# Mohd. Nabi @ Munna v. State of U.P

- **Citation:** (2024) 3 ILRA 1288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Criminal Appeal No. 414 of 2000
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-nabi-munna-v-state-of-u-p-51567
- **Pages:** 9

## Headnote

Law
-
Appeal
against
Conviction - Indian Penal Code, 1860 -
Section 436 - Mischief by fire or explosive
substance with intent to destroy house -
Burden
of
proof
-
Presumption
of
innocence - Evaluation of evidence -
Witnesses - three distinct categories -
wholly reliable, wholly unreliable, neither
wholly reliable nor wholly unreliable -
Hostile witness ordinarily falls in category
of those witnesses who are neither wholly
reliable nor wholly un-reliable - Same
treatment required to be given to the
defence witness(es) as is to be given to
the prosecution witness(es) - Court is
concerned with the quality and not with
the quantity of the evidence necessary for
proving or disproving a fact - Accused
must be and not merely may be guilty
before a court can convict and a mental
distinction between 'may be' and 'must be'
is long and divided vague conjectures
from sure conclusions. (Para - 19 ,33,34 ,
36)

(B) Evidence Law - Evidence Act 1872 -
Section 154(1) , (2) - Question by party to
his own witness - 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 - held - Trial court had 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 -41)

(C) Practice & Procedure - Judges must
proactively
interrogate
witnesses
to
distinguish truth from falsehood rather
than leaving it entirely to the advocates -
Trial Court must shed their inertia and
must intervene in all those cases where
intervention is necessary for the ends of
justice. (Para -37)

(D) Words or Phrases - Presumption of
Innocence - "ei incumbit probatio qui
dicit, non qui negat" (the burden of proof
is on one who declares, not to one who
denies): an accused is considered innocent
until proven guilty - It is the duty of the
prosecution to prove the guilt of the
accused. Hostile Witness: witness who
contradicts their earlier statements or acts
unfavorably towards the party that called
them. Falsus in Uno, Falsus in Omnibus
(false in one thing, false in everything): A
principle not applied in Indian law,
emphasizing the need to separate reliable
testimony from falsehoods - duty of Court
to separate grain from chaff. (Paras 17,
19,
24,
27)
3 All. Mohd. Nabi @ Munna Vs. State of U.P.
1289
Appellant convicted for burning canteen in court
premises - prosecution relied on testimony of
several witnesses, including informant and an
eyewitness - witnesses were declared hostile
and their testimony was inconsistent defense,
on the other hand, presented witnesses who
claimed that the fire was accidental - Appeal
against conviction.(Para - 1-8, 26-32)

HELD: - Trial court failed to circumspect the
material on record carefully and had erred
passing the impugned judgment and order.
Prosecution failed to prove the guilt of the
accused beyond a reasonable doubt. Conviction
under Section 436 IPC set aside. Appellant
acquitted. (Para - 35,42)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

1288 INDIAN LAW REPORTS ALLAHABAD SERIES
realized by the court below in accordance
with law.

13. A certified copy of the order be
also sent to the court concerned for
compliance.

14. Office is directed to communicate
this order to the court concerned for
necessary compliance.

15. Record of trial court, if any, shall
also be sent back to the district court
concerned.
----------
(2024) 3 ILRA 1288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 414 of 2000

Mohd. Nabi @ Munna ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Murli Manohar Srivastava ,Nadeem Murtaza,
Praveen Kumar Yadav, Qazi Sabihur Rahman,
Rajesh Mishra

Counsel for the Respondent:
Govt Advocate

(A)
Criminal
Law
-
Appeal
against
Conviction - Indian Penal Code, 1860 -
Section 436 - Mischief by fire or explosive
substance with intent to destroy house -
Burden
of
proof
-
Presumption
of
innocence - Evaluation of evidence -
Witnesses - three distinct categories -
wholly reliable, wholly unreliable, neither
wholly reliable nor wholly unreliable -
Hostile witness ordinarily falls in category
of those witnesses who are neither wholly
reliable nor wholly un-reliable - Same
treatment required to be given to the
defence witness(es) as is to be given to
the prosecution witness(es) - Court is
concerned with the quality and not with
the quantity of the evidence necessary for
proving or disproving a fact - Accused
must be and not merely may be guilty
before a court can convict and a mental
distinction between 'may be' and 'must be'
is long and divided vague conjectures
from sure conclusions. (Para - 19 ,33,34 ,
36)

(B) Evidence Law - Evidence Act 1872 -
Section 154(1) , (2) - Question by party to
his own witness - 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 - held - Trial court had 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 -41)

(C) Practice & Procedure - Judges must
proactively
interrogate
witnesses
to
distinguish truth from falsehood rather
than leaving it entirely to the advocates -
Trial Court must shed their inertia and
must intervene in all those cases where
intervention is necessary for the ends of
justice. (Para -37)

(D) Words or Phrases - Presumption of
Innocence - "ei incumbit probatio qui
dicit, non qui negat" (the burden of proof
is on one who declares, not to one who
denies): an accused is considered innocent
until proven guilty - It is the duty of the
prosecution to prove the guilt of the
accused. Hostile Witness: witness who
contradicts their earlier statements or acts
unfavorably towards the party that called
them. Falsus in Uno, Falsus in Omnibus
(false in one thing, false in everything): A
principle not applied in Indian law,
emphasizing the need to separate reliable
testimony from falsehoods - duty of Court
to separate grain from chaff. (Paras 17,
19,
24,
27)
3 All. Mohd. Nabi @ Munna Vs. State of U.P.
1289
Appellant convicted for burning canteen in court
premises - prosecution relied on testimony of
several witnesses, including informant and an
eyewitness - witnesses were declared hostile
and their testimony was inconsistent defense,
on the other hand, presented witnesses who
claimed that the fire was accidental - Appeal
against conviction.(Para - 1-8, 26-32)

HELD: - Trial court failed to circumspect the
material on record carefully and had erred
passing the impugned judgment and order.
Prosecution failed to prove the guilt of the
accused beyond a reasonable doubt. Conviction
under Section 436 IPC set aside. Appellant
acquitted. (Para - 35,42)

Appeal allowed. (E-7)

LIST OF CASES CITED: -

1. Khujji @ Surendra Tiwari Vs St. of M.P., AIR
1991 SC page 1853

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

3. Paramjeet Singh Vs St. of Uttarakhand; AIR
2011 SC 200

4. Mahendra Singh & ors. Vs St. of M.P., (2022
7 SCC 157)

5. Vadivelu Thevar Vs St. of Madras; 1957 SCR
981: AIR 1957 SC 614

6. Suresh Narain Tripathi & ors. Vs St. of U.P. &
ors., 2005 Cril LJ 2479

(Delivered by Hon'ble Shamim Ahmed, J)

1. Heard Sri Nadeem Murtaza,
learned counsel for the appellant and Sri
Ashok Srivastava, learned A.G.A. for the
State as well as perused the record.

2. By means of the instant criminal
appeal, the appellant has challenged the
judgment and order dated 26.04.2000
passed by learned Second Additional
Sessions Judge, Lucknow in Sessions Trial
No.192 of 1995, convicting and sentencing
the appellant under Section 436 I.P.C. for
three years rigorous imprisonment.

3. The prosecution story as narrated in
the First Information Report registered as
Case Crime No.27 of 1991, under Sections
436 I.P.C. at Police Station Kaiserbagh,
Lucknow on 23.04.1991 by one Shiv Das
alleging therein that his son has been
allotted a canteen in the compound of
American
Library
Court
where
the
informant was present on 23.01.1991
alongwith his two workers. At about 08:30
AM, the appellant who is an employee of
Civil Court, allegedly came and asked for
Suraj (Son of the informant), upon which,
the informant told the appellant that he will
come to canteen at about 11:00 A.M.,
hearing this, the appellant allegedly poured
kerosene oil over the canteen and set the
same on fire, due to which, not only the
canteen was burnt but chamber of an
advocate was also burnt.

4. Pursuant to the registration of the
First Information Report, the police carried
out investigation and submitted chargesheet
against the appellant under Section 436
I.P.C. on 17.05.1991. The matter being
triable by the court of sessions, was
committed to the Sessions Court for trial
where charge under section 436 IPC was
framed against the appellant, who pleaded
not guilty to the aforesaid charge and
claimed to be tried.

5. In order to bring home the charge
under
section
436
IPC
against
the
appellant,
the
prosecution
produced
following four persons as prosecution
witnesses:-

(i) P.W.-1 Shivdas, Informant
(alleged eye witness)

(ii) P.W.-2 Constable Girdhar
Singh (Proved chik FIR and General Diary
entry)
1290 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
P.W.-3
Vijay
Kumar,
Employee of the Canteen (Alleged Eye
Witness)

(iv)
P.W.-4
Durgesh
Kumar
Tiwari, Investigating Officer.

6. The appellant in his statement
under section 313 CrPC denied the case of
prosecution and produced following two
witness in his defence;-

(i) DW-1 Ajeet Singh Yadav, Clerk
of Advocate whose chamber was burnt

(ii)
DW-2
Mahendra Pratap
Singh, Advocate

7. After having heard the rival
submissions of parties, the Trial Court
found appellant-accused guilty, therefore,
convicted and sentenced him under Section
436
I.P.C.
for
three years
rigorous
imprisonment.

8. Feeling aggrieved by the judgment
of conviction and sentence passed by Trial
Court, the appellant-accused has preferred
this appeal.

9. Learned counsel for the appellant
submitted that the learned trial court has
convicted the accused on the testimonies of
the prosecution witnesses ignoring that
their testimonies are full of infirmities and
contradictions. PW-1 failed to assign any
motive for the alleged offence throughout
the entire prosecution story. Even he fails to
recall the date, time and year of the alleged
incident. PW-1 also failed to explain as to
why he did not try to stop and catch the
appellant. Moreover, his version that an
Advocate went to police station along with
him belied by PW-2, namely, constable
Girdhar Singh, thus, making him unreliable
witness.

10. Learned counsel for the appellant
further submitted that same is the case with
PW-3
whose
testimony
inspires
no
confidence.

11. Learned counsel for the appellant
further submitted that on the other hand the
defence witnesses are more reliable and
their version seems to inspire much more
confidence than that of prosecution. DW-1
who happens to be the clerk of an
Advocate, whose seat got burnt, clearly
stated that fire accident in the instant case
was the result of the carelessness of the
child employee of the Canteen who was
trying to fill the Air in the stove.

12. Learned counsel for the appellant
further submitted that likewise DW-2 who
happens to be an Advocate stated that the
fire accident corroborates the version of
DW-1 effectively and confirms that the fire
accident was the result of the carelessness
of the child employee of the Canteen who
was preparing the stove in order to make
tea.

13. Learned counsel for the appellant
further
submitted
that
clearly
the
prosecution story appears to be a wholly
unreliable and the the prosecution has
completely failed to prove its case beyond
the realm of reasonable doubt and the
learned
Trial
Court
has
erroneously
neglected the entire defence version.

14. Learned counsel for the appellant
further submitted 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 and
even other witnesses have also not
supported the prosecution case.

15. Learned counsel for the appellant
has further contended that the learned trial
court had wrongly relied upon that when a
3 All. Mohd. Nabi @ Munna Vs. State of U.P.
1291
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.

16. 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
committing the crime i.e. burning of
canteen wherein a chamber of an Advocate
was also burnt. 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.

17. After hearing the argument
advanced by learned counsel for the parties,
this Court is of the view that 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.

18. 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.

19. 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."

20. 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
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
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
calling him, however, this rigidity of rule
was sought to be relaxed by evolving a
term "hostile" or "un-favourable witness"
in common law.

21. 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".

22. 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".

23. 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.

24. 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."

25. Similarly in Paramjeet Singh v.
State of Uttarakhand; AIR 2011 SC 200
also Hon'ble the Supreme Court of India
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".

26. Before proceeding further, it
would be necessary to discuss all the
prosecution witnesses as well as the
defence
witnesses
alongwith
their
testimonies, which are being discussed as
under:-
3 All. Mohd. Nabi @ Munna Vs. State of U.P.
1293

PROSECUTION WITNESSES

27. PW.1-Informant Shivdas :- A
perusal of the star witness of the
prosecution case namely PW-1 Shivdas
shows that although in the FIR he had
stated that the chamber of an Advocate was
also burnt due to fire caused by the
appellant, however surprisingly, in his
statement recorded before the trial court, he
has stated that only a portion of the takhta
of one Advocate was burnt. This witnesses
further stated that FIR was scribed by one
clerk of the Court however surprisingly he
failed to name the said scribe. According to
this witness many people gathered after the
canteen was set on fire but not even a
single independent witness was produced
by the prosecution to prove its case.

In his Cross Examination, the
PW-1 has stated that he went to lodge the
First
Information
Report
with
one
Advocate, however, no such advocate was
produced as a witness by the prosecution.
This witness stated to have known the
appellant from past 7 years from the
alleged date of incident and he stated that
the appellant was a regular customer of the
canteen and he never used to keep any
dues.

The entire testimony of the PW-1
is silent about any motive which the
appellant might have for the commission of
the alleged offence.

28. PW-2 Girdhar Singh:- The
aforesaid witness i.e. PW-2 Girdhar Singh,
although is a formal witness who has
proved the Chik FIR as well as G.D. Entry
regarding the registration of the First
Information Report, however, the aforesaid
witness has stated that PW-1 came alone
for registration of FIR and no advocate
accompanied him. The said fact totally
contradicts the version of the PW-1
wherein he has stated that he went to the
police station along with one Advocate.

29. PW-3 Vijay Kumar:- PW-3 Vijay
Kumar is alleged to be one of the employee
of the canteen and has claimed to have seen
the incident, however, his testimony is also
full of contradictions and, as such, the same
is unworthy of any credit. PW-3 has also
claimed to have accompanied the informant
to the police station for registration of FIR,
however,
the
said
claim
is
totally
contradictory to the statements of PW-1
who has stated to have visited police station
along with one Advocate. Version of PW-3
is also contrary to the testimony of PW-2
Constable Girdhar Singh who has stated
that the informant came alone for the
registration of FIR.

This
witness
stated
in
his
testimony that he has come to testify on the
instructions of his Employer Suraj, thus,
making his entire version infirm and
unworthy of credit.

30. PW-4 Durgesh Kumar Tiwari:-
PW-4 Durgesh Kumar Tiwari happens to be
the Investigating officer of the instant case
who stated that he was assigned the
investigation on 23.01.1991 itself. The
witness stated to have recovered burnt
ashes from the alleged place of incident.
This
witness
further
stated
that
he
submitted the chargesheet under section
436 of IPC against the appellant in the
court on 3.01.1996.

In the Cross Examination this
witness stated that he fails to recall that the
seat of Advocate Bhola Prasad was situated
near the said canteen and he also failed to
recall whether the seat was burnt or not.
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

It is pertinent to mention here that
Cross examination of the P.W.-4 reveals
that he did not record the statement of the
Canteen Owner, namely, Suraj. He further
stated that he failed to record the statement
of any Advocate and he also stated that he
failed to record the statement of anyone
who could have been the eye witness of the
said incident. This witness also failed to
recognize the location of the alleged place
of incident.

DEFENCE WITNESSES

31. DW-1 Ajit Singh Yadav:- This
witness happens to be the clerk of an
Advocate whose seat got burnt. This
witness stated that the appellant was neither
present at the place of incident nor he
committed the offence. He further stated
that the fire was the result of the mistake of
one child employee of the canteen, who
was filling the air in the stove. He further
stated that as soon as the child employee lit
the matchstick to light the stove, whole
canteen as well as his seat caught fire.

32. DW-2 Mahendra Pratap Singh:-
He is an Advocate and stated that on the
fateful day at about 8:20 AM, he reached
the canteen and asked its owner Suraj for a
cup of tea. Suraj instructed his worker to
make the tea and while his worker was
trying to light the stove to make the tea, the
whole canteen caught fire and the whole
canteen was reduced to ashes. This witness
also stated that subsequently Shivdas (PW1) who happens to be the proprietor of the
Canteen
started
inquiring
from
the
appellant and it ultimately led to the heated
argument between the two. Thereafter, the
PW-1 lodged the First Information Report
against the appellant due to animosity
arising out of the said scuffle.

33. Hon'ble the Supreme Court of
India in the case of Mahendra Singh and
Others Versus State of Madhya Pradesh;
(2022 7 SCC 157) was pleased to observe
at para 20 as under:-

"20. It is a settled law that same
treatment is required to be given to the
defence witness(es) as is to be given to the
prosecution witness(es)."

34. Further, Hon'ble the Supreme
Court of India in the case of Vadivelu
Thevar v. State of Madras; 1957 SCR
981: AIR 1957 SC 614 was pleased to
observe at para 11 & 12 as under:-

"11...........it is a sound and wellestablished rule of law that the court is
concerned with the quality and not with the
quantity of the evidence necessary for
proving or disproving a fact. Generally
speaking, oral testimony in this context may
be classified into three categories, namely:

(1) Wholly reliable,

(2) Wholly unreliable

(3) Neither wholly reliable nor
wholly unreliable.

12. In the first category of proof
the court should have no difficulty in
coming to its conclusion either way it may
convict or may acquit on the testimony of a
single witness if it is found to be above
reproach or suspicion of interestedness,
incompetence, or subornation. In the
second category the court equally has no
difficulty to its conclusion. It is in the third
category of cases that the court has to be
circumspect
and
has
to
look
for
corroboration in the material particulars
3 All. Mohd. Nabi @ Munna Vs. State of U.P.
1295
by
reliable
testimony
direct
or
circumstantial........."

35. After a careful perusal of all the
testimonies of prosecution witnesses as
well as defence witnesses, this Court finds
that the learned trial court had failed to
circumspect
the
material
on
record
carefully.

36. Further, a Division Bench of this
Court in the case of Suresh Narain
Tripathi and others versus State of Uttar
Pradesh and Others; 2005 Cril LJ 2479,
granted acquittal for the offence under
section 436 of IPC where the star witnesses
were unreliable and was pleased to observe
at para 13 as under:-

"13. Certainly, it is the primary
principle that the accused must be and not
merely may be guilty before a court can
convict and a mental distinction between
'may be' and 'must be' is long and divided
vague conjectures from sure conclusions."

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 have been given.
Mere suggestion is not sufficient. Moreover
it itself indicates a false case. All the
witnesses being the close to each other, 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
have not supported the prosecution case,
has concluded that the accused had burnt
the canteen. Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said to be
reasonable.

40. In the present case, the learned
trial court has also failed to consider the
fact that the alleged incident is said to have
taken place in the court compound at 11:00
A.M. and the prosecution has failed to
produce any Advocate or any other staff of
court to prove its case. Further, on the other
hand, the presence of D.W.-1 and D.W.-2,
who were clerk and advocate respectively
and their presence is quite natural in the
court premises. The defence witnesses
ought to have been considered by the trial
court. Thus, this Court finds that the
prosecution
failed
to
establish
that
appellant in all probability has committed
the said offence.

41. It is also an 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
had
overlooked the material evidence available
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

42. 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 26.04.2000 passed by learned
Second
Additional
Sessions
Judge,
Lucknow in Sessions Trial No.192 of 1995,
convicting and sentencing the appellant
under Section 436 I.P.C. for three years
rigorous imprisonment, is set aside and
reversed.
The
appellant,
namely,
Mohd.Nabi @ Munna is acquitted of
charge under Section 436 I.P.C. His
personal bond and surety bonds are
canceled and sureties are discharged.

43. Let record of Trial Court be sent
back to the Court concerned along with
copy
of
judgment
and
order
for
information.
----------
(2024) 3 ILRA 1296
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Criminal Appeal No. 465 of 1999

Surednra Prasad Misra & Anr.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Appellants:
Arun Sinha, Anurag Singh Chauhan

Counsel for the Respondents:
G.A., Abhinandan Kumar Pandey

(A) Criminal Law - Jurisdiction of High
Court in issuing non-bailable warrants in
appeals - role and discretionary powers of
Magistrates in handling bail for accused
persons in such cases - Indian Penal Code,
1860 - Section 302 r.w. 34, 82/83 ,
Section 390 - Arrest of accused in appeal
from acquittal - The Allahabad High
Court Rules, 1952 - Chapter V Rule 6 -
Reference to a larger Bench.

(B) Words or Phrases -Interpretation of
"non-bailable
warrant"
in
appellate
jurisdiction and "discretionary power of
magistrates"
for
bail
in
appeal
proceedings. (Paras 24-34)

Appellants were convicted under Section 302
IPC
for
murder
and
sentenced
to
life
imprisonment - initially granted bail but were
later directed to be taken into custody when
they failed to appear before High Court for the
appeal hearing - issues related to - issuance
and execution of non-bailable warrants in
criminal
appeals,
especially
concerning
appellants who have previously been acquitted
or convicted - Jurisdiction of Magistrates in
Matters of Bail Post-Issuance of Non-Bailable
Warrants by Higher Courts - warrants are issued
at a later stage of the appeal rather than at
admission - use of Amicus Curiae when
appellants fail to appear. (Paras - 1 to 3 ,18 to
62)

HELD: - High Court referred to crucial
procedural
issues
regarding
issuance
and
execution
of
non-bailable
warrants
and
discretionary bail powers in appeals to a Larger
Bench to establish a consistent approach across
similar cases. (Paras 58-62)

Matter referred for consideration by a
Larger Bench. (E-7)

LIST
OF
CASES
CITED:
-