MUNNI DEVIversusSTATE OF U.P. AND 6 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 APPLICATION U/S 378 No. - 115 of 2024

Munni Devi
                                                              .....Applicant(s)
                                   Versus
State Of U.P. And 6 Others
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)                        :   Rajkumar Verma
Counsel for Opposite Party(s)                   :   G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Sri Rajkumar Verma, learned counsel for the appellant and Sri
Rahul Asthana, learned A.G.A. for the State.

2. The present application under Section 378 has been moved on behalf of
applicant against the impugned judgment and order dated 23.11.2023 passed
by the Additional Civil Judge (Junior Division), Court No.4/Judicial
Magistrate, Etawah, in Complaint Case No.662 of 2008 (Munni Devi Vs.
Bade @ Sudeep Kumar and others) under Sections 323, 452, 504, 506 I.P.C.
Police Station- Kotwali, District- Etawah.

3. The present appeal arises out of a complaint case relating to allegations of
trespass, assault, voluntarily causing hurt, abuse and criminal intimidation.
After recording the statements under Section 200 and 202 Cr.P.C., the
accused were summoned for trial of offence under Sections 452, 323, 504,
506 I.P.C.

4. The brief facts as borne out from the record are that the appellant filed a
complaint alleging that the accused person forcibly entered her house,
assaulted her husband and daughter with lathi and danda, hurled abuses and
extended threats to kill. After recording the statement U/s 200 and 202
Cr.P.C., the learned Trial Court summoned the accused person for trial of
offence U/s 452, 323, 504, 506 I.P.C.

5. During the course of trial, the complainant adduced evidence U/s 244
Cr.P.C. However, several opportunities being given to witness appeared for
cross-examination. Consequently, the learned Trial court recorded that in
absence of cross-examination, the evidence U/s 244 Cr.P.C. could not be
read. As no evidence was thereafter produced under section 246 Cr.P.C., the
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trial court dismissed the complaint and acquitted the accused person vide
judgement and order dated 23.11.2023.

6. Learned Counsel for the appellant contends that the witnesses could not
appear for cross-examination as initially the date in the month of December
was fixed by the trial court, which was subsequently changed, and due to
lack of information regarding the changed date the witnesses remained
absent. It is argued that the acquittal is, therefore, erroneous and calls for
interference.

7. From the material placed on record, it is evident that no copy of order-
sheet has been filed to substantiate the plea that a date fixed in the month of
December was subsequently altered by the trial court. On the contrary, the
date sheet annexed with affidavit (Annexure-3) by the appellant himself
clearly indicates that the witnesses failed to appear before the trial court
despite due opportunities. The plea of change of date is not supported by
record and appears to be an afterthought.

8. Another aspect which further weakens the case of the complainant is the
absence of any medical evidence. Though it is true that in an offence under
section 323 I.P.C. production of an injury report is not an absolute legal
requirement, yet where the allegation is of assault by lathi and danda by six
accused persons, it is but natural that some visible injury, howsoever minor,
would have been sustained by the victim.

9. In facts and circumstances of the case, non production of any medical
examination or injury report assumes significance and casts a serious doubt
on the veracity of the prosecution version. Thus omission when examined
cumulatively with the failure of complainant's witnesses to offer themselves
for cross-examination gravely dents the prosecution version and justifies the
interference drawn by the Trial court.

10. It is well settled that evidence recorded under section 244 Cr.P.C. can
not be read unless the accused is afforded an opportunity of cross-
examination where the complainant and his witnesses failed to submit
themselves in cross-examination despite repeated opportunities, the trial
court is justified in declining to rely upon such evidence.

11. The learned Trial court has followed the procedure prescribed under law
and has recorded acquittal only after granting sufficient opportunities to the
complainant. No perversity, illegality or manifest error has been pointed out
in the impugned judgement warranting interference by this Court while
exercising jurisdiction under section 378(4) Cr.P.C.
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                                    12. In view of the above discussion, this Court finds no ground to grant
                                    special leave to appeal. The appeal is liable to be dismissed.

                                    13. Accordingly, the present application for special leave to appeal is
                                    dismissed.

                                    January 29, 2026
                                    P. Pandey
                                                                            (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad