# Itwari & Ors v. State of U.P

- **Citation:** (2023) 9 ILRA 619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Criminal Appeal No. 335 of 1999
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/itwari-ors-v-state-of-u-p-50715
- **Pages:** 7

## Headnote

Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860- Sections 323/34, 504, 506 &
308/34-
Challenge
to-Conviction
statement of P.W.-1 as well as P.W.-2
show that they have supported the
prosecution case while their statements
were
recorded
under
Section
161
Cr.P.C. by the Investigating Officer,
however,
at
the
time
of
their
examination-in-chief, they had totally
denied the prosecution story, therefore,
they were declared hostile- 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- Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said
to
be
reasonable-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.(Para 1 to 41)
620 INDIAN LAW REPORTS ALLAHABAD SERIES
B. 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. 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.(Para
25, 26)
The appeal is allowed. (E-6)

List of Cases cited:

## Text

9 All. Itwari & Ors. Vs. State of U.P.
619
District-Bhadohi
(Gyanpur),
on
their
furnishing a personal bond and two sureties
(one should be family member) each in the
like amount to the satisfaction of the court
concerned.

(iii) In addition to this, all the
accused appellants would give a written
undertaking to learned trial court within a
week from their release on bail that they
would remain present in the court on the
framing and explaining those 'charges' to
them by the learned trial court. The trial
court would re-visit the entire material on
record once again so as to satisfied them
that there is sufficient material on record to
charge
the
accused
appellants
under
Section 302 IPC. The accused appellants
are under the legal obligation to remain
present in the court on the framing of
charge, at the stage of Section 313 Cr.P.C.
and in addition to this, as and when their
presence is required by learned trial judge
during trial. Any lapses on the part of the
accused appellants while adhering above
mentioned
conditions
would
warrant
serious
repercussion
including
the
cancellation of their bail bonds and taking
them into custody by the trial court itself
after recording its reasons.

38..

Consequently,
the
present
criminal appeal stands allowed and the
judgment and order is hereby quashed and
the matter is remanded back to the court
concerned for re-trial under the 'proposed'
alternative charge.
----------
(2023) 9 ILRA 619
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.
Criminal Appeal No. 335 of 1999

Itwari & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
A.R. Khan, Vimal Kishore Singh, Vishwa
Nath Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860- Sections 323/34, 504, 506 &
308/34-
Challenge
to-Conviction
statement of P.W.-1 as well as P.W.-2
show that they have supported the
prosecution case while their statements
were
recorded
under
Section
161
Cr.P.C. by the Investigating Officer,
however,
at
the
time
of
their
examination-in-chief, they had totally
denied the prosecution story, therefore,
they were declared hostile- 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- Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said
to
be
reasonable-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.(Para 1 to 41)
620 INDIAN LAW REPORTS ALLAHABAD SERIES
B. 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. 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.(Para
25, 26)
The appeal is allowed. (E-6)

List of Cases cited:

1. Paramjeet Singh Vs St. of UK (2011) AIR SC 200

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

3. Khujji @ Surendra Tiwari Vs St. of M.P.
(1991) AIR SC pg 1853

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

1 . List of cases has been revised and
the case is being taken up in the revised call
for hearing.

2. Heard learned counsel for the
parties and perused the record.

3. As per report of the Chief Judicial
Magistrate, Bahraich dated 11.12.2018, the
appellant no.1 Itwari had already expired
during pendency of this appeal, as such, the
appeal on his behalf stands abated. This
Court is proceeding in respect of appellant
no.2 Nabi Ullaha, appellant no.3 Rafi
Ullaha and appellant no.4 Mulzim.

4. The instant Criminal Appeal under
Section 374(2) Cr.P.C. has been moved on
behalf of the appellants against the order
dated
30.07.1999
passed
by
learned
Additional Sessions Judge, Bahraich in
Sessions Trial No.327 of 1994, under
Sections 323/34, 504, 506, 308/34 I.P.C.,
Police Station Risiya, District Bahraich,
whereby appellants have been convicted
and sentenced for six months rigorous
imprisonment under Section 323/34 I.P.C.,
two years rigorous imprisonment under
Section 506 I.P.C. and two years rigorous
imprisonment under Section 308/34 I.P.C.
All the sentenced were directed to be run
concurrently.

5. The prosecution case in brief is that
on 04.05.1993, the complainant, Abdul
Mannan had given a written report in
Police Station Risiya, District Bahraich
wherein it had been stated that accused
Itwari was fixing his son's (Nabi Ullaha)
marriage in the complainant's family. The
complainant's relative asked the Itwari
about his land and property, therefore, he
told the truth. As such, the complainant's
relative denied for the marriage and due to
this, Itwari got angry with relatives of the
complainant. On the date of incident at
about 07:00 A.M., when the uncle (Ashraf
Ali)
and
brother
(Ibrahim)
of
the
complainant were coming from market, the
accused persons caught them and abused
them in filthy languages and even assaulted
them with lathi and danda, as such, Ashraf
9 All. Itwari & Ors. Vs. State of U.P.
621
Ali and Ibrahim got severely injured. Due
to injury, Ibrahim got unconscious. On
seeing the incident, the nearby villagers
Aliullaha and Sabder Ali rescued the
injured persons.

6. On the basis of written report,
submitted by the first informant, Abdul
Mannan, the first information report was
lodged as Case Crime No.43 of 1993, under
Sections 308, 323, 504, 506 I.P.C. at Police
Station Risiya, District Bahraich.

7. T he case was handed over to
Investigating Officer, who visited the place
of occurrence, recorded the statement of the
witnesses and prepared the site plan and
after
completing
the
investigation,
submitted the charge sheet against the
appellants under Sections 308, 323 I.P.C.

8. On the basis of Charge-sheet
appellant-accused were summoned by the
Court and charges were framed against
them under Sections 323/34, 504, 506,
308/34
I.P.C.
The
appellants-accused
denied the charges and claimed to be tried.

9. Prosecution in order to substantiate
the charges against appellants-accused
examined P.W.-1 Ali Ullaha, an eye
witness,, P.W.-2 Safder Ali, an eye witness,
P.W.-3 Abdul Mannan, the complainant,
PW-4 Head Moharrir Chhavi Lal, who had
scribed the written complaint, PW-5
Ibrahim, the injured, P.W.-6 Ashraf Ali, the
injured, P.W.-7 Dr. Dharmvir Kumar, who
medically examined the injured, P.W.-8
Sub Inspector Satya Narain Tiwari, who
investigated the case.

10. Apart from above oral evidences,
the following documentary evidences were
also marked as follows. Written report as
Ex. Ka-1, Chik F.I.R. as Ex. Ka-3, Nakal
G.D. as Ex. Ka-4, Injury Report of Ibrahim
as Ex. Ka-5, Injury Report of Ashraf as Ex.
Ka-6, Site Plan as Ex. Ka-7 and Charge
Sheet as Ex. Ka-8.

11. After closing of the evidence,
statement of accused / appellants under
section 313 Cr.P.C. was recorded by the
trial court explaining the entire evidence
and other circumstances, in which the
appellants denied the prosecution story and
the entire prosecution story was said to be
wrong and concocted.

12. In order to substantiate the
defence case, accused appellants examined
Mohley as D.W.-1 before the trial court.

13. After having heard the rival
submissions of parties, the Trial Court
found appellants-accused guilty, therefore,
convicted and sentenced them for six
months
rigorous
imprisonment
under
Section 323/34 I.P.C., two years rigorous
imprisonment under Section 506 I.P.C. and
two years rigorous imprisonment under
Section 308/34 I.P.C.

14.
 Feeling
aggrieved
by
the
judgment of conviction and sentence
passed by Trial Court, the appellantsaccused have preferred this appeal.

15.

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.
The learned trial court had wrongly held
that the complainant Abdul Mannan, who
lodged the F.I.R., was a witness, had been
declared
hostile
and
in
the
crossexamination he admitted that the parties
had compromised the matter, thus, a part of
622 INDIAN LAW REPORTS ALLAHABAD SERIES
his statement could be relied upon. Other
witnesses have also not supported the
prosecution case.

16. Learned counsel for the appellants
has further contended that the learned trial
court had wrongly relied upon that when a
witness has been declared hostile, his
statement could be relied upon with some
extent. As such, he submits that the learned
trial court has erred in law and passed the
impugned order, therefore, the same is
liable to be set aside and the instant appeal
is liable to be allowed.

17. 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. The F.I.R. was also immediately
lodged and the prosecution witnesses have
also proved the commission of offence, as
such, the impugned order does not require
any interference by this Court and the
appeal is liable to be dismissed.

18. 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.

19. In the present case, almost all the
prosecution witnesses have turned hostile.
It is based on testimony of hostile
prosecution witnesses from which guilt of
accused may be inferred.

20. 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 witness ordinarily falls in category
of those witnesses who are neither wholly
reliable nor wholly un-reliable. 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
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."

21. The term "hostile witness" does
not find place in Evidence Act 1872 (herein-after referred as Act of 1872 for brevity).
It is a term borrowed from English Law.
Though in English Law to allow a party to
contradict its own witness was not
acceptable
view.
The
theory
of
9 All. Itwari & Ors. Vs. State of U.P.
623
contradicting its own witness was resisted
on the ground that party should be
permitted to discard or contradict his own
witness, which turns unfavorable to party
calling him, however, this rigidity of rule
was sought to be relaxed by evolving a
term "hostile" or "un-favourable witness"
in common law.

22. It is relevant to quote Section 154
(1) of the Act of 1872, which reads as
under:-

"the
Court
may,
in
its
discretion, permit the person who calls a
witness to put any question to him, which
might be put in cross examination by the
adverse party".

23. Sub-Section (2) of Section 154 of
Act of 1872, further provides that :-

"Nothing in this section shall
disentitle the person so permitted under
sub-section (1), to rely on any part of
evidence of such witness".

24. Thus discretion is vested in Court
to permit a person to put such question,
which may be put by adverse party, if
Court deems it appropriate. Thus the term
"hostile witness" has been borrowed from
English Law and developed in through case
Laws.

25. 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."

26 . 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
624 INDIAN LAW REPORTS ALLAHABAD SERIES
should look for corroboration to his
testimony".

27. Perusal of the statement of eye
witness P.W.-1 Ali Ullaha reveals that he
clearly stated during his examination in
chief that the complainant had lodged the
F.I.R. about 3 - 4 years ago, wherein he
was kept as an eye witness but he don't
know why the complainant made him an
eye witness as he had not seen the
incident nor he was present at the time of
incident.

28. Similarly P.W.-2 Safder Ali, an
eye witness also reiterated the same as
P.W.-1 Ali Ullaha. He also stated that he
don't know why the complainant made him
an eye witness as he had also not seen the
incident in question.

29. Further P.W.-3 Abdul Mannan is
the complainant and in his testimony in
examination in chief, he has totally
reiterated the version of F.I.R. and had
supported the prosecution story, whereas he
was not the eye witness of the alleged
incident.

30. PW-4 Head Moharrir Chhavi Lal
had stated in his testimony before the
learned trial court that he has scribed the
written report into first information report
and at the time of scribing, Ibrahim and
Ashraf were present.

31. P.W.-5 Ibrahim, the injured had
also reiterated the version of F.I.R. and had
supported the prosecution case. He also
stated that he was sent to Bahraich for his
medical examination.

32. P.W.-6 Ashraf Ali, the injured had
also reiterated the version of F.I.R. and had
supported the prosecution case.

33. P.W.-7 Dr. Dharmveer Dubey,
Orthopedic Surgeon, District Hospital,
Kanpur had stated in his examination-inchief that he had examined the injured
Ibrahim and injured Ashraf Ali on
04.05.1993 at about 08:30 A.M. The
injured persons were brought by Constable
CP 218 Ramesh Kumar Yadav. He had also
prepared medical report of the injured
Ibrahim as well as Ashraf Ali.

34. P.W.-8 Sub Inspector Satya
Narain Tiwari, Reader Superintendent of
Police, Allahabad had stated in his
examination of chief that on 04.05.1993 he
was posted as Station House Officer of
Police Station Risiya, District Bahraich. He
was entrusted with the investigation of
present case, thereafter, he concluded the
investigation.

35. D.W.-1 Mohley had stated in his
testimony before the trial court that he
knew the accused persons as well as the
injured persons and he further stated that no
such incident as alleged by the prosecution
took place.

36. Perusal of statement of P.W.-1 Ali
Ullaha as well as P.W.-2 Safder Ali show
that they have supported the prosecution
case while their statements were recorded
under
Section
161
Cr.P.C.
by
the
Investigating Officer, however, at the time
of their examination-in-chief, they had
totally denied the prosecution story. There
can be no two opinion that these witness
turned hostile on account of pressure
exerted upon them by the accused persons.
They refused to state truth about the
occurrence, and therefore, they were
declared hostile. They were required to
submit their explanation regarding their
previous statement given under Section 161
Cr.P.C. supporting the prosecution case.
9 All. Prem & Ors. Vs. State of U.P.
625

37. 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, is not un-common 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.

38. 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.

39. This Court has gone through the
impugned judgment and evidence on
record. The trial court relying on the
testimony of witnesses, even though who
were declared hostile, 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.

40. 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.

41. 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
30.07.1999 passed by learned Additional
Sessions Judge, Bahraich in Sessions Trial
No.327 of 1994, under Sections 323/34, 504,
506, 308/34 I.P.C., Police Station Risiya,
District Bahraich is set aside and reversed.
The appellants, namely, appellant no.2 Nabi
Ullaha, appellant no.3 Rafi Ullaha and
appellant no.4 Mulzim are acquitted of
charges under Sections 323/34, 506, 308/34
I.P.C. Their personal bonds and surety bonds
are canceled and sureties are discharged.

42. L et record of lower Court be sent
back to Court concerned along with copy of
judgment and order for information.
----------
(2023) 9 ILRA 625
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 520 of 1999

Prem & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party