# State of U.P v. Smt. Phoolan Devi @ Phoolmati

- **Citation:** (2024) 2 ILRA 635
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-20
- **Case number:** J. Government Appeal No. 1000144 of 2013
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-smt-phoolan-devi-phoolmati-51453
- **Pages:** 7

## Headnote

Law
-
Indian
Penal
CodeSectiontion302-Acquittal-Accused/
respondent acquitted of the offence u/s 302
IPC-cause of death of the deceased/ infant/
child is reported to be asphyxia as a result of
ante mortem strangulation-co-accused, Hori Lal
is the husband of the accused- respondent-he is
convicted-even if acquittal is recorded in respect
of some of the co-accused- yet conviction can
be recorded in respect of the other accused-
Respondent acquitted -based on proper analysis
of evidence available on record- possible view of
the matter on the basis of evidence adducedAppeal dismissed. (E-9)

Cases cited:

## Text

2 All. State of U.P. Vs.Smt. Phoolan Devi @ Phoolmati
635
that contentious proceeding u/s 278 of the
Act, 1925 will proceed as regular suit and
appeal against any order, passed during the
proceeding u/s 278 of the Act, 1925, will be in
accordance with the C.P.C. Therefore, this
Court holds that the appeal u/s 299 of the Act,
1925 will lie only against those orders that are
appealable as per Order 43 Rule 1 C.P.C. and
rejection of the amendment application under
Order 6 Rule 17 C.P.C. does not find place in
Order 43 Rule 1 C.P.C.

10. In view of the above analysis, this
Court is of the view that against the rejection of
amendment application under Order 6 Rule 17
C.P.C. during the proceeding of Section 278 of
Indian Succession Act, 1925, no appeal lies u/s
299 of the Act, 1925 and the same can be
challenged by the appellant either in revision u/s
115 C.P.C. or under the supervisory jurisdiction
of the High Court, under Article 227 of
Constitution of India.

11. Accordingly, the present appeal is dismissed
with a liberty to the appellant to challenge the impugned
order in appropriate proceeding.
----------
(2024) 2 ILRA 635
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Government Appeal No. 1000144 of 2013

State of U.P. ...Appellant
Versus
Smt. Phoolan Devi @ Phoolmati
 ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondents:

Criminal
Law
-
Indian
Penal
CodeSectiontion302-Acquittal-Accused/
respondent acquitted of the offence u/s 302
IPC-cause of death of the deceased/ infant/
child is reported to be asphyxia as a result of
ante mortem strangulation-co-accused, Hori Lal
is the husband of the accused- respondent-he is
convicted-even if acquittal is recorded in respect
of some of the co-accused- yet conviction can
be recorded in respect of the other accused-
Respondent acquitted -based on proper analysis
of evidence available on record- possible view of
the matter on the basis of evidence adducedAppeal dismissed. (E-9)

Cases cited:

1. Balraje alias Trimbak Vs St. of Maha., (2010)
6 SCC 673

2. Ramesh & ors. Vs St. of Har., (2017) 1 SCC
529

3. Anwar Ali & anr.Vs St. of H.P., (2020) 10 SCC
166

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

(Oral)

1. By means of the present
application under Section 378(3) of the
Code of Criminal Procedure1, the State has
sought leave to appeal to challenge the
judgment and order dated 16.05.2013
passed by the then Special/ Additional
Sessions Judge, Lakhimpur Kheri in
Sessions Trial No.52 of 2007 titled as State
of U.P. vs. Hori Lal and another arising out
of Case Crime No.77 of 2006, under
Section 302 of the Indian Penal Code2,
Police Station Pasgawan, District Kheri,
636 INDIAN LAW REPORTS ALLAHABAD SERIES
whereby the accused/ respondent herein,
Smt. Phoolan Devi @ Phoolmati has been
acquitted of the offence under Sections
302. However, the co-accused, Hori Lal has
been convicted and sentenced to undergo
life imprisonment with a fine of Rs.5,000/-
for the offence under Section 302 I.P.C.
and in default of payment of fine, he has
further been directed to undergo two
months' simple imprisonment.

2. We have heard the learned
Additional
Government
Advocate
appearing on behalf of the State-appellant
on the application for grant of leave to
appeal and perused the record available
before this Court.

3. The brief facts are that Hori Lal
submitted
a
written
application
on
10.01.2006 at Police Station Pasgawan,
District Kheri saying that his wife Phoolan
Devi @ Phoolmati was all alone in the
house on 09.01.2006 in the night and at
around 01:00 PM, Mewa s/o Dwarika and
Pramod s/o Natthu inquired about the
whereabouts of Hori Lal from Phoolan
Devi @ Phoolmati. Phoolan Devi @
Phoolmati
being
unaware
of
the
whereabouts of her husband could not tell
Mewa and Pramod about the whereabouts
of Hori Lal. Mewa and Pramod started
beating up Phoolan Devi @ Phoolmati, as a
result of such attack on the person of
Phoolan Devi @ Phoolmati, the foetus that
was inside her womb as she was 8 months'
pregnant died and the baby was still born.
Some villagers who had heard the noise
came to the house of Hori Lal and saved
the life of Phoolan Devi @ Phoolmati from
the attack of Mewa and Pramod. As a
result
of
such
application
dated
10.01.2006, an F.I.R. as Case Crime
No.77 of 2006 was registered under
Sections 316 & 452 of the I.P.C.
initially against Mewa and Pramod at
Police Station Pasgawan, District Kheri
at 10:45 AM. During the course of
investigation,
an
Ultrasound
and
Medical Examination of Phoolan Devi
@
Phoolmati
was
done.
The
postmortem of the deceased/ child was
also conducted by P.W.-3, Dr. S.P.
Verma.
On
the
basis
of
such
investigation, the Charge-sheet was
filed
by
the
Investigating
Officer
against Hori Lal and Phoolan Devi @
Phoolmati under Section 302/34 I.P.C.
Mewa and Pramod, who were initially
named in the first information report
were exonerated.

4. It is contended by the learned
A.G.A. for the State/ appellant that the
impugned judgment and order dated
16.05.2013 is against the weight of
evidence available on record.

5. His submission is that the
learned trial court, while convicting the
co-accused, Hori Lal, has recorded
finding of acquittal in respect of
another co-accused, Smt. Phoolan Devi
@ Phoolmati, the sole respondent
herein, on the basis of same set of
evidence,
which
is
legally
impermissible.

6. Learned A.G.A. for the State/
appellant,
thus,
submits
that
the
impugned judgment and order dated
16.05.2013 is perverse and, therefore,
the application seeking leave to appeal
deserves to be allowed.

7. Having heard the learned
A.G.A. for the State/ appellant and
upon perusal of record available before
us, we find that according to postmortem
report, Ex. Ka-1, following ante-mortem
2 All. State of U.P. Vs.Smt. Phoolan Devi @ Phoolmati
637
injuries were reported on the body of the
deceased/ child :-

"1- खराश दार नीलगू ननशान 2
सें०मी० x 1 सें०मी० गददन पर दानिनी तरफ
दानिने कान से 3 सें०मी० नीचे।
 2- खराशदार नीलगू ननशान 2
सें०मी० x 1 सें०मी० गददन पर बायीीं तरफ बायें
कान से 1 सें०मी० नीचे। चोट का निच्छेदन करने
पर गददन के सब कुटेननयम नटशूज एमाईमोज्ड
पाये गये तथा टरैनकया कन्जेस्टेड पायी गयी।

3- नीलगू ननशान 1 सें०मी० ग .5
सें०मी० ऊपरी िाथ पर दानिनी तरफ।"

8. We also find that the cause of death
of the deceased/ infant/ child is reported to
be asphyxia as a result of ante mortem
strangulation. The fact that the co-accused,
Hori Lal is the husband of the accusedrespondent,
Smt.
Phoolan
Devi
@
Phoolmati is not disputed. It is borne out
from the record that the co-accused, Hori
Lal, who has been convicted by means of
impugned judgment and order
dated
16.05.2013, was in jail for a period of about
one and a half years and when he was
released from jail and returned to his home,
he came to know that the accusedrespondent, Smt. Phoolan Devi @ Phoolmati
was pregnant and was carrying eight months'
foetus. He, thus, was having motive to
commit the crime-in-question in order to get
rid of the child, who, as he thought, was
conceived by the accused-respondent, Smt.
Phoolan Devi @ Phoolmati during the period
when the co-accused, Hori Lal was in jail.
The entire prosecution case was based on
circumstantial evidence. As stated above,
motive to commit the crime was with the coaccused, Hori Lal only. It is relevant to
mention that ante-mortem injuries reported
on the persons of the deceased/ child are of
such nature, which could not have been
inflicted in the manner as stated in the first
information report. The cause of death of the
deceased/ child also suggests that the child
was done to death after her birth.

9. It is apposite to mention that even
if acquittal is recorded in respect of some of
the co-accused, yet conviction can be
recorded in respect of the other accused if
evidence indicating complicity of such
convicted co-accused is found cogent and
reliable against him. In this regard, a
judgment rendered by Hon'ble the Supreme
Court in Balraje alias Trimbak vs. State of
Maharashtra3 may be usefully referred to.

10. Hon'ble the Supreme Court in
Ramesh and Others vs. State of Haryana4
in paragraphs 24 and 26, has held as under:-

"24. We have duly appreciated the
submissions advanced by the counsel for the
parties on both sides. No doubt, the High
Court was dealing with the appeal against
the judgment of the trial court which had
acquitted the appellants herein. The scope
of interference in an appeal against
acquittal is undoubtedly narrower than the
scope of appeal against conviction. Section
378 of the Code of Criminal Procedure,
1973 confers upon the State a right to
prefer an appeal to the High Court against
the order of acquittal. At the same time,
sub-section (3) thereof mandates that such
an appeal is not to be entertained except
with the leave of the High Court. Thus,
before an appeal is entertained on merits,
leave of the High Court is to be obtained
which means that normally judgment of
acquittal of the trial court is attached a
definite value which is not to be ignored
by the High Court. In other words,
presumption of innocence in favour of an
accused gets further fortified or reinforced
by an order of acquittal. At the same time,
638 INDIAN LAW REPORTS ALLAHABAD SERIES
while exercising its appellate power, the
High Court is empowered to reappreciate,
review and reconsider the evidence before
it. However, this exercise is to be
undertaken in order to come to an
independent conclusion and unless there
are substantial and compelling reasons or
very strong reasons to differ from the
findings of acquittal recorded by the trial
court, the High Court, as an appellate
court in an appeal against the acquittal, is
not supposed to substitute its findings in
case the findings recorded by the trial
court are equally plausible.

26.
This
legal
position
is
reiterated
in
Govindaraju
v.
State
[Govindaraju v. State, (2012) 4 SCC 722 :
(2012) 2 SCC (Cri) 533] and the following
passage therefrom needs to be extracted:
(SCC p. 732, paras 12-13)

"12.
The
legislature
in
its
wisdom, unlike an appeal by an accused in
the case of conviction, introduced the
concept of leave to appeal in terms of
Section 378 CrPC. This is an indication
that appeal from acquittal is placed on a
somewhat different footing than a normal
appeal. But once leave is granted, then
there is hardly any difference between a
normal appeal and an appeal against
acquittal. The concept of leave to appeal under
Section 378 CrPC has been introduced as an
additional stage between the order of acquittal
and consideration of the judgment by the
appellate court on merits as in the case of a
regular appeal. Sub-section (3) of Section 378
clearly provides that no appeal to the High
Court under sub-section (1) or (2) shall be
entertained except with the leave of the High
Court. This legislative intent of attaching a
definite value to the judgment of acquittal
cannot be ignored by the courts.

13. Under the scheme of CrPC,
acquittal confers rights on an accused that
of a free citizen. A benefit that has
accrued to an accused by the judgment of
acquittal can be taken away and he can be
convicted on appeal, only when the
judgment of the trial court is perverse on
facts or law. Upon examination of the
evidence before it, the appellate court
should be fully convinced that the findings
returned by the trial court are really
erroneous and contrary to the settled
principles of criminal law."" (emphasis
supplied by us)

11. Hon'ble the Supreme Court in
Anwar Ali and another vs. State of
Himachal Pradesh5 in paragraph 14.1, has
held as under:-

"14.1. In Babu [Babu v. State of
Kerala, (2010) 9 SCC 189 : (2010) 3 SCC
(Cri) 1179] , this Court had reiterated the
principles to be followed in an appeal
against acquittal under Section 378 CrPC.
In paras 12 to 19, it is observed and held as
under : (SCC pp. 196-99)

"12. This Court time and again
has laid down the guidelines for the High
Court to interfere with the judgment and
order of acquittal passed by the trial court.
The appellate court should not ordinarily
set aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the
more probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact,
the trial court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law.
Similarly, wrong placing of burden of proof
2 All. State of U.P. Vs.Smt. Phoolan Devi @ Phoolmati
639
may also be a subject-matter of scrutiny by
the appellate court. (Vide Balak Ram v.
State of U.P. [Balak Ram v. State of U.P.,
(1975) 3 SCC 219 : 1974 SCC (Cri) 837] ,
Shambhoo Missir v. State of Bihar
[Shambhoo Missir v. State of Bihar, (1990)
4 SCC 17 : 1990 SCC (Cri) 518] ,
Shailendra Pratap v. State of U.P.
[Shailendra Pratap v. State of U.P., (2003)
1 SCC 761 : 2003 SCC (Cri) 432] ,
Narendra Singh v. State of M.P. [Narendra
Singh v. State of M.P., (2004) 10 SCC 699 :
2004 SCC (Cri) 1893] , Budh Singh v. State
of U.P. [Budh Singh v. State of U.P.,
(2006) 9 SCC 731 : (2006) 3 SCC (Cri)
377] , State of U.P. v. Ram Veer Singh
[State of U.P. v. Ram Veer Singh, (2007)
13 SCC 102 : (2009) 2 SCC (Cri) 363] , S.
Rama Krishna v. S. Rami Reddy [S. Rama
Krishna v. S. Rami Reddy, (2008) 5 SCC
535 : (2008) 2 SCC (Cri) 645] , Arulveluv.
State [Arulvelu v. State, (2009) 10 SCC 206
: (2010) 1 SCC (Cri) 288] , Perla
Somasekhara Reddy v. State of A.P. [Perla
Somasekhara Reddy v. State of A.P., (2009)
16 SCC 98 : (2010) 2 SCC (Cri) 176] and
Ram Singh v. State of H.P. [Ram Singh v.
State of H.P., (2010) 2 SCC 445 : (2010) 1
SCC (Cri) 1496] )"

13. In Sheo Swarup v. King
Emperor [Sheo Swarup v. King Emperor,
1934 SCC OnLine PC 42 : (1933-34) 61 IA
398 : AIR 1934 PC 227 (2)] , the Privy
Council observed as under : (SCC Online
PC : IA p. 404)

'... the High Court should and
will always give proper weight and
consideration to such matters as (1) the
views of the trial Judge as to the credibility
of the witnesses; (2) the presumption of
innocence in favour of the accused, a
presumption certainly not weakened by the
fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an
appellate court in disturbing a finding of
fact arrived at by a Judge who had the
advantage of seeing the witnesses.'

14. The aforesaid principle of law
has consistently been followed by this
Court. (See Tulsiram Kanu v. State
[Tulsiram Kanu v. State, 1951 SCC 92 :
AIR 1954 SC 1] , Balbir Singh v. State of
Punjab [Balbir Singh v. State of Punjab,
AIR 1957 SC 216 : 1957 Cri LJ 481] , M.G.
Agarwal v. State of Maharashtra [M.G.
Agarwal v. State of Maharashtra, AIR 1963
SC 200 : (1963) 1 Cri LJ 235] , Khedu
Mohton v. State of Bihar [Khedu Mohton v.
State of Bihar, (1970) 2 SCC 450 : 1970
SCC (Cri) 479] , Sambasivan v. State of
Kerala [Sambasivan v. State of Kerala,
(1998) 5 SCC 412 : 1998 SCC (Cri) 1320] ,
Bhagwan Singh v. State of M.P. [Bhagwan
Singh v. State of M.P., (2002) 4 SCC 85 :
2002 SCC (Cri) 736] and State of Goa v.
Sanjay Thakran [State of Goa v. Sanjay
Thakran, (2007) 3 SCC 755 : (2007) 2 SCC
(Cri) 162] .)

15. In Chandrappa v. State of
Karnataka
[Chandrappa
v.
State
of
Karnataka, (2007) 4 SCC 415 : (2007) 2
SCC (Cri) 325] , this Court reiterated the
legal position as under : (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
640 INDIAN LAW REPORTS ALLAHABAD SERIES
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.'

16. In Ghurey Lal v. State of U.P.
[Ghurey Lal v. State of U.P., (2008) 10
SCC 450 : (2009) 1 SCC (Cri) 60] , this
Court reiterated the said view, observing that
the appellate court in dealing with the cases in
which the trial courts have acquitted the
accused, should bear in mind that the trial
court's acquittal bolsters the presumption that
he is innocent. The appellate court must give
due weight and consideration to the decision of
the trial court as the trial court had the distinct
advantage of watching the demeanour of the
witnesses, and was in a better position to
evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh
[State of Rajasthan v. Naresh, (2009) 9 SCC
368 : (2009) 3 SCC (Cri) 1069] , the Court
again examined the earlier judgments of this
Court and laid down that : (SCC p. 374, para
20)

'20. ... An order of acquittal should
not be lightly interfered with even if the court
believes that there is some evidence pointing
out the finger towards the accused.'

18. In State of U.P. v. Banne [State
of U.P. v. Banne, (2009) 4 SCC 271 : (2009) 2
SCC (Cri) 260] , this Court gave certain
illustrative circumstances in which the Court
would be justified in interfering with a judgment
of acquittal by the High Court. The
circumstances include : (SCC p. 286, para 28)

'(i) The High Court's decision is
based on totally erroneous view of law by
ignoring the settled legal position;

(ii) The High Court's conclusions are
contrary to evidence and documents on record;

(iii) The entire approach of the High
Court in dealing with the evidence was patently
illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is
manifestly unjust and unreasonable based on
erroneous law and facts on the record of the
case;

(v) This Court must always give
proper weight and consideration to the
findings of the High Court;

(vi)
This
Court
would
be
extremely reluctant in interfering with a
case when both the Sessions Court and the
High Court have recorded an order of
acquittal.'
A similar view has been reiterated by this
Court in Dhanapal v. State [Dhanapal v.
State, (2009) 10 SCC 401 : (2010) 1 SCC
(Cri) 336] .

19. Thus, the law on the issue can
be summarised to the effect that in
exceptional
cases
where
there
are
compelling
circumstances,
and
the
judgment under appeal is found to be
perverse, the appellate court can interfere
2 All. Dinesh Tiwari @ Dhirendra Kumar Tiwari Vs. State of U.P. & Anr.
641
with the order of acquittal. The appellate
court should bear in mind the presumption
of innocence of the accused and further
that the trial court's acquittal bolsters the
presumption of his innocence. Interference
in a routine manner where the other view is
possible should be avoided, unless there
are
good
reasons
for
interference."
(emphasis supplied)" (emphasis supplied
by us)

12. Thus, having regard to aforesaid
overall facts and circumstances of this case
and in view of the law laid down by
Hon'ble the Supreme Court in Balraje's
case (supra), Ramesh's case (supra) and
Anwar Ali's case (supra), we are of the
considered
view
that
the
impugned
judgment and order dated 16.05.2013
insofar
as
it
relates
to
the
respondent, Smt. Phoolan Devi @
Phoolmati, who has been acquitted
of the charge under Section 302
I.P.C., is based on proper analysis
of evidence available on record. It
is a possible view of the matter on
the
basis
of
evidence
adduced
before
the
learned
trial
court,
therefore, the same cannot be said
to be perverse.

13. On the basis of foregoing
discussion,
we
are
of
the
considered
view
that
the
application for leave to appeal
lacks merit and is, accordingly,
rejected.

14. Since the application for
leave to appeal has been rejected,
the appeal also does not survive
and the same stands dismissed.

15. Let the record of trial
court,
if
any,
be
transmitted
forthwith to the learned trial court
concerned.
----------
(2024) 2 ILRA 641
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 9161 of 2023

Dinesh Tiwari @ Dhirendra Kumar Tiwari
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Anshumali Srivastava, Mayank Srivastava

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 100(4) & 482 - Immoral
Traffic (Prevention) Act, 1956 - Sections
2(f), 3, 4, 4(1), 5, 7, 7(1)(a), 7(1)(b), 8, 9
& 15(2) - Application under Section 482 of
Cr.P.C. - for quashing of the entire criminal
proceedings - Police Raid - search & Seize -
applicant found in an intimate position with coaccused lady, who was allegedly involved in in
prostitution - FIR - Investigation - Chargesheet
-
order
of
Cognizance
-
instant
Application - applicant taken plea that the
search violated Section 15(2) of the Act due to
the absence of two local witnesses, and that the
applicant, being merely a customer, cannot be
penalized under the Act unless actively involved
in the prostitution business - court examined -
whether the applicant, found as a customer in a
brothel, could be prosecuted under Sections 3 to
9 of the Immoral Traffic (Prevention) Act, and
whether the search violated Section 15(2),
which
mandates
the
presence
of
two
respectable local witnesses including a woman -
court held that - (i) a search conducted in
violation of Section 15(2) of the Act can be said