# Nanhey Lal Yadav v. The State of U.P

- **Citation:** (2021) 8 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Criminal Appeal No 1148 of 2001
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhey-lal-yadav-v-the-state-of-u-p-47237
- **Pages:** 8

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 376, 506(2) -
challenge
to-conviction-The
medical
evidence contradicts oral evidence as
according to the first information report,
the prosecutrix was 14 years of age
whereas in the medical examination her
age has been found to be 18 years. No
mark of injury has been found on the body
and also on the private part of the
prosecutrix whereas in her testimony
P.W.1 has stated that she had received
scratches over her body and mouth. Thus,
this
part
of
the
evidence
of
the
prosecution is falsified by the medical
report. The prosecutrix has been found to
be used to sexual intercourse. The Doctor
has not given any opinion about rape.
Even the investigating officer has not
corroborated the prosecution story as he
has not found any broken Jwar plants as
stated by the prosecutrix. He has also
contradicted the statement of P.W.2 to the
extent that it is P.W.2 who showed the
place of occurrence to him and then he
prepared the site plan, whereas P.W.2
says that he never returned to the place of
occurrence again. Every part of evidence
of P.W.1 is contradictory, improbable and
not corroborated by any other piece of
evidence. The accused appellant cannot be
convicted on this kind of contradictory,
shaky and improbable evidence of the
prosecutrix. the prosecution has failed to
prove its case beyond reasonable doubt.
Every part of the testimony of the
prosecutrix
is
infirm,
doubtful
and
contradictory as well as improbable which
does not pose confidence. There is no
corroborative evidence in support of the
testimony
of
the
prosecutrix.
Five
important and available witnesses have
been withheld by the prosecution from the
Court, therefore, it is hard to convict the
appellant on this quality of evidence and it
is a fit case to draw adverse inference
against the prosecution for withholding
five important eye-witnesses from the
Court. (Para 1 to 13)

B. It is true that if a material witness,
which would unfold the genesis of the
incident or an essential part of the
prosecution
case,
not
convincingly
brought to fore otherwise, or where there
is gap or infirmity in the prosecution case
which could have been supplied or made
good by examining a witness which
though available is not examined, the
prosecution
case
can
be
termed
as
suffering
from
a
deficiency
and
withholding of such a material witness
would oblige the Court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been
examined
it
would
not
have
supported the prosecution case. On the
other
hand
if
already
overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
490 INDIAN LAW REPORTS ALLAHABAD SERIES
case the Court ought to scrutinise the
worth of the evidence adduced. The court
of facts must ask itself - whether in the
facts and circumstances of the case, it was
necessary to examine such other witness,
and if so, whether such witness was
available to be examined and yet was
being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise.

The appeal is allowed. (E-5)

List of Cases cited:

## Text

8 All. Nanhey Lal Yadav Vs. The State of U.P.
489

30. The instant appeal is, accordingly,
Allowed.

31. Let a copy of this judgment along
with the lower court record be sent to the
learned trial court concerned by the
Registry.
----------
(2021)08ILR A489
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 1148 of 2001

Nanhey Lal Yadav ...Appellant
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
J.S.Tomar, Ajay Kumar

Counsel for the Opposite Party:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) - Indian
Penal Code, 1860- Sections 376, 506(2) -
challenge
to-conviction-The
medical
evidence contradicts oral evidence as
according to the first information report,
the prosecutrix was 14 years of age
whereas in the medical examination her
age has been found to be 18 years. No
mark of injury has been found on the body
and also on the private part of the
prosecutrix whereas in her testimony
P.W.1 has stated that she had received
scratches over her body and mouth. Thus,
this
part
of
the
evidence
of
the
prosecution is falsified by the medical
report. The prosecutrix has been found to
be used to sexual intercourse. The Doctor
has not given any opinion about rape.
Even the investigating officer has not
corroborated the prosecution story as he
has not found any broken Jwar plants as
stated by the prosecutrix. He has also
contradicted the statement of P.W.2 to the
extent that it is P.W.2 who showed the
place of occurrence to him and then he
prepared the site plan, whereas P.W.2
says that he never returned to the place of
occurrence again. Every part of evidence
of P.W.1 is contradictory, improbable and
not corroborated by any other piece of
evidence. The accused appellant cannot be
convicted on this kind of contradictory,
shaky and improbable evidence of the
prosecutrix. the prosecution has failed to
prove its case beyond reasonable doubt.
Every part of the testimony of the
prosecutrix
is
infirm,
doubtful
and
contradictory as well as improbable which
does not pose confidence. There is no
corroborative evidence in support of the
testimony
of
the
prosecutrix.
Five
important and available witnesses have
been withheld by the prosecution from the
Court, therefore, it is hard to convict the
appellant on this quality of evidence and it
is a fit case to draw adverse inference
against the prosecution for withholding
five important eye-witnesses from the
Court. (Para 1 to 13)

B. It is true that if a material witness,
which would unfold the genesis of the
incident or an essential part of the
prosecution
case,
not
convincingly
brought to fore otherwise, or where there
is gap or infirmity in the prosecution case
which could have been supplied or made
good by examining a witness which
though available is not examined, the
prosecution
case
can
be
termed
as
suffering
from
a
deficiency
and
withholding of such a material witness
would oblige the Court to draw an adverse
inference against the prosecution by
holding that if the witness would have
been
examined
it
would
not
have
supported the prosecution case. On the
other
hand
if
already
overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
490 INDIAN LAW REPORTS ALLAHABAD SERIES
case the Court ought to scrutinise the
worth of the evidence adduced. The court
of facts must ask itself - whether in the
facts and circumstances of the case, it was
necessary to examine such other witness,
and if so, whether such witness was
available to be examined and yet was
being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise.

The appeal is allowed. (E-5)

List of Cases cited:

1. Mohd. Ali @ Quddu Vs St. of U.P. (2015)7
SCC 272

2.
Takhaji
Hiraji
Vs
Thakore
Kubersing
Chamansing & ors. (2001) SC Cri.L.J. 2602

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated 29.11.2001 passed by Additional
Sessions Judge (FTC-IV), Lucknow in
Sessions Trial No.610/2001, Crime No.176
of
2000,
P.S.
Malihabad,
Lucknow
whereby the appellant has been convicted
and sentenced to eight years rigorous
imprisonment and a fine of Rs.2000/-, with
default provision, under section 376 I.P.C..
The appellant has been further convicted
and sentenced to six months rigorous
imprisonment under section 506(2) I.P.C..
Both the sentences were directed to run
concurrently.

2. The prosecution case as per written
report dated 11.7.2000 is that on 10.7.2000
at about 7.00p.m., the daughter of the
informant Basanti aged about 14 years
went to ease herself. All of a sudden,
Nanhey Lal son of Kallu of the same
village came and caught hold of the
daughter of the informant and threatened
that if she raises alarm, he will kill her. By
saying this, Nanhey Lal put knife on the
chest of the prosecutrix and committed rape
on
her.
After
returning
home,
the
prosecutrix told the incident while she was
weeping. Since it was late night, therefore,
the informant did not go to the police
station and as such on the next day, i.e. on
11.7.2000, he went to the police station.
The written report is Ex.Ka-1. Thereafter,
the prosecutrix was medically examined on
the same day, i.e. on 11.7.2000. The
medical examination report is Ex.Ka-2. A
supplementary medical report was also
prepared which is Ex.Ka-3. Chik FIR was
prepared which is Ex.Ka-6. Thereafter, site
plan was prepared by the investigating
officer which is Ex.Ka-4. The investigating
officer after completing the formalities and
taking statements of the prosecution
witnesses
under
section
161
CrPC
submitted charge-sheet which is Ex.Ka-5.
The prosecution to prove its case has
produced
five
witnesses,
viz.
P.W.1
prosecutrix, P.W.2 complainant, P.W.3 Dr.
Sadhna Devi who had medically examined
the prosecutrix and prepared medical report
as well as supplementary report, P.W.4 SI
Phool Dev and P.W.5 HC Vednath Verma.

3. P.W. 1 in her examination-in-chief
has repeated the story, narrated in the
written report. In the cross-examination,
she has stated that in her statement given
before the Magistrate, she has stated her
age to be 18 years. She has further stated
that
her
father
has
applied
for
compensation from the government. She
also stated that her house is at 30 ft.
distance from the house of Nanhey Lal .
The elder son of Nanhey Lal is 16 years,
Pinki is of 14 years, Renu is 11 years of age
and the age of Jitendra is 8 years. In front
of the house of Nanhey Lal , there is a field
of Gaya Prasad where the incident took
8 All. Nanhey Lal Yadav Vs. The State of U.P.
491
place and from where the house of the
appellant is visible. In the field of Gaya
Prasad, crop of Jwar was standing. After
sitting in the crop, nobody could see
anything in the farm. She stated that she is
not aware about inch or feet. She stated that
she did not go again to the place of
occurrence.

A
private
lawyer
was
also
engaged who has submitted report of the
incident in the police station and she also
went with him to the police station. She
stated that at the time of incident, there was
a little sunlight. She stated that in case
somebody raises alarm loudly from the
field of Gaya Prasad, then it may be heard
from her house. She cried loudly at the time
of incident, however, nobody came. Then
she stated that wife of Nanhey Lal came
out but she was standing there. She was
seeing the incident, however, did not come
to her rescue. The children of Nanhey Lal
were playing outside the house. They also
kept watching the accused, raping the
prosecutrix but did not came to her rescue.

She denied the suggestion that on
the date of incident, she had collided with
buffalo of Nanhey Lal and Nanhey Lal
slapped her twice. She further stated that
the brother of Nanhey Lal, Siyaram resides
in the same village which is adjacent to the
house of the appellant and her two maternal
uncles Ganga Ram and Chhutakey have
also their houses. She denied the suggestion
that there was fight between Siya Ram and
her maternal uncles and cross cases were
lodged by both the sides. She further stated
that she reached police station at about 5-6
a.m. on the next day of the incident. Then
she was sent for medical examination at
about 8-9 p.m. During the course of
incident of rape, she was scratched at
several places by finger nails and finger
nail(s) scratches had also come on her
mouth. Prior to the incident, she was never
raped. During the course of rape, her
clothes had become dirty with latrine.
Therefore, she washed them after returning
home. At the place where she was thrown,
20-25 Jwar plants were broken. She was
also injured due to Jwar plants. While
committing rape her both hands were
pressed, therefore, she could not resist/beat
the appellant. On the next day, she had
shown the torn arms of her Kurta to the
investigating officer. Salwar was not torn.
The investigating officer did not take the
clothes. She denied the suggestion that she
has lodged the report just to harass the
appellant and to extract money from the
government.

4. P.W.2 Puttu Lal repeated the same
story in the examination in chief. In the
chief, he has also stated that due to the fact
that knife was pointed on the prosecutrix
she could not cry. In the chief he has stated
that on the second day, he got the written
report written by somebody and then got it
typed at Malihabad. The contents were read
over to him and he signed it. He went to the
police station along with the prosecutrix
where his report was written. Thereafter,
the prosecutrix along with a Peon was sent
to Mahila police station for medical
examination where she was medically
examined and x-ray was conducted. On the
third day, they returned home. Since it was
a matter of girl, therefore, the report was
lodged at Mahila police station. For two
days, he remained at Mahila thana, then, he
said that while returning from Lucknow, he
did not go to Malihabad Thana. Regarding
this incident, he never met again to any of
the police personnel of police station
Malihabad. He admitted the fact that prior
to the incident, there was a fight between
Siyaram and his brothers in law. Both the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
parties were injured and cross cases were
filed.
He
was
also
made
accused.
Thereafter, compromise took place.

He denied the suggestion that the
prosecutrix had brawl with the appellant
relating to the collusion with the appellant's
buffaloes and the appellant slapped the
prosecutrix twice. Prior to the incident, the
appellant supported different candidate in
the election and he supported another
person Virendra neta. He further stated that
he waited for the appellant till 11.00p.m. in
the night that if he apologises then he shall
not lodge the report. He stated that Nanhey
did not care for 10000 rupees. Nanhey did
not apologise therefore, the report was
lodged on the second day. In case he had
apologised, then he would not have lodged
the report. He denied the suggestion that
the report has been lodged due to village
partibandi and enmity with the appellant
and also to extract money from the
government.

5. P.W.3 Dr Sadhna Devi has
medically examined the prosecutrix . In the
external examination, she has not found
any mark of injury on the body or any sign.
In the internal examination also, no injury
has been found on the private part. Hymen
was old torn and healed. She could not give
any opinion about rape. The prosecutrix
was habitual of sexual intercourse. The
radiological age according to X-ray report
of the prosecutrix was stated to be 18 years.

6. P.W. 4 S.I. Phool Dev is the
investigating officer of the case and is a
formal witness. After completing the
investigation, he submitted charge-sheet,
Ex.Ka.5.

7. P.W. 5 Head Constable Vednath
Verma who is also a formal witness has
proved Ex.ka-6 as also Ex.Ka-7 the general
diary of 11.7.2000 of police station
Malihabad. In the statement under section
313 CrPC, the case of the appellant is of
denial. He has stated to have been falsely
implicated due to previous enmity. It is
further stated by him that a buffalo pushed
the prosecutrix on which she started
abusing him and he gave 2-3 slaps to her on
account of which her father Puttilal lodged
a false report against him.

8. Learned counsel for the appellant
submits that the story put forth by the
prosecution is highly improbable and
untrustworthy. The report has been lodged
at Malihabad whereas P.W.1 has stated that
after the incident, she and her lawyer went
to the police station to lodge the report
whereas P.W. 2 has stated that report was
lodged at Mahila thana which is far of,
from Malihabad and in Lucknow district
headquarter. P.W. 2 has stated that he did
not go to Malihabad thana after returning
from Lucknow nor met any police
personnel of police station Malihabad. He
submits that the evidence of P.W.1 and
P.W.2 regarding lodging of the report is
extremely doubtful. It is not clear from the
prosecution case whether the report was
lodged by lawyer as according to the
statement of P.W.2, the appellant was in
Mahila Thana for two days and report was
lodged at Mahila thana. The prosecutrix did
not suffer any injury. The testimony of the
prosecutrix
is
highly
improbable
as
according to her, wife and four children of
the accused saw him committing rape. The
appellant has been falsely implicated just to
extract Rs.10000/- and also due to village
partibandi.

It is lastly submitted that the
medical evidence does not corroborate the
prosecution story. The statement of P.W.1
8 All. Nanhey Lal Yadav Vs. The State of U.P.
493
and P.W.2 regarding lodging of the report
is totally contradictory. Testimony of the
prosecutrix is not worthy of credence and
there is no corroborative material with the
prosecution.

9. Learned A.G.A. while opposing the
argument of the appellant's counsel and
supporting
the
prosecution
case
has
submitted that the testimony of the
prosecutrix is alone sufficient to convict the
appellant. No corroborative material is
needed.

10. Having heard parties' counsel and
after perusal of the record, it appears that
the statement of P.W.1 regarding broken
jwar plants have been contradicted by
P.W.3 investigating officer. The site plan
also does not corroborate this part of the
evidence where no broken Jwar plants have
been shown. The investigating officer has
clearly denied that any broken Jwar plants
were found on the site. P.W. 1 stated that
after the incident, she went along with
lawyer and lodged the report in the police
station whereas P.W. 2 states that he went
along with prosecutrix and there is no
mention of any lawyer. It is then said that
he went to Mahila Thana and the report
was lodged there. For two days, he
remained in Mahila thana along with the
prosecutrix and after returning from Mahila
thana, he never met in police station again.
Hence, this part of the evidence is also
doubtful.

The statement of the prosecutrix
that the incident of rape was witnessed by
the wife and four children of the appellant
is also improbable as according to the
prosecutrix, the incident had taken place in
the field of Gaya Prasad which was in front
of house of Gaya Prasad. She further stated
that while the appellant was committing
rape, wife of the appellant was watching
the appellant. Four children were playing in
the field, however, none of then came to
her rescue. The statement of the prosecutrix
is highly doubtful as the appellant is a
married person having four children out of
whom two are grown up. It is doubtful for
two reasons. No prudent man will commit
the alleged crime in front of his wife and
four children as also no married lady would
allow her husband committing rape of a
lady in front of her four children. Thus, this
part of the evidence of the prosecutrix
appears to be highly improbable and does
not inspire confidence.

The prosecutrix in her statement
has stated that after the incident, she did not
go to the place of occurrence again. P.W. 2
also
stated
the
same
whereas
the
investigating officer in his statement has
said that he prepared the site plan on the
pointing out of P.W.2. Thus, the statement
of P.W.2 as well as the statement of P.W.4
regarding
the
site
plan
are
totally
contradictory and thus are doubtful.

According to the statement of the
prosecutrix, at the place of incident, there is
Panchayat Bhawan and a government water
tank, still no one saw the appellant
committing rape. In addition, as per the site
plan, there is a house of Saktu and Virendra
neta and after that there is a abadi of the
village. Still nobody heard the screams,
although in the statement, P.W.1 has stated
that she cried loudly. Contrary to it, P.W.2
in his statement has stated that P.W.1 did
not raise any alarm. In regard to the brawl
between the appellant and the prosecutrix
on the date of incident regarding the
collusion with his buffalo and also there
was enmity between the brother of the
appellant and brother in laws of P.W.2,
cross cases were lodged by both the parties
494 INDIAN LAW REPORTS ALLAHABAD SERIES
which do not rule out the possibility of
false implication by P.W.2, coupled with
the fact that P.W.2 stated on oath that the
appellant did not care for Rs.10000/-. He
waited for the appellant till 11.00p.m. and
since he did not tender apology, report was
lodged. It appears that P..W.2 was
expecting Rs.10000/- from the appellant
which he did not give. He also did not
apologise for giving slaps to her daughter,
therefore, he may have lodged the report by
falsely implicating the appellant.

The
medical
evidence
also
contradicts oral evidence as according to
the first information report, the prosecutrix
was 14 years of age whereas in the medical
examination her age has been found to be
18 years. No mark of injury has been found
on the body and also on the private part of
the prosecutrix whereas in her testimony
P.W.1 has stated that she had received
scratches over her body and mouth. Thus,
this part of the evidence of the prosecution
is also falsified by the medical report. The
prosecutrix has been found to be used to
sexual intercourse. The Doctor has not
given any opinion about rape Thus, the
medical evidence does not corroborate the
prosecution story. Even the investigating
officer has not corroborated the prosecution
story as he has not found any broken Jwar
plants as stated by the prosecutrix. He has
also contradicted the statement of P.W.2 to
the extent that it is P.W.2 who showed the
place of occurrence to him and then he
prepared the site plan, whereas P.W.2 says
that he never returned to the place of
occurrence again. Every part of evidence of
P.W.1 is contradictory, improbable and not
corroborated by any other piece of
evidence. The accused appellant cannot be
convicted on this kind of contradictory,
shaky and improbable evidence of the
prosecutrix as held by Hon'ble Supreme
Court in Mod. Ali alias Quddu versus
State of U.P. (2015)7 SCC 272. Relevant
paragraph 29 is quoted below :

"29. Be it noted, there can be no
iota of doubt that on the basis of the sole
testimony of the prosecutrix, if it is
unimpeachable and beyond reproach, a
conviction can be based. In the case at
hand, the learned trial Judge as well as the
High Court have persuaded themselves
away
with
this
principle
without
appreciating
the
acceptability
and
reliability of the testimony of the witness. In
fact, it would not be inappropriate to say
that whatever the analysis in the impugned
judgment, it would only indicate an
impropriety of approach. The prosecutrix
has deposed that she was taken from one
place to the other and remained at various
houses for almost two months. The only
explanation given by her is that she was
threatened by the accused persons. It is
not in her testimony that she was confined
to one place. In fact, it has been borne out
from the material on record that she had
travelled from place to place and she was
ravished number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
categorically deposed that there are no
injuries on the private parts. The delay in
FIR, the non- examination of the
witnesses, the testimony of the prosecutrix,
the associated circumstances and the
medical evidence, leave a mark of doubt to
treat the testimony of the prosecutrix as so
natural and truthful to inspire confidence.
It can be stated with certitude that the
evidence of the prosecutrix is not of such
quality which can be placed reliance
upon. " (Emphasised by me)

11. The prosecution case also
becomes doubtful as according to the
8 All. Nanhey Lal Yadav Vs. The State of U.P.
495
prosecutrix, the incident was seen by the
wife of the appellant and his four children.
Since the evidence of P.W.1 is shaky,
infirm, not reliable and not worthy of
credence, therefore, under these facts and
circumstances, it was necessary for the
prosecution to have examined the wife of
the appellant and his four children. It is not
the case of the prosecution that these
witnesses
were
not
available
to
be
examined as they have been withheld from
the court. Therefore, the question of
drawing adverse inference arises against
the prosecution as held by Supreme Court
in 2001 Criminal Law Journal 2602
Takhaji
Hiraji
versus
Thakore
Kubersing
Chamansing
and
others.
Relevant paragraph 19 is reproduced as
under :

"19. So is the case with the
criticism levelled by the High Court on the
prosecution case finding fault therewith for
non-examination of independent witnesses.
It is true that if a material witness, which
would unfold the genesis of the incident or
an essential part of the prosecution case,
not
convincingly
brought
to
fore
otherwise, or where there is gap or
infirmity in the prosecution case which
could have been supplied or made good by
examining
a
witness
which
though
available is not examined, the prosecution
case can be termed as suffering from a
deficiency and withholding of such a
material witness would oblige the Court to
draw an adverse inference against the
prosecution by holding that if the witness
would have been examined it would not
have supported the prosecution case. On
the other hand if already overwhelming
evidence is available and examination of
other witnesses would only be a repetition
or duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such a
case the Court ought to scrutinise the
worth of the evidence adduced. The court
of facts must ask itself - whether in the
facts and circumstances of the case, it was
necessary to examine such other witness,
and if so, whether such witness was
available to be examined and yet was
being withheld from the court. If the
answer be positive then only a question of
drawing an adverse inference may arise.
If the witnesses already examined are
reliable and the testimony coning from
their mouth is unimpeachable the Court
can safely act upon it uninfluenced by the
factum of non-examination of other
witnesses. In the present case we find that
there are at least 5 witnesses whose
presence at the place of the incident and
whose having seen the incident cannot be
doubted at all. It is not even suggested by
the defence that they were not present at
the place of the incident and did not
participate therein. The injuries sustained
by these witnesses are not just minor and
certainly not self-inflicted. None of the
witnesses had a previous enmity with any of
the
accused
persons
and
there
is
apparently no reason why they would tell a
lie. The genesis of the incident is brought
out by these witnesses. In fact, the presence
of the prosecution party and the accused
persons in the chowk of the village is not
disputed. How the vanity of Thakores was
hurt leading into a heated verbal exchange
is also not in dispute. Then followed the
assault. If the place of the incident was the
chowk then it was a sudden and not premeditated fight between the two parties. If
the accused persons had reached their
houses and the members of the prosecution
party had followed them and opened the
assault near the house of the accused
persons then it could probably be held to
be a case of self-defence of the accused
496 INDIAN LAW REPORTS ALLAHABAD SERIES
persons in which case non-explanation of
the injuries sustained by the accused
persons would have assumed significance.
The learned Sessions Judge has on
appreciation of oral and the circumstantial
evidence inferred that the place of the
incident was the chowk and not a place
near the houses of the accused persons.
Nothing more could have been revealed by
other village people or the party of tight
rope dance performers. The evidence
available on record shows and that
appears to be very natural, that as soon as
the melee ensued all the village people and
tight-rope dance performers took to their
heels. They could not have seen the entire
incident. The learned Sessions Judge has
minutely scrutinised the statements of all
the
eye-witnesses
and
found
them
consistent and reliable. The High Court
made
no
effort
at
scrutinising
and
analysing the ocular findings arrived at by
the Sessions Court. With the assistance of
the learned counsel for the parties we have
gone through the evidence adduced and on
our independent appreciation we find the
eye-witnesses consistent and reliable in
their narration of the incident. In our
opinion non-examination of other witnesses
does not cast any infirmity in the
prosecution case. " (Emphasised by me)

12. Thus, in view of the aforesaid
discussion, the prosecution has failed to
prove its case beyond reasonable doubt.
Every part of the testimony of the
prosecutrix
is
infirm,
doubtful
and
contradictory as well as improbable which
does not pose confidence. There is no
corroborative evidence in support of the
testimony
of
the
prosecutrix.
Five
important and available witnesses have
been withheld by the prosecution from the
Court, therefore, it is hard to convict the
appellant on this quality of evidence and it
is a fit case to draw adverse inference
against the prosecution for withholding five
important eye-witnesses from the Court.

13. In view of what has been stated
hereinabove, the criminal appeal is allowed
and the judgment and order of conviction
and sentence dated 29.11.2001, passed by
Additional
Sessions
Judge
(FTC-IV),
Lucknow in Sessions Trial No.610/2001,
Crime No.176 of 2000, P.S. Malihabad,
Lucknow is set aside. The appellant is
acquitted of the charges levelled against
him.

This Court by its order dated
13.12.2001 had admitted the appellant to
bail. He be discharged of his bail bonds.

14. Let a copy of this judgment be
transmitted to the learned trial Court as
well as Superintendent, Jail concerned, for
compliance. The lower court records be
also sent back to the lower court.
----------

(2021)08ILR A496
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE NAVEEN SRIVASTAVA, J.

Criminal Appeal No 1414 of 2012

Mohd. Moin @ Lala & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Hari Bans Singh, Sri Deepak Kumar
Srivastava, Deepak Singh, Sri Ganesh
Shanker Srivastava