# Nanhaku Singh v. State of U.P

- **Citation:** (2024) 4 ILRA 1209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-16
- **Case number:** Criminal Appeal No. 3674 of 2016
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhaku-singh-v-state-of-u-p-51782
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Sections 302, 376, 201 & 3(2)(V)- Code
of Criminal Procedure, 1973 - Sections
374(2), 161, 313 & 437A - Criminal Appeal
Against Conviction and Sentence - Murder -
Rape - Causing Disappearance of Evidence -
Offence Against Scheduled Caste - Lack of
Evidence - Hearsay - Suspicion - False
Implication - Hostile Witnesses
The appellant, Nanhaku Singh, challenged the
judgment dated 23.06.2016 by the Additional
Sessions Judge, Court No. 2, Shahjahanpur, in
Sessions Trial No. 77 of 2013, convicting him
under Section 302 IPC (life imprisonment, Rs.
5,000 fine, 3 years additional imprisonment in
default), Section 376 IPC (life imprisonment,
Rs. 5,000 fine, 3 years additional imprisonment
in default), Section 3(2)(V) SC/ST Act (life
imprisonment,
Rs.
5,000
fine,
3
years
additional
imprisonment
in
default),
and
Section
201
IPC
(4
years
rigorous
imprisonment),
with
sentences
to
run
concurrently. The prosecution alleged that on
18.03.2012, the appellant raped and murdered
an 11-year-old girl from a Scheduled Caste,
whose body was found on 19.03.2012 near a
wheat field with multiple incised wounds, burn
injuries, and signs of sexual assault, based on
a written report by PW-1 (Premwati, the
deceased's
mother).
The
appellant
was
implicated due to alleged enmity over land
reclaimed by the informant's family. Held: (1)
The appeal was allowed, and the conviction
and sentence were set aside. (2) The
prosecution failed to prove the appellant's guilt
beyond reasonable doubt, as there was no
direct or circumstantial evidence; PW-1 and
PW-2 (parents) relied on hearsay without
identifying sources, and no
incriminating
material or weapon was recovered. (3) Key
witnesses (PW-3, PW-8, PW-9, PW-10) turned
hostile, and PW-4 (Neelam Kumari) denied
implicating the appellant. (4) The trial court's
conviction was based on suspicion of enmity,
which cannot substitute for evidence, and it
failed to evaluate the lack of proof. (5) The
appellant, incarcerated for over 12 years since
2012, was ordered released forthwith, subject
to Section 437A Cr.P.C., unless wanted in
another case. (6) The court expressed concern
over
the appellant's
prolonged
detention
without evidence but refrained from strictures
against the Investigating Officer and trial court.

## Text

4 All. Nanhaku Singh Vs. State of U.P.
1209
herein
since
the
allegations
of
the
prosecution and the defence thereto is still
open to be urged by the parties at the time
of final hearing of this case.

44. The application of the
appellants under Section 389(1) Cr.P.C.
stands disposed of.

In re : Criminal Appeal
1. Trial Court record has been
received.
2. Office is directed to prepare
paper book.
3. Let this matter be listed before
the appropriate Bench for final hearing
after preparation of paper book.
----------
(2024) 4 ILRA 1209
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.04.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3674 of 2016

Nanhaku Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anupam Tripathi, Sri Ashok Kumar Tripathi

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
The Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Sections 302, 376, 201 & 3(2)(V)- Code
of Criminal Procedure, 1973 - Sections
374(2), 161, 313 & 437A - Criminal Appeal
Against Conviction and Sentence - Murder -
Rape - Causing Disappearance of Evidence -
Offence Against Scheduled Caste - Lack of
Evidence - Hearsay - Suspicion - False
Implication - Hostile Witnesses
The appellant, Nanhaku Singh, challenged the
judgment dated 23.06.2016 by the Additional
Sessions Judge, Court No. 2, Shahjahanpur, in
Sessions Trial No. 77 of 2013, convicting him
under Section 302 IPC (life imprisonment, Rs.
5,000 fine, 3 years additional imprisonment in
default), Section 376 IPC (life imprisonment,
Rs. 5,000 fine, 3 years additional imprisonment
in default), Section 3(2)(V) SC/ST Act (life
imprisonment,
Rs.
5,000
fine,
3
years
additional
imprisonment
in
default),
and
Section
201
IPC
(4
years
rigorous
imprisonment),
with
sentences
to
run
concurrently. The prosecution alleged that on
18.03.2012, the appellant raped and murdered
an 11-year-old girl from a Scheduled Caste,
whose body was found on 19.03.2012 near a
wheat field with multiple incised wounds, burn
injuries, and signs of sexual assault, based on
a written report by PW-1 (Premwati, the
deceased's
mother).
The
appellant
was
implicated due to alleged enmity over land
reclaimed by the informant's family. Held: (1)
The appeal was allowed, and the conviction
and sentence were set aside. (2) The
prosecution failed to prove the appellant's guilt
beyond reasonable doubt, as there was no
direct or circumstantial evidence; PW-1 and
PW-2 (parents) relied on hearsay without
identifying sources, and no
incriminating
material or weapon was recovered. (3) Key
witnesses (PW-3, PW-8, PW-9, PW-10) turned
hostile, and PW-4 (Neelam Kumari) denied
implicating the appellant. (4) The trial court's
conviction was based on suspicion of enmity,
which cannot substitute for evidence, and it
failed to evaluate the lack of proof. (5) The
appellant, incarcerated for over 12 years since
2012, was ordered released forthwith, subject
to Section 437A Cr.P.C., unless wanted in
another case. (6) The court expressed concern
over
the appellant's
prolonged
detention
without evidence but refrained from strictures
against the Investigating Officer and trial court.

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J)
1210 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The present appeal has been
preferred by the accused appellant Nanhaku
Singh challenging the judgment and order
of
conviction
and
sentence
dated
23.06.2016, passed by the Additional
Session Judge, Court No.2, Shahjahanpur
in Session Trial No.77 of 2013 (State vs.
Nanhaku Singh) arising out of Case Crime
No.56 of 2012, Police Station Jaitipur,
District Shahjahanpur, whereby the accused
appellant has been convicted and sentenced
to life imprisonment under sections 302,
376 IPC and 3(2)(V) SC/ST Act with fine
of Rs.5,000/-, in default whereof he is to
further
undergo
three
years
rigorous
imprisonment; under section 201 IPC for
four year rigorous imprisonment. All the
sentences are to run concurrently.

2. Written report (Ex.Ka.1) given
by the informant is the basis of present
case, which alleges that on 18.03.2012 the
daughter of informant (PW-1), aged 11
years, had gone alone to fetch fodder from
the field. She did not return till 4-5 pm and
the family members got concerned. The
informant kept searching for his daughter
and ultimately the dead body of the
deceased daughter was found near the
wheat field of Bhubnesh Singh. There were
signs of injuries on neck and apprehension
was expressed that she was done to death.
The dead body was recovered at 08.00 am
on the next day i.e. 19.03.2012.

3. On the basis of written report
(Ex.Ka.1)
First
Information
Report
(Ex.Ka.2) was lodged at 10.30 am on
19.032.2012 as Case Crime No.56 of 2012
under Section 302 IPC, Police Station
Jaitipur,
District
Shahjahanpur.
Investigation proceeded in the matter.
Inquest (Ex.Ka.4) was conducted at 10.30
am on 19.03.2012. In order to ascertain the
cause of death the inquest witnesses opined
that the postmortem of deceased be
conducted. Consequently, the dead body
was sealed and sent to mortuary for
postmortem. The postmortem (Ex.Ka.8)
was conducted at 04.45 pm on the same
day. The Autopsy Surgeon determined the
cause of death as shock and haemorrhage
as a result of ante-mortem injuries.
Following ante-mortem injuries were found
on the deceased:-

"(i) Incised wound 2cm x 1 cm x
muscle deep over the right side chin 3cm
below from right angle of mouth margins
are clear cut and regular. Clotted blood
present in the wound.
(ii) Incised wound 1cm x .5cm x
muscle deep over the right side of chin 1cm
lateral to the injury no.1 margins regular
and clear cut. Clotted blood present in the
wound.
(iii) Incised wound 3cm x 1.5cm x
muscle deep over the left side face 2cm
medial to the ear tragus, margins regular
and clear cut. Clotted blood present in the
wound.
(iv) Incised would 1cm x 1cm x
muscle deep on the left side of face 1cm
medial to the left ear tragus, margins
regular and clear cut. Clotted blood present
in the wound.
(v) Incised wound 11cm x 5cm x
oesophagus deep over the front and lateral
aspect of neck some part of muscle, skin,
and underneath trachea and oesophagus
missing. Margins regular and clear cut.
Clotted blood present in the wound.
(vi) Incised wound 9cm x 3cm x
oesophagus deep over the front of neck just
above injury no.5 over part of skin and
muscle missing and underneath part of
trachea and oesophagus also missing and
both neck vessels found cut and separated.
Margins regular and clear cut. Clotted
blood present in the wound.
4 All. Nanhaku Singh Vs. State of U.P.
1211
(vii) Incised wound 8cm x 2cm x
trachea deep over the front of upper neck
just above injury no.6, some part of muscle
and underneath larynx and trachea also
missing and neck vessels cut and separated.
Margins regular and clear cut. Clotted
blood present in the wound.
(viii) 1st to 2nd degree burn injury
present over the front of chest 7cm x above
the right nipple margins blurred size
16x11cm.
(ix) 1st to 2nd degree burn injury
over the left clavicle 4cm lateral to medial
end of left clavicle. Margins blurred.
(x)
Lacerated
wound
present
around the labia minora and laceration
present in the both lateral aspect of anterior
1/3rd vaginal wall, hymen was also found
lacerated and some part of hymen missing,
margins irregular and clotted, blood present
in the wound. "

4.

Investigating
Officer
has
recovered the clothes, slippers etc. of the
deceased vide Ex.Ka.13 and has also
recovered a plastic sack and sickle (daranti)
etc. vide Ex.Ka.11. The Investigating
Officer has collected bloodstained earth
and plain earth vide Ex.Ka.10 as also
recovered bloodstained plants of wheat
crops vide Ex.Ka.13. Such recovered
materials
were
sent
for
scientific
investigation by the Forensic Laboratory.

5. Role of accused appellant
surfaced on the basis of information given
to the parents of the deceased by the family
members. The Investigating Officer, after
recording the statement of witnesses under
Section
161
Cr.P.C.,
concluded
the
investigation and submitted chargesheet
against
the
accused
appellant
under
Sections 302, 376, 201 IPC and 3(2)(V)
SC/ST
Act.
The
Magistrate
took
cognizance
on
the
chargesheet
and
committed the case to the Court of Sessions
where it got registered as Session Trial
No77 of 2013. Charges were framed
against
the
accused
appellant
under
aforesaid sections. On being read out the
charges to the accused appellant, he denied
the accusations made against him and
demanded trial.

6. The prosecution in order to
prove its case has exhibited various
documentary evidence, noticed above. In
addition to the exhibited documentary
evidence,
the
prosecution
has
also
produced the oral testimony of following
prosecution witnesses:

7. PW-1 (Premwati) is the first
informant/mother of deceased. In her
examination-in-chief, she has stated that
she has five daughters and on the date of
incident her husband as well as her eldest
son were working in Delhi. She has
supported the prosecution case that having
gone to fetch fodder from the field her
daughter disappeared and ultimately her
dead body was found near the field of
Bhubnesh and that her throat was slit and
she had no clothes on her. It is also stated
that clothes, slippers, sickle (daranti) etc.
were recovered from near vicinity of dead
body. The report was got scribed by
someone on the asking of the informant and
she placed her thumb impression on it. PW1 has also stated that she later came to
know that her daughter has been done to
death by accused appellant, who came in
possession over her agricultural land after it
was got released from accused appellant
about three years back, due to which he
maintained enmity.

In her cross-examination, PW-1 has
admitted that she has not seen the incident
and the contents of written report are based
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
on hearsay information received from
others. The person from whom such
information has been received has not been
identified. She has also stated that accused
appellant has five children and eldest
daughter is about 18-19 years of old. PW-1
has been elaborately examined in which
she has disclosed her family composition
and
except
to
state
that
she
has
apprehension that accused appellant had
committed the murder, there was no other
basis for her to implicate the accused
appellant. PW-1 has also admitted that
initially one Atul Kumar was apprehended
by the police whereafter Gopal Jatav was
arrested but both of them were released.
PW-1 has admitted that she has won the
election of member of Gram Panchayat
after defeating the wife of one Ram
Bharose. She has denied the suggestion that
on account of political dispute she has
falsely implicated the accused appellant.

8. PW-2 (Ram Charan) is the
father of deceased. In his examination-inchief he has stated that on account of
enmity accused appellant has committed
the offence as he got his land released from
him. In the cross-examination, PW-2 has
stated that he was not in the village and
only after death of the deceased he
returned. The source of information to
implicate the accused appellant by PW-2 is
also hearsay statement without specifying
the person from whom such information
was received.

9. Omveer has been produced as
PW-3, who has turned hostile during trial.

10. PW-4 (Neelam Kumari) is the
minor girl whose statement was recorded
by the police during investigation under
section 161 Cr.P.C. in which she alleged
that the deceased was done to death by the
accused appellant. In her statement before
the trial court PW-4 has denied having
given any information to the Investigating
Officer about complicity of the accused
appellant.

11. PW-5 (Rohil Husain) is the
Head Constable, who has proved the police
papers. PW-6 (K. P. Singh) is the Sub
Inspector, who has proved the inquest
papers.

12. PW-7 (A. K. Rai) is the
Autopsy Surgeon, who conducted the
postmortem of deceased. He has proved the
postmortem report and as per him ten
injuries were found on the deceased.

13. PW-7 (Balwant) is stated to be
an independent witness, who has turned
hostile during trial. PW-9 and PW-10 are
also the independent witnesses, who have
turned hostile and have not supported the
prosecution case.

14. PW-10 (Mukesh), PW-11
(Harirai Tripathi) and PW-12 (Vinay
Kumar Saroj) are the police personnel, who
have conducted the investigation in the
matter from time to time.

15. The accused appellant has been
confronted with the above incriminating
materials produced by the prosecution
during trial for recording his statement
under section 313 Cr.P.C. in which he has
denied the charges by stating that he has
been falsely implicated in the present case
while he is innocent.

16. It is on the basis of such
evidence led during trial by the prosecution
and upon consideration of the explanation
furnished by the accused appellant under
section 313 Cr.P.C. that the court below has
4 All. Nanhaku Singh Vs. State of U.P.
1213
come to the conclusion that the prosecution
has established its case beyond reasonable
doubt against the accused appellant and
found him guilty of committing the
offence. The court below has convicted and
sentenced the accused appellant vide
impugned judgment and order. Thus
aggrieved, the accused appellant is before
this Court in the present appeal.

17. Shri Ashok Kumar Tripathi,
learned counsel for the appellant submits
that this is a case in which accused
appellant has been falsely implicated only
on account of suspicion of the parents of
deceased. He submits that absolutely no
evidence of any kind has been produced by
the prosecution to prove the guilt of
accused appellant. Submission is that it is
neither a case of direct evidence nor any
circumstance adverse to accused appellant
has been produced so as to implicate him.
Argument is that without any cogent
evidence produced during trial against the
accused appellant he has remained in jail
for over twelve years and that as the trial
court has not correctly appreciated the
evidence on record, as such the judgment
of conviction and sentence is liable to be
set aside.

18. Learned A.G.A. for the State,
on the other hand, has supported the
judgment of conviction and sentence for
the reasons recorded therein.

19. We have heard learned counsel
for the parties and have perused the
materials brought on record, including the
original records of the court below.

20. Perusal of record would go to
show that the deceased was a girl aged
about 11 years, who died on account of ten
injuries caused to her. Her dead body was
recovered
at
about
08.00
am
on
19.03.2012. It is on the basis of information
received by family members that the
accused appellant has been implicated in
the present case.

21. We have carefully gone
through the evidence on record, which
consists of documentary evidence as well
as oral testimony. This is not a case of
direct
evidence
against
the
accused
appellant. This is also not a case falling in
the category of circumstantial evidence,
inasmuch as none of the circumstances
have been produced by the prosecution to
implicate the accused appellant.

22. PW-1 and PW-2 are the star
prosecution witnesses, who are parents of
the deceased. PW-2 admittedly was not
present in the village when the incident
occurred. PW-1 is the mother, who also
admits that she has not seen the accused
appellant committing the offence. She
claims to have learnt of the complicity of
accused appellant but no person has been
identified from whom information has been
received.
None
has
otherwise
been
produced who has either seen the incident
or any incriminating material against the
accused appellant has been produced.

23. Admittedly, there is no
recovery from the accused appellant. It is
also not the case that dead body has been
recovered on the pointing out of the
accused appellant. No weapon of assault
has been recovered from the appellant. In
the absence of any evidence produced by
the prosecution to implicate the accused
appellant, we are amazed as to how the
prosecution on the basis of such nonexistent material could either implicate the
accused appellant or the court of sessions
could have convicted the accused appellant.
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
24. The only basis to implicate the
accused appellant is the suspicion on
account of alleged reclaiming of land by
the informant from the accused appellant
about three years back. Mere apprehension
howsoever strong cannot be the substitute
for evidence which alone can justify
implication of an accused.

25. In the absence of evidence
worth the name we find it difficult to
approve the judgment of conviction and
sentence of the trial court in the facts of the
present case. It appears that the trial court
has not carefully examined the records and
in its anxiety to convict the accused has
proceeded to deliver the judgment even
without any evidence appearing on record
against the accused appellant.

26. We are also informed that the
accused appellant is in jail since 2012. It is
unfortunate that despite there being no
evidence against the accused appellant he
has been forced to remain in jail for over
twelve years. We are tempted to make
harsh observations not only against the
Investigating
Officer
but
also
the
Presiding Officer but we refrain from
doing so as they have not been heard in
the
matter.
Nevertheless,
we
are
disappointed by the manner in which a
person is incarcerated in jail for over
twelve years without any evidence against
him.

27. From the discussions and
deliberations held above, we have no
hesitation in coming to the conclusion that
the prosecution has failed to establish its
case against the accused appellant beyond
reasonable doubt. We also hold that the
court below has not evaluated the evidence
led during trial in correct perspective and,
therefore, the impugned judgement and
order of conviction and sentence is liable to
be reversed.

28. Consequently, the appeal
succeeds and is allowed. The judgment and
order of conviction and sentence dated
23.06.2016 is hereby set aside. The
appellant is acquitted of the charges
levelled against him. Since the appellant is
in jail, he shall be released forthwith, unless
he is wanted in any other case, subject to
compliance of section 437A Cr.P.C.

29. Copy of this judgment shall be
communicated
to
the
Chief
Judicial
Magistrate concerned as also the concerned
Superintendent
of
Jail
for
necessary
compliance.
----------
(2024) 4 ILRA 1214
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.04.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 4371 of 2005

Hari Bahadur ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vinod Kumar Tripathi, Sri Dilip Kumar
Kesharwani, Sri Noor Mohd., Sri Ram Sagar
Yadav, Sri S.K. Dubey

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Code of Criminal Procedure,
1973 - Sections 313, 374(2) & 433A -
Criminal
Appeal
Against
Conviction
and
Sentence - Murder - Eye-Witness Testimony -
Medical Evidence - Recovery of Weapon -