt. Ram Shree Vs. State of U.P. & Ors.
547
1-1/2 days old, injuries found on the body of
Bharat Lal follows as under:

i)- Multiple abraded contusions(15).
The sizes of ranged from 1.5 cm x 1.0 cm to 0.5
cm x 0.5 cm. These injuries were present on
chin, cheek and right portion of the forehead and
raised part of the bone under the eyes in an area
of 15 cm x 9 cm.

ii)- Three abrasions were found on the
left cheek of the deceased. Their sizes ranging
respectively from 0.5 cm x 0.5 cm to 0.5 cm x
4.00 cm. All these three abraisons were in an
area of 6 cm x 4 cm.

iii)- Multiple abraded contusions were
present on the membrane of the lips of the
deceased. Their sizes ranged from 0.4 cm x 01
cm to 0.3 cm x 02 cm.

iv)- An abrasion measuring 3.5 cm x
1.5 cm was found on the posterior portion of the
right elbow of the deceased.

v)- An abraision measuring 2.5. cm x
1.0 cm was present on medial aspect of the left
elbow of the deceased.

vi)- Whole front of the neck was
swollen. Size 5.5. cm x 6.0 cm.

6. The doctor had given opinion that the
cause of death was asphyxia, a result of
throttling and smothering. P.W. - 8 Smt. Shanti
Devi and P.W. - 9 Sarla Devi were also declared
hostile and did not support the prosecution case.

7. After evidence of prosecution the
accused were afforded opportunity under
Section 313 Cr.P.C. The accused had stated that
Ram Shree, the complainant is the mother of the
deceased, and Shankar Lal, P.W. - 5, is the
maternal uncle. Both the witnesses had given
false statements to implicate the accused falsely.
He further stated that the information of death
was given by him first to the police station. The
accused had got summoned the application dated
25 June 2009 from the police station. Ram Shree
has stated in her statement that she had given
application on 27 June 2009 after three days of
the date of incident that Surja Devi and her
father Bhai Lal had killed her son Bharat Lal.
Surja Devi had no good relation and she usually
lived in her parental house. She had further
stated that she did not see the occurrence and she
had nominated the accused.

8. P.W. - 5 was examined before the Court
and the same fact was reiterated by him in
examination in chief. In cross examination he
admitted that Ram Shree, the complainant, is the
sister and Bharat Lal, the deceased was the son
of his sister thus his Bhanja. The Court was of
the opinion that the conduct and behaviour of
P.W.-5 was unusual, he did not make any protest
at the time of incident when he saw that his
bhanja was being killed by the accused., rather
he proceeded to Bilsanda Market. P.W. -5 did
not inform his sister for three months, thus, his
testimony was totally discarded. The Court has
further mentioned that Shankar Lal, the P.W. - 5
has stated that he stopped for two minutes in
front of the body of his bhanja Bharat Lal who
was lying on the road. He then went to Bilsanda
Market and thereafter again came to the place of
occurrence where he saw that the body of his
bhanja was lying on the road. He mentioned that
he came back to his house because his son was
ill. He remained in his village throughout the
night. He admitted before the Court that he had
gone for the last rites of his bhanja, but did not
inform about the incident to his sister Ram
Shree. He had also gone for dashwan. After
three months of the incident he had gone to the
police station and his statement was recorded.
The Court was of the opinion that it is unnatural
that a close relative P.W. -5 had not disclosed
the death of his bhanja to his sister Ram Shree
for three months. The statement of P.W. - 5 is an
548 INDIAN LAW REPORTS ALLAHABAD SERIES
after thought upon consultation and legal advice
which was unreliable. Ram Shree in the cross
examination stated that she had reached the spot
of occurrence at 12 noon and Shankar Lal (P.W.
- 5) was her real brother. She further stated that
she had told Shankar Lal about the death of her
son and Shankar Lal accompanied her to the
police station. Shankar Lal mentioned that he
got the information of the death of the deceased
from his sister Ram Shree and had accompanied
her to the police station, thus contradicting his
statement of being occular witness. In the F.I.R.,
Ram Shree had not mentioned that Shankar Lal
had seen the occurrence.

9. We have heard, Sri S.K. Chaubey,
learned counsel for the appellant, learned
A.G.A. for the State as well as Sri Apul Mishra,
learned counsel appearing for the private
respondents as also perused the record.

10. After going through the entire case
only one prosecution witness Shankar Lal, P.W.
- 5 has tried to support the prosecution version.
The statement of Shankar Lal is to be analysed
in the perspective of the overall prosecution case
and inference is to be drawn from the
circumstances
and
circumstantial
evidence
whether he was present on the spot or not.

11. In cross examination he has admitted
that Ram Shree (P.W. -1), the complainant, is
his sister and Bharat Lal, the deceased was the
son of his sister, thus, the deceased was his
Bhanja (nephew). He did not make any protest
nor enquired when he saw that his bhanja was
being subjected to assault by pressing his neck
and chest by the accused. He rather proceeded to
Bilsanda Market. The incident according to him
is of 10 a.m. Thereafter, he again came to the
place of occurrence at 3 p.m. and saw that the
body of his bhanja was lying on the road. He
came back to his house because his son was ill.
He remained to his village throughout night. He
deposed before the Court that he had gone for
last rites of his bhanja, but did not inform about
the incident to his sister Ram Shree. He had also
gone for dashwan. After three months of the date
of occurrence he had gone to the police station
and his statement was recorded. It is unnatural
that for three months he did not disclose the
incident to his sister Ram Shree. In contradiction
case as stated by P.W. - 5 is an after thought
because the statement had been recorded by the
police after three months. Lastly, it is noted that
Ram Shree deposed statement in that she
reached the spot of occurrence at 12 noon
Shankar Lal her real brother accompanied her to
the police station Shankar Lal had not informed
her of the incident about the death of her son. In
contradiction, Shankar lal deposed that he got
the information of the death of his nephew from
his sister Ram Shree and had gone along with
her to lodge report at the police station. In the
F.I.R., Ram Shree had not mentioned that
Shankar lal had seen the incident.

12. There is no other prosecution evidence
which supports the case. The testimony of P.W.
-5 is wholly unreliable, being an outcome of
after thought, consultation and legal advice.

13. While dealing with the scope of the
appellate court a Division Bench of this Court in
State
of
U.P.
Vs.
Surendra
Singh
[Government Appeal No. 511 of 2019, decided
on 20 January 2020] observed as under:

"12. In Sudershan Kumar v. State of
Himachal reported in (2014) 15 SCC 666 the
Hon'ble Supreme Court observed thus;-

"31.It has been stated and restated
that
a
cardinal
principle
in
criminal
jurisprudence that presumption of innocence of
the accused is reinforced by an order of the
acquittal. The appellate court, in such a case,
would interfere only for very substantial and
compelling reason. There is plethora of case
laws on this proposition and we need not burden
11 All. Smt. Ram Shree Vs. State of U.P. & Ors.
549
this judgment by referring to those decisions.
Our purpose would be served by referring to one
reasoned pronouncement entitled Dhanapal v.
State which is the judgment where most of the
earlier decisions laying down the aforesaid
principle
are
referred
to.
In
para
37,
propositions laid down in an earlier case are
taken note of as under: -

"37. In Chandrappa v. State of
Karnataka, this Court held: ( SCC p. 432 para
42), (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."

32. Thereafter, in para 39, the Court
curled out five principles and we would like to
reproduce the said para hereunder:

"39. The following principles emerge
from the cases above:

1. The accused is presumed to be
innocent until proven guilty. The accused
possessed this presumption when he was before
the trial court. The trial court's acquittal
bolsters the presumption that he is innocent.

2. The power of reviewing evidence is
wide and the appellate court can re- appreciate
the entire evidence on record. It can review the
trial court's conclusion with respect to both facts
and law, but the Appellate Court must give due
weight and consideration to the decision of the
trial court.

3. The appellate court should always
keep in mind that the trial court had the distinct
advantage of watching the demeanour of the
witnesses. The trial court is in a better position
to evaluate the credibility of the witnesses.

4. The appellate court may only
overrule or otherwise disturb the trial court's
acquittal if it has "very substantial and
compelling reasons" for doing so.

5. If two reasonable or possible views
can be reached - one that leads to acquittal, the
other to conviction - the High Courts/appellate
courts must rule in favour of the accused."
550 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In Dilawar Singh v. State of
Haryana, (2015) 1 SCC 737, the Supreme Court
reiterated the same in paragraphs 36 and 37 as
under :

"36. The court of appeal would not
ordinarily interfere with the order of acquittal
unless the approach is vitiated by manifest
illegality. In an appeal against acquittal, this
Court will not interfere with an order of acquittal
merely because on the evaluation of the evidence,
a different plausible view may arise and views
taken by the courts below is not correct. In other
words, this Court must come to the conclusion
that the views taken by the learned courts below,
while acquitting, cannot be the views of a
reasonable person on the material on record.

36. In Chandrappa v. State of
Karnataka, the scope of power of appellate
court dealing with an appeal against acquittal
has been considered and this Court held as
under: (SCC p.432 para 42) "42....(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."

Unless there are substantial and
compelling reasons, the order of acquittal is not
required to be reversed in appeal. It has been so
stated in State of Rajasthan v. Shera Ram."

14. In view of the aforesaid factual
backdrop, we are of the opinion that the appeal
lacks merit and is dismissed at the admission
stage.
----------
(2021)11ILR A550
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI (THAKUR), J.

Criminal Appeal No. 4025 of 2013
with
Criminal Appeal No. 4160 of 2013

Ramasankar Kushwaha & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri
Chandra
Shekhar
Kushwaha,
Sri
Lav
Srivastava, Sri V.P. Srivastava ( Senior Adv.)

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 147, 328/149, 302/149, 201 &
118/149 - The Code of criminal procedure,
1973 - Section 161 & 313 - appeal against
conviction - Circumstantial evidence - surmises
and conjectures - settled law - Prosecution has
to prove its case beyond reasonable doubt -
statement under Section 161 Cr.P.C. not on
oath, so such statement cannot be said to be
relied for bringing home the guilt of the
accused persons - where two views of the
prosecution story appear to be probable, the
one that is in favour of the accused should be
accepted - principle of Criminal Jurisprudence -
mere suspicion, however, strong it may be,
cannot take place of evidence . (Para -
59,60,67,72 )

(B) Criminal law - Indian Evidence Act, 1872 -
Section 101 (general rule) - Burden of proof ,