# Mohan Lal & Anr v. State of U.P

- **Citation:** (2022) 9 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Criminal Appeal No. 436 of 1991
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-lal-anr-v-state-of-u-p-49095
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 313 & 374 (2)
- Appeals from convictions - Indian Penal
Code, 1860 - Section 394 - voluntary
causing hurt in committing robbery -
testimony of inimical witnesses cannot be
accepted without corroboration - rule of
corroboration is not a mere formality, it
becomes more vital when the witnesses
are found interested one's .(Para - 20)

Enmity between informant and appellants -
appellant no.1 & appellant no.2 resident of
same village - belonging to rival party of
informant - no criminal antecedents - no
recovery of any robbed material - witnesses
inimical to appellants - statement of P.W.1 -
three witnesses won over - prosecution unable
to stand on its own legs - Investigation taken up
in a very lethargic and lackadaisical manner -
no
independent
witnesses
examined
by
prosecution - delay in lodging of FIR proved
fatal - chowki barely 3 kilometers from village -
medical examination of informant after a delay
of one and a half day also falsifies its
story.(Para -7,20,21,22,23)

HELD:-Trial Court overlooked discrepancies in
the prosecution case. Impugned judgement and
order found devoid of merits and liable to be set
aside.(Para -24)

Criminal appeal allowed. (E-7)

List of Cases cited:-

Sukhar Vs St. of U.P., (1999) 9 SCC 507

## Text

9 All. Mohan Lal & Anr. Vs. State of U.P.
65

58. The conviction and sentence
awarded under Section 302 IPC is set aside.
The accused Ramesh Yadav is convicted
under Section 304, Part I IPC and ten years
rigorous imprisonment and fine Rs.5,000/-
is awarded. In case of non-payment of fine
he shall undergo one year additional
rigorous imprisonment.

59. The conviction and sentencing
under section 307 IPC is set aside and the
conviction and sentence order passed under
section 324 IPC is maintained.

60. All the sentences shall run
concurrently. The incarceration period of
the accused shall be adjusted in accordance
with existing law.

61. A copy of this order be sent to the
lower court concerned along with the
record of the lower court and a copy also be
sent to the concerned Jail Superintendent
for necessary compliance.
----------
(2022) 9 ILRA 65
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Appeal No. 436 of 1991

Mohan Lal & Anr. ...Petitioners
Versus
State of U.P. ...Opposite Party

Counsel for the Petitioners:
Sri B.N. Rai, Sri Prabhat Kumar, Sri
Siddharth Niranjan, Sri Dharm Niranjan, Sri
Dharam Pal Singh (Sr. Counsel)

Counsel for the Opposite Party:
A.G.A.
(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 313 & 374 (2)
- Appeals from convictions - Indian Penal
Code, 1860 - Section 394 - voluntary
causing hurt in committing robbery -
testimony of inimical witnesses cannot be
accepted without corroboration - rule of
corroboration is not a mere formality, it
becomes more vital when the witnesses
are found interested one's .(Para - 20)

Enmity between informant and appellants -
appellant no.1 & appellant no.2 resident of
same village - belonging to rival party of
informant - no criminal antecedents - no
recovery of any robbed material - witnesses
inimical to appellants - statement of P.W.1 -
three witnesses won over - prosecution unable
to stand on its own legs - Investigation taken up
in a very lethargic and lackadaisical manner -
no
independent
witnesses
examined
by
prosecution - delay in lodging of FIR proved
fatal - chowki barely 3 kilometers from village -
medical examination of informant after a delay
of one and a half day also falsifies its
story.(Para -7,20,21,22,23)

HELD:-Trial Court overlooked discrepancies in
the prosecution case. Impugned judgement and
order found devoid of merits and liable to be set
aside.(Para -24)

Criminal appeal allowed. (E-7)

List of Cases cited:-

Sukhar Vs St. of U.P., (1999) 9 SCC 507

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Mr. Dharam Pal Singh,
learned Senior Counsel assisted by Sri
Siddharth Niranjan, learned counsel for the
appellants and Sri Vinod Kumar Singh
Parmar, learned AGA for the State.

2. Present Criminal Appeal under
Section 374(2) of the Cr.P.C. has been
preferred by accused-appellants Mohan Lal
and Sanjay Kumar against the judgment
66 INDIAN LAW REPORTS ALLAHABAD SERIES
and order dated 5.3.1991 passed by Special
Judge, D.A.A. Kanpur Dehat in Special
Sessions Trial No.33 of 1990 (State Vs.
Mohan
Lal
and
Another),
whereby
accused-appellants were convicted u/s 394
IPC and sentenced to three years rigorous
imprisonment.

PROSECUTION STORY:

3. On the basis of written report dated
29.9.1989 (Ex.Ka-1), an FIR was lodged by
informant Pratap Singh s/o Raghuveer Singh
with the allegation that in the night of
28/29.9.1989 at about 11:45 PM, when the
informant was sleeping along with his family
members in his house, four miscreants are
stated to have climbed up to the roof of his
house and started stealing the articles. Two of
the miscreants are stated to have taken the
boxes of his daughter-in-law with them to the
roof of the house and the other two miscreants
were in the courtyard of the house. The
informant and the inmates woke up on hearing
the noise and one of the miscreants at the roof
is stated to have thrown bricks upon the
informant injuring him on his head. Two
miscreants i.e. the appellants herein were
apprehended in the courtyard itself by the
informant with the help of his sons and people
of locality, namely, Dharam Pal, Madan Singh,
Chatrapal Singh etc. A list of the looted articles
was also given by the informant. The FIR of
the said incident was lodged by the informant
at the Police Station Gajner, Kanpur Dehat on
the very next date i.e. 08:30 AM and had taken
the two apprehended accused persons to the
police station along with him.

4. The arrested accused persons were
kept in the hawalat in the police station and a
quilt was provided to them. Investigation was
taken up by S.I. Jagroop Singh who after
recording the statement of the witnesses,
preparing the site plan etc., filed a charge-sheet
against the appellants u/s 394 IPC.

TRIAL

5. During trial, the prosecution chose to
examine the two witnesses of fact i.e. PW-1
Pratap Singh and PW-2 Dhirendra. The
Investigating Officer S.I. Jagroop Singh was
examined as PW-3.

6. PW-1 Pratap Singh has corroborated
the prosecution story as per the FIR and has
stated that the appellants were caught by him
and other inmates of the family with the help
of other members of the locality. He has also
stated that there was an enmity between the
appellants and the informant as the appellants
belong to the group of the present Gram
Pradhan and the informant belong to the other
party opposed to the Gram Pradhan. He has
proved the written report as Ex.Ka-1.

7. PW-2 Dhirendra is the son of the
informant.
He
has
corroborated
the
prosecution story but has also admitted the fact
that there was an enmity between the
informant and appellants.

8. PW-3 S.I. Jagroop Singh has proved
other documents although Constable Amar
Singh is their scribe i.e. FIR and G.D. of
institution of FIR i.e. G.D. No.15/8:30 AM
dated 29.9.1989. The formal proof of the
injury report was dispensed with by the
defense counsel so it also stood proved. The
charge-sheet was exhibited as Ex.Ka-4 and the
injury report dated 30.9.1989 at 11:30 AM was
exhibited as Ex.Ka-5.

9. The statement of the accusedappellants was recorded u/s 313 Cr.P.C. in
which both the accused persons have stated
that they have been falsely implicated due
9 All. Mohan Lal & Anr. Vs. State of U.P.
67
to previous enmity between the parties as
the appellants were ardent supporters of the
present Gram Pradhan.

RIVAL CONTENTIONS

10. At the outset, Sri Dharam Pal
Singh, learned Senior Counsel has stated
that the FIR is delayed by about 9 hours
and there is no explanation of said delay. It
is an admitted fact as it transpires from the
statement of PW-1 that the police station is
8 kilometers away from the place of
occurrence and the inordinate delay of 9
hours itself falsifies the prosecution story.
He has also stated that it has come up in the
statement of the PW-1 that there is a police
chowki at a distance of 3 kilometers away
from the village and during the said
intervening 9 hours, the informant or any
other members of the family or of the
vicinity did not care to inform the police
personnel posted at the police station or the
said chowki. A false explanation to the said
delay has been given by the informant that
out of fear, he did not go to lodge the FIR
while he has stated in his statement itself
that a lot of people of the locality have
gathered and even two of his sons were
also in the house at the time of the said
offence. There is nothing on record to
suggest that how the said fear factor was
overcome by the informant.

11. Learned Senior Counsel has also
stated that no weapon of crime or
incriminating material has been recovered
from the possession of the appellants. No
stolen/robbed property has been recovered
from their possession. Even no attempt has
been made by the Investigating Officer to
ascertain the identity of the other accused
persons who had run away and are stated to
have assaulted the informant by brick and
taken away the booty.

12. Learned Senior Counsel has
further stated that PWs-1 and 2 are the
interested witnesses as indicated in their
statements as there was a political rivalry
between the informant and the appellants.
The enmity is a double-edged sword as it
may be the cause of offence but may also
be cause of false implication. There is no
possibility of a person to rob a person in the
same village and that too, without muffled
faces.
The
witnesses
are
interested
witnesses, their sole interest was to get the
appellants convicted to settle political
scores.

13. Learned Senior Counsel has
further stated that no independent witness
has been produced by the informant as
prosecution
witness.
The
three
eye
witnesses named in the FIR i.e. Dharam Pal
Singh, Madan Singh and Chatrapal Singh
have not been examined.

14. Learned Senior Counsel has
further stated that a perusal of G.D. of
institution of crime i.e. G.D. No.15/8:30
AM dated 29.9.1989, which is exhibited as
Ex.Ka-3, categorically indicates that the
informant along with the appellants had
gone to the police station with four more
persons who are Sudhir Singh, Munna
Singh, Ashok and Upendra but none of
these witnesses have been examined as
prosecution
witnesses
which
clearly
indicates that the prosecution story is false
and lacks any credence. Learned Senior
Counsel has further stated that in the
aforesaid G.D. Ex.Ka-3, nothing has been
recovered from the possession of the
appellants except their clothes.

15. Learned Senior Counsel has also
pointed out that as per the statement of the
witnesses, the appellant no.1 Mohan Lal
was wearing a vest, although in the
68 INDIAN LAW REPORTS ALLAHABAD SERIES
villages, in the fag end of month of
September, it is quite cold in the night and
even Ex.Ka-3 itself indicates that a quilt
was provided to them at the police station.
It further falsifies the prosecution story.

16. Learned Senior Counsel has also
stated
that
the
informant
has
been
medically examined after inordinate delay
of one and a half day i.e. on 30.9.1989 at
about 11:20 AM. The said injury report
Ex.Ka-5 categorically indicates that injury
no.1 is lacerated wound 1cm x 1cm on the
left parietal bone 7cm above left ear. As per
opinion of doctor, the said injury is simple
in nature and caused by hard and blunt
object.

17. Learned Senior Counsel has also
stated that in the column of B/B i.e. the
person who had taken the injured person to
the hospital for examination, there is
overwriting of the word "Self" and later on,
the name of Homeguard Shyam Lal has
been added. It also indicates that the said
injury report has been prepared after much
delay in connivance with local doctor as
such he has not been examined by the
prosecution, although said fact finds
mentioned in Ex.Ka-3 itself.

18. Learned Senior Counsel has
indicated several other contradictions in the
statements of PWs-1 and 2. He has further
stated that there are various inconsistencies
in their statements. The star witnesses, who
are stated to have taken the appellants to
the police station or who had come on
hearing the shrieks of the informant and his
family members, have been withheld by the
prosecution which categorically shakes the
root of the prosecution story.

19. Per contra, Sri Vinod Kumar Singh
Parmar, learned AGA has vehemently
opposed the criminal appeal on the ground
that the enmity between the parties is proved,
the appellants have been apprehended within
the precincts of the house of informant.
Although he could not deny the fact that there
is no recovery from the appellants and no
independent witness has been examined.

CONCLUSION

20. It is an admitted fact that there was
an enmity between the informant and the
appellants. The appellant no.1 Mohan Lal is
the resident of the same village and the
appellant no.2 is the relative of a lady
residing in the same village belonging to the
rival party of the informant. It is true that in
the modern society, it is seen that no
independent person dares to depose against
the dreaded criminals but herein nothing has
come up in the judgement of the Trial Court
regarding any criminal antecedents of the
appellant. It is also an admitted fact that there
is no further criminal history of the appellants
during the pendency of the appeal. There is
no recovery of any robbed material from the
possession of the appellants. The witnesses
are inimical to the appellants as stated by the
witnesses of fact i.e. PW-1 and PW-2. It has
been settled by the Apex Court in Sukhar Vs.
State of U.P.1 that the testimony of inimical
witnesses
cannot
be
accepted
without
corroboration.
The
prosecution
has
deliberately withheld the seven independent
witnesses, who could have substantiated their
version. The rule of corroboration is not a
mere formality, it becomes more vital when
the witnesses are found interested one's. PW1 has stated that three of the witnesses have
been won over but he is silent on the other
four witnesses available, thus, the prosecution
is unable to stand on its own legs.

21. Investigation has been taken up in a
very lethargic and lackadaisical manner. The
Investigating Officer did not even care to
9 All. Annu Tandon & Ors. Vs. State
69
ascertain the whereabouts and identities of
other co-accused persons who are stated to
have accompanied the appellants. No effort
whatsoever
has
been
made
by
the
Investigating
Agency
to
recover
the
household items allegedly robbed in the said
incident.

22. The discrepancies indicated by the
learned Senior Counsel in the G.D. of
institution of crime (Ex.Ka-3) are vital as
none of the independent witnesses have been
examined by the prosecution. It is the
admitted fact that the instant case was
instituted in the absence of PW-3 S.I. Jagroop
Singh as he was busy in some other case and
he was entrusted the investigation after
institution at the police station, therefore, the
PW-3 is not the witness of the production of
the appellants at the police station. The only
other witness, who could have proved the
said production of accused-appellants by the
informant along with other persons of the
village, would have been the Constable 620
CP Amar Singh who has instituted the said
FIR at the police station and is also the
transcriber of the said G.D. However,
Constable Amar Singh has also not been
produced before the Court. Withholding of
these relevant witnesses does not help the
prosecution at all. The prosecution has to
prove its own case and has to stand on its
own legs. It is true that the instant case is not
of identification as the appellants were
known to the informant and other persons of
the locality but the factum of robbery is not
proved by the statements of PWs-1, 2 and 3
either. Withholding of material witnesses i.e.
seven in number does not help the
prosecution and categorically vitiates the
trial.

23. The delay in lodging of FIR has
proved fatal in this case as there was a
chowki barely 3 kilometers from the village
as admitted by the PW-1 in his crossexamination. This also shakes the very
version of the prosecution. The medical
examination of the informant after a delay of
one and a half day also falsifies its story.

24. Considering the aforesaid facts and
circumstances of the case and perusing the
record of the court below, this Court is of the
considered opinion that the learned Trial
Court
has
overlooked
the
aforesaid
discrepancies in the prosecution case. The
impugned judgement and order is found
devoid of merits and is liable to be set aside.

25. In view of the above, the appeal is
allowed. The impugned judgement and order
dated 5.3.1991 passed by Special Judge,
D.A.A. Kanpur Dehat in Special Sessions
Trial No.33 of 1990 (State Vs. Mohan Lal
and Another) is set aside.

26. The appellants Mohan Lal and
Sanjay Kumar need not surrender. Their bail
bonds are cancelled and sureties are
discharged.

27. Let a copy of this judgement along
with Lower Court Record be returned to the
court concerned forthwith for compliance. A
compliance report be also sent to this Court.
----------
(2022) 9 ILRA 69
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.09.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 638 of 2021

Annu Tandon & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants: