# Babu Lal v. State of U.P

- **Citation:** (2024) 2 ILRA 1399
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Criminal Appeal No. 2235 of 2008
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-lal-v-state-of-u-p-51261
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 506 & 34 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(1)(x) -
Appellants challenged conviction under Section
323/34 IPC and fine of Rs.300/- each (with 2
months' imprisonment in default) by Additional
Special
Sessions
Judge/S.C.
&
S.T.
Act,
Sultanpur, dated 23.07.2008, in Sessions Trial
No. 9/2007. Court held: (1) Prosecution failed to
prove guilt beyond reasonable doubt; injuries on
P.W.-1 and P.W.-3 caused by friction, not
lathi/danda as alleged, and appeared old per
medical evidence. (2) Witnesses (P.W.-1, P.W.-3)
were interested (close relatives), and P.W.-2's
testimony
contradictory,
casting
doubt
on
presence and incident. (3) Trial court's reliance
on interested witnesses without proper scrutiny
erroneous; principle of falsus in uno falsus in
omnibus inapplicable, but evidence lacked
credibility (Khujji @ Surendra Tiwari Vs St. of
M.P., AIR 1991 SC 1853; Sucha Singh Vs St. of
Punj., AIR 2003 SC 3617; Paramjeet Singh Vs
St. of Uttarakhand, AIR 2011 SC 200). (4) Delay
in FIR and lack of corroborative evidence further
weakened prosecution case. Conviction set
aside; appellants acquitted; appeal allowed.
(Paras 17-25)

Appeal Allowed.

Case Law Cited:

## Text

2 All. Babu Lal Vs. State of U.P.
1399
Ram Chandra came to be convicted for the
offence under Section 302 I.P.C., is not
sustainable and deserves to be set aside,
which is, accordingly, set aside. The
appellant is acquitted of charge under
Section 302 I.P.C. Consequently, the
present criminal appeal is allowed.

30. The accused/ appellant, Ram
Chandra is in jail. Let the accused/
appellant be released from jail forthwith, if
he is not wanted in any other case.

31. The appellant is directed to file a
personal bond and two sureties in the like
amount to the satisfaction of the court
concerned in compliance of Section 437-A
Cr.P.C. within eight weeks from today.

32. Let the record of trial court along
with a copy of this order be transmitted
forthwith to the
learned
trial
court
concerned for necessary information and
compliance.
----------
(2024) 2 ILRA 1399
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2235 of 2008

Babu Lal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Madan Mohan Pandey

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323, 504, 506 & 34 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(1)(x) -
Appellants challenged conviction under Section
323/34 IPC and fine of Rs.300/- each (with 2
months' imprisonment in default) by Additional
Special
Sessions
Judge/S.C.
&
S.T.
Act,
Sultanpur, dated 23.07.2008, in Sessions Trial
No. 9/2007. Court held: (1) Prosecution failed to
prove guilt beyond reasonable doubt; injuries on
P.W.-1 and P.W.-3 caused by friction, not
lathi/danda as alleged, and appeared old per
medical evidence. (2) Witnesses (P.W.-1, P.W.-3)
were interested (close relatives), and P.W.-2's
testimony
contradictory,
casting
doubt
on
presence and incident. (3) Trial court's reliance
on interested witnesses without proper scrutiny
erroneous; principle of falsus in uno falsus in
omnibus inapplicable, but evidence lacked
credibility (Khujji @ Surendra Tiwari Vs St. of
M.P., AIR 1991 SC 1853; Sucha Singh Vs St. of
Punj., AIR 2003 SC 3617; Paramjeet Singh Vs
St. of Uttarakhand, AIR 2011 SC 200). (4) Delay
in FIR and lack of corroborative evidence further
weakened prosecution case. Conviction set
aside; appellants acquitted; appeal allowed.
(Paras 17-25)

Appeal Allowed.

Case Law Cited:

1. Khujji @ Surendra Tiwari Vs St. of M.P., AIR
1991 SC 1853 (Para 18)

2. Sucha Singh Vs St. of Punj., AIR 2003 SC
3617 (Para 19)

3. Paramjeet Singh Vs St. of Uttarakhand, AIR
2011 SC 200 (Para 20)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. List has been revised.

2. Heard learned Counsel for the
parties.

3. The present Criminal Appeal under
Section 374(2) of the Cr.P.C. has been filed
against the judgment and order dated
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
23.07.2008 passed by learned Additional
Special
Sessions
Judge/S.C.
&
S.T.
Act/F.T.C.-4, Court No.13, Sultanpur, in
Special Sessions Trial No.9/2007 "State vs.
Jagesar Verma and Others", arising out of
Case Crime No./Court Case No.5/2005,
relating to Police Station-Sangrampur,
District-Sultanpur, by which the appellants
have been convicted under Section 323/34
with a fine of Rs.300/- and in default of
payment of fine two months imprisonment.

4. The prosecution case in brief is that
the complainant as well as accused persons
are resident of same village. There was
some old enmity in between the parties. On
22.06.2005 at about 7:00 A.M., the accused
persons were building a chappar on the
agricultural land of the complainant, when
the complainant stopped them from placing
a chappar in her land, the accused persons
got annoyed and started abusing with
caustic words and caste language, and
thereafter, when the complainant raised her
voice they started beating the complainant,
her husband and daughter-in-law. On hue
and cry, the other family members reached
the spot and tried to save them, they were
also beaten brutally by the accused persons.
The report regarding aforesaid incident was
lodged on 27.09.2005 after moving an
application under Section 156(3) Cr.P.C.
before the concerned Magistrate, which
was registered as Court Case No.05/2005
under Section 323, 504 and 506 and
Section 3(1)(x) of SC/ ST Act and charge
sheet was submitted by the Investigating
Officer under Sections 323, 504 and 506
I.P.C. and Section 3(1)(x) of SC/ST Act on
29.10.2005.

5. Charges were framed by the court
below under Sections 323/34 and 506(2)
I.P.C. and Section 3(1)(x) of SC/ST Act.
The accused persons denied charges and
sought trial.

6.

Prosecution
examined
the
informant/complainant, Ram Lali, as P.W.1,
who reiterated the allegations mentioned in
the FIR and she proved the lodging of first
information
report.
Munnu
Lal
was
produced as P.W.-2, who stated that on the
date of incident he was present at the spot
but in his statement under Section 161
Cr.P.C., he clearly stated that one day
before the date of incident, he went to
Ganga river to take bath and returned on
the date of incident at about 7:30 A.M. i.e.
after the alleged incident, and further he
has not received any injuries in the alleged
incident, which clearly shows that he was
not present at the spot at the time of alleged
incident. P.W.-3, Phool Kali, testified
before the court that appellants had brutally
beaten the complainant and her family
members, she further stated that she tried to
save his Father-in-Law and Mother-in-law
but the accused persons beat her also, she
also admitted that a case is pending
regarding the land in dispute. P.W.-4, Dr.
Vinod Singh, stated that he has prepared
the injury report of P.W.1 and P.W.3 and
also stated that they complained about pain
in their body on the date of incident but the
time of injury was about 6:20 A.M. and
6:00 A.M on 23.06.2005 and further stated
that normally an injury caused by lathi
blow leaves mark on the body for two
weeks
but
when
P.W.1
came
for
examination, there was no mark of lathi
blow nor any kind of mark was seen on her
body and in respect of P.W.3 he stated that
during the course of examination, the
colour of injury caused to her was blue that
gives an impression that the injury was not
new. P.W.5 Ramhit Saroj, the inscribe of
F.I.R., did not state anything to falsify the
story of prosecution. P.W.6 Aditya Kumar
2 All. Babu Lal Vs. State of U.P.
1401
Shukl, Investigating Officer, stated that on
the basis of complaint made by the
complainant and statements of her family
members, he visited the site and created
site plan and he further stated that the land
in dispute belongs to the appellants for
which they have filed an application before
the Sud Divisional Engineer but the same
has not been verified. He further stated that
he
does
not
know
whether
the
complainant's husband is a security guard
or not but as he has taken his statements in
the present case, thus, he know him.

7. The accused were examined under
Section 313 Cr.P.C. and they denied their
involvements in the alleged incident and
they further stated that there was some old
enmity between the parties, therefore, they
have been roped in this case and the police
authorities also have falsely implicated
them in the present case due to village
politics.

8. The Doctor opined that the injuries
which were received by the P.W.1 and
P.W.3 were caused by friction nd no
opinion can be given. Duration about two
weeks and injuries were simple in nature.

9. The trial court exonerated all the
appellants from charges under Section
506(2) I.P.C. The trial court found that the
offence under Section 506 (2) I.P.C. has not
been proved against the appellants. The
trial court further observed that so far as the
charges under Section 3(1)(x) of the SC/ST
Act are concerned, P.W.1 and P.W.3 gave
contradictory statements, thus, trial court
observed that the words which were used
by the accused persons at the place of
incident were not meant for public
humiliation and consequently, exonerated
the appellants under Section 3(1)(x) of the
SC/ST Act, and offences under Section 323
read with Section 34 I.P.C. was found
proved against the appellants. They were
convicted and were awarded fine of
Rs.300/- each and in case of default of
payment, the appellants have to undergone
imprisonment for two months.

10. The counsel for the appellant has
submitted that the first information report
was lodged after filing an application under
Section
156(3)
Cr.P.C.
against
the
appellants only and thereafter questions
was made by the police stating whether the
informant/complainant will recognize the
accused
persons
and
informant/
complainant replied that she knows them
well as they resident of same village. He
has further submitted that no recovery of
any arm was made by the police from the
appellant as the incident took place in the
month of June, 2005 and report was lodged
in the month of September, 2005. He has
further submitted that the offences against
the appellants were not found to be proved
since allegation in the FIR was that
appellants
caused
injuries
to
the
informant/complainant by the lathi and
danda. The injuries from the lathi and
danda in the nature of contusion with
swelling and blue marks on injury. The
injuries
on
the
persons
of
the
informant/complainant and also the other
injured, Phool Kali, shows that they were
caused by friction and not by any hard and
blunt object. He has submitted that the
prosecution has failed to prove its case
beyond reasonable doubt but the court
below without applying its judicial mind
and without perusing the material facts
placed on record convicted the appellants
under Section 323/34 I.P.C. He has further
submitted that the doctor has given opinion
that the injuries were not caused due to
blow by lathi and danda, rather they appear
to be caused by friction and also they are
1402 INDIAN LAW REPORTS ALLAHABAD SERIES
simple in nature and they appear to be old
injuries.

11. Learned A.G.A. has opposed the
aforesaid arguments and has submitted that
the judgment of the court below is justified
and calls for no interference.

12. After having heard the rival
submissions of parties, the Trial Court
found appellants-accused guilty, therefore,
convicted and awarded them fine of
Rs.300/- each under Section 323/34 I.P.C.,
and in default of payment of fine, they shall
undergo imprisonment for two months.

13. Feeling aggrieved by the
judgment of conviction and sentence
passed by Trial Court, the appellantsaccused have preferred this appeal.

14.

Learned
Counsel
for
the
appellants has contended that the judgment
and order passed by the Trial Court is
wrong both on facts and law. The learned
trial court had misread and misconstrued
the statements of prosecution witnesses.

15. Opposing the contention of
learned Counsel for the appellant-accused,
the learned A.G.A. has contended that
sufficient evidence was given by the
prosecution to prove the factum of
assaulting the injured by the accused
persons, though, the F.I.R. could not be
lodged immediately due to inaction on the
part of police authorities, as such, the
impugned order does not require any
interference by this Court and the appeal is
liable to be dismissed.

16. Through out the web of the Criminal
Jurisprudence, one golden thread is always seen
that it is the duty of the prosecution to prove the
guilt of the accused. This burden of proof on
prosecution to prove guilt is also known as
presumption of innocence. The presumption of
innocence, sometimes refer to by the latin
expression "ei incumbit probatio qui dicit, non
qui negat" (the burden of proof is on one who
declares, not to one who denies) is the principle
that one is considered innocence unless proven
guilt. In criminal jurisprudence every accused is
presumed to be innocent unless the guilt is
proved. The presumption of innocence is a
human right. The prosecution may obtain a
criminal conviction only when the evidence
proves the guilt of accused beyond reasonable
doubt.

17. In the present case, almost all the
prosecution witnesses have stated their own
version of the prosecution story. Thus, the
testimony appears to be based on interested
witnesses from which guilt of accused may be
inferred.

18. Witnesses may be categorized into
three distinct categories. They may be wholly
reliable. Similarly there may be witnesses who
can be considered wholly unreliable. There is
no difficulty in placing reliance or disbelieving
his evidence when an evidence is wholly
reliable or wholly un-reliable, but difficulty
arises in case of third category i.e. where
witness is neither wholly reliable nor wholly
unreliable. Hostile/ interested witness ordinarily
falls in category of those witnesses who are
neither wholly reliable nor wholly unreliable. Hon?ble Apex Court in Khujji @
Surendra Tiwari Vs. State of M.P. AIR
1991 SC page 1853 was pleased to observe
as under :-

"The evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witnesses cannot be
2 All. Babu Lal Vs. State of U.P.
1403
treated as effaced or washed off the record
altogether, but the same can be accepted to
the extent their version is found to be
dependable on a careful scrutiny thereof."

19. The principle of ?falsus in uno
falsus in omnibus? (false in one thing, false
in everything) has no application in India.
It is duty of Court to separate grain from
chaff. Keeping in view the above principles
Hon'ble Apex Court in the case of Sucha
Singh v. State of Punjab, AIR 2003 SC
3617 was pleased to observe as under :-

"even if major portion of the evidence is
found to be deficient, in case residue is
sufficient to prove guilt of an accused, it is the
duty of the court to separate grain from chaff.
Falsity of particular material witness or
material particular would not ruin it from the
beginning to end. The maxim falsus in uno
falsus in omnibus (false in one thing, false in
everything) has no application in India and
the witness cannot be branded as a liar. In
case this maxim is applied in all the cases it
is to be feared that administration of criminal
justice would come to a dead stop. Witnesses
just cannot help in giving embroidery to a
story, however, truth is the main. Therefore, it
has to be appraised in each case as to what
extent the evidence is worthy of credence, and
merely because in some respects the court
considers the same to be insufficient or
unworthy of reliance, it does not necessarily
follow as a matter of law that it must be
disregarded in all respects as well."

20. Similarly in Paramjeet Singh v.
State of Uttarakhand; AIR 2011 SC 200 also
Hon'ble Apex Court was pleased to observe
as under:-

"When the witness was declared hostile
at the instance of the public prosecutor and
he was allowed to cross examine the witness
furnishes no justification for rejecting embloc
the evidence of the witness. However, the
court has to be very careful, as prima facie, a
witness who makes different statements at
different times, has no regard for the truth.
His evidence has to be read and considered
as a whole with a view to find out whether
any weight should be attached to it. The court
should be slow to act on the testimony of such
a witness; normally, it should look for
corroboration to his testimony".

21. It feels pain to observe that in our
present system of trial despite having
sufficient power to the judge to ask
questions to the witnesses in order to find
out truth, most of them do not ask questions
to the witnesses to shift the grain from the
chaff. Practice of leaving witnesses to the
Advocates, when a witness becomes hostile
or is a interested witness, is not uncommon in the trial Courts. Time and again
Hon'ble Apex Court has reminded that a
Judge does not preside over a criminal trial
merely to see that no innocent man is
punished, but a Judge also presides to see
that a guilty man does not escape. Both are
public duties, which the Judge has to
perform. Therefore, the trial Court must
shed their inertia and must intervene in all
those cases where intervention is necessary
for the ends of justice.

22. No proper explanation of injuries
on the person of injured witnesses have
been given. Mere suggestion is not
sufficient. Moreover it itself indicates a
false case. All the witnesses being the close
relatives, it is beyond apprehension that
they instead of naming out real culprit, they
would falsely implicate the accused persons
knowing them innocent.

23. This Court has gone through the
impugned judgment and evidence on
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
record. The trial court relying on the
testimony of witnesses, even though who
were interested witnesses, has concluded
that the accused had assaulted the injured
persons. Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said to be
reasonable.

24. It is established principle of law of
evidence that statement of witness is to be
read as a whole and conclusion should not
be drawn only by picking up a single
sentence of the statement of a witness. Thus
the trial court has overlooked the material
evidence available on record with regard to
guilt of accused and to that extent
conclusion drawn by the trial Court suffers
with patent infirmity and perversity and
therefore, liable to be reversed and set
aside.

25. Thus in view of above, after
analysis of circumstances of present case in
the
light
of
aforesaid
settled
legal
principles, I come to the conclusion that the
trial court has erred passing the impugned
judgment and order, therefore, this appeal
succeeds and is allowed. The judgment and
order dated 23.07.2008 passed by learned
Additional Special Sessions Judge/S.C. &
S.T. Act/F.T.C.-4, Court No.13, Sultanpur,
in Special Sessions Trial No.9/2007 "State
vs. Jagesar Verma and Others", arising out
of Case Crime No./Court Case No.5/2005,
relating to Police Station-Sangrampur,
District-Sultanpur, by which the appellants
have been convicted under Section 323/34
with a fine of Rs.300/- and in default of
payment of fine two months imprisonment
is set aside and reversed. The appellants,
namely, appellant no.1 Babu Lal, appellant
no.2, namely-Ram Asarey and appellant
No.3, namely-Raj Bahadur Verma are
acquitted of charges under Section 323/34.
Their personal bonds and surety bonds are
canceled and sureties are discharged.

26. Let record of lower Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2024) 2 ILRA 1404
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 3121 of 2023

Sudha Singh & Anr. ...Appellants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellants:
Anurag Shukla, Birendra Pratap Singh, Pankaj
Shukla

Counsel for the Respondent:
G.A.

Criminal Law - Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986 - Sections 2, 3, 14, 15, 16 & 17 -
Appellants
challenged
orders
dated
23/27.04.2022
(attachment
of
property),
16.08.2022 (rejection of representation), and
19.10.2023 (upholding attachment) by District
Magistrate, Amethi, and Special Judge, Gangster
Act, Sultanpur, under Section 14(1) of the
Gangster Act. Court held: (1) No material
evidence supported District Magistrate's belief
that properties were acquired by appellant no.2
through offences under the Gangster Act; orders
based on mere police reports and suspicion. (2)
Appellants provided evidence of legitimate
income sources (appellant no.1's business since
2015), rebutting presumption under Section 14.
(3) Properties acquired prior to 2022 Gangster
Act case; no nexus established between alleged
crimes and property acquisition. (4) District
Magistrate and trial court failed to conduct
proper inquiry under Sections 15, 16, and 17,