# Nankau & Anr v. State of U.P

- **Citation:** (2023) 10 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-10
- **Case number:** Criminal Appeal No. 1067 of 2010
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nankau-anr-v-state-of-u-p-49249
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860
-
Sections
323,
504
&
506(2)
-
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)(x) - Criminal Procedure
Code,
1973
-
Section
374(2)
-
Interested Witnesses - Presumption of
Innocence - Burden of Proof - Acquittal
- The appellants, Nankau and another,
challenged the conviction and sentencing
dated 26.03.2010 by the Additional Sessions
Judge, Lucknow, in Sessions Trial No. 1216 of
1999 for offenses under Sections 323, 504,
506(2) IPC and Section 3(1)(x) of the SC/ST
Act, arising from Case Crime No. 77/1998,
Police Station Thakurganj, Lucknow.

Held: (1) The appeal was allowed, and the
convictions and sentences were set aside,
acquitting the appellants. (2) The prosecution
failed to prove the guilt of the appellants
beyond reasonable doubt, as the testimonies
of PW-1 (Ram Dulare, complainant), PW-2
(Shyam Lal), and PW-3 (Mohd. Hashim), all
interested witnesses due to their proximity to
the complainant, were deemed unreliable and
tutored. (3) The trial court erred in relying on
these witnesses without adequately separating
credible evidence from unreliable portions,
ignoring the principle of falsus in uno falsus in
omnibus not applying in India, as per Sucha
Singh Vs St. of Punj.. (4) The witnesses'
interested nature, coupled with admitted enmity
between the parties over a prior court case,
raised doubts about their credibility, and no
independent
witnesses
were
examined
to
corroborate the prosecution story. (5) The
medical evidence by PW-6 (Dr. M.N. Siddiqui)
indicated simple, fresh injuries caused by
scratches, but no proper explanation of these
injuries was provided, further weakening the
prosecution case. (6) The trial court's findings
were based on conjectures, overlooking material
10 All. Nankau & Anr. Vs. State of U.P.
101
evidence and failing to consider the holistic
St.ments of witnesses, rendering the judgment
perverse, as per Masalti Vs St. of Uttar Pradesh
and S. Sudershan Reddy Vs St. of A.P.. (7) The
court emphasized the prosecution's burden to
prove guilt beyond reasonable doubt and the
duty to carefully scrutinize interested witness
testimonies, finding the evidence insufficient to
sustain the convictions. (8) The appellants'
personal and surety bonds were canceled, and
sureties were discharged.

Case Law Cited:

## Text

100 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence on the question of juvenility as
claimed by the applicant/ appellant no.6 but
not for determining the said juvenility
which will have to be done by this Court
under Section 9(2) of the Juvenile Justice
Act, 2015 after the evidence has been taken
by the Board and sent to this Court.

15. We, accordingly, direct the
Juvenile Justice Board, Sultanpur to
undertake the aforesaid exercise as per law
by conducting an inquiry in the form of
taking evidence and submit it to this Court
by the next date.

16. For the aforesaid purpose, the
application of appellant/ applicant no.6
shall be treated as one submitted under
Section 9 of the Juvenile Justice Act,
2015.

17. The matter shall now come up
for hearing on 28.11.2023.

18. A copy of this application shall
be transmitted to the Juvenile Justice
Board, Sultanpur along with the details of
the informant and the accused.

19. Senior Registrar of this Court to
do the needful in this regard.
----------
(2023) 10 ILRA 100
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1067 of 2010

Nankau & Anr. ...Appellants
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Pradeep Kumar Singh, Anshubhan Singh,
Manish Bajpai

Counsel for the Respondent:
Govt. Advocate, Anil Pratap Singh, Sunil
Kumar Singh

Criminal Law - Indian Penal Code, 1860
-
Sections
323,
504
&
506(2)
-
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(1)(x) - Criminal Procedure
Code,
1973
-
Section
374(2)
-
Interested Witnesses - Presumption of
Innocence - Burden of Proof - Acquittal
- The appellants, Nankau and another,
challenged the conviction and sentencing
dated 26.03.2010 by the Additional Sessions
Judge, Lucknow, in Sessions Trial No. 1216 of
1999 for offenses under Sections 323, 504,
506(2) IPC and Section 3(1)(x) of the SC/ST
Act, arising from Case Crime No. 77/1998,
Police Station Thakurganj, Lucknow.

Held: (1) The appeal was allowed, and the
convictions and sentences were set aside,
acquitting the appellants. (2) The prosecution
failed to prove the guilt of the appellants
beyond reasonable doubt, as the testimonies
of PW-1 (Ram Dulare, complainant), PW-2
(Shyam Lal), and PW-3 (Mohd. Hashim), all
interested witnesses due to their proximity to
the complainant, were deemed unreliable and
tutored. (3) The trial court erred in relying on
these witnesses without adequately separating
credible evidence from unreliable portions,
ignoring the principle of falsus in uno falsus in
omnibus not applying in India, as per Sucha
Singh Vs St. of Punj.. (4) The witnesses'
interested nature, coupled with admitted enmity
between the parties over a prior court case,
raised doubts about their credibility, and no
independent
witnesses
were
examined
to
corroborate the prosecution story. (5) The
medical evidence by PW-6 (Dr. M.N. Siddiqui)
indicated simple, fresh injuries caused by
scratches, but no proper explanation of these
injuries was provided, further weakening the
prosecution case. (6) The trial court's findings
were based on conjectures, overlooking material
10 All. Nankau & Anr. Vs. State of U.P.
101
evidence and failing to consider the holistic
St.ments of witnesses, rendering the judgment
perverse, as per Masalti Vs St. of Uttar Pradesh
and S. Sudershan Reddy Vs St. of A.P.. (7) The
court emphasized the prosecution's burden to
prove guilt beyond reasonable doubt and the
duty to carefully scrutinize interested witness
testimonies, finding the evidence insufficient to
sustain the convictions. (8) The appellants'
personal and surety bonds were canceled, and
sureties were discharged.

Case Law Cited:

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

2. Masalti Vs St. of U.P., AIR 1965 SC 202;

3. S. Sudershan Reddy Vs St. of A.P., (2006) 10
SCC 163.

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

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

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

3. The instant Criminal Appeal under
Section 374(2) Cr.P.C. has been moved on
behalf of the appellants against the order
dated
26.03.2010
passed
by
learned
Additional Sessions Judge / Fast Track
Court, Room No.VI, Lucknow in Sessions
Trial No.1216 of 1999, Crime No.77/1998,
Police
Station
Thakurganj,
District
Lucknow (State Vs. Nankau & Another),
convicting and sentencing the appellants
for rigorous imprisonment of six months
under Section 323 I.P.C., one year
rigorous imprisonment under Section 504
I.P.C., two years rigorous imprisonment
under Section 506(2) I.P.C. and two years
rigorous imprisonment alongwith fine of
Rs.500/- (in default three months rigorous
imprisonment) under Section 3(1)(X)
S.C./S.T. Act.

4. The prosecution case in brief is
that on 06.03.1998, the complainant Ram
Dulare submitted a written report in
Police
Station
Thakurganj,
District
Lucknow, wherein it had been stated that
on the date of incident at about 08:00
A.M., when the complainant was standing
at his door, the accused appellants came
to his door. The complainant asked them
why they had lodged a case in Court as
he was not having any dispute. On
hearing this, the accused persons started
abusing him in filthy languages and when
the complainant forbade them not to
abuse, the accused persons had beaten the
complainant with lathi and danda. On
being beaten, the complainant shouted
and made hue and cries. On listing the
hue and cries made by the complainant,
the neighbors, Shyam Lal, Chunna and
Hashim arrived at the spot of incident,
who tried to save the complainant but the
accused persons had beaten them also.
Thereafter, when other persons started to
rescue them, the accused fled away by
giving threats that they will kill the
complainant.

5. On the basis of written report,
submitted by the first informant, the first
information report was lodged as Case
Crime No.77 of 1998, under Sections
323, 504 and 506 I.P.C. and Section
3(1)(X) of S.C./S.T. Act at Police Station
Thakurganj, District Lucknow.

6. The case was handed over to
Investigating Officer, who visited the
place
of
occurrence,
recorded
the
statement of the witnesses and prepared
the site plan and after completing the
investigation, submitted the charge sheet
102 INDIAN LAW REPORTS ALLAHABAD SERIES
against the appellants under Sections 323,
504 and 506 I.P.C. and Section 3(1)(X) of
S.C./S.T. Act.

7. On the basis of Charge-sheet
appellant-accused were summoned by the
Court and charges were framed against
them under Sections 323, 504 and 506
I.P.C. and Section 3(1)(X) of S.C./S.T. Act.
The appellants-accused denied the charges
and claimed to be tried.

8. Prosecution in order to substantiate
the charges against appellants-accused
examined Ram Dulare, the complainant as
P.W.-1, Shyam Lal, the injured and eye
witness as P.W.-2, Hashim, the injured and
eye witness as P.W.-3, Constable Munni
Lal, scribe of written report as P.W.-4, I.O.
Virendra Pratap Singh as P.W.-5 and Dr.
M.N. Siddiqui, who examined the injured
persons as P.W.-6.

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

10. No witness in defence was
adduced by the accused persons before the
trial court.

11. After having heard the rival
submissions of parties, the Trial Court
found appellants-accused guilty, therefore,
convicted and sentenced them for rigorous
imprisonment of six months under Section
323 I.P.C., one year rigorous imprisonment
under Section 504 I.P.C., two years
rigorous
imprisonment
under
Section
506(2) I.P.C. and two years rigorous
imprisonment alongwith fine of Rs.500/-
(in
default
three
months
rigorous
imprisonment)
under
Section
3(1)(X)
S.C./S.T. Act.

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

13.

Learned
Counsel
for
the
appellants has contended that the judgment
and order passed by the Trial Court is
wrong both on facts and law. The learned
trial court had misread and misconstrued
the statements of prosecution witnesses.
The findings of the learned court below is
based
on
conjectures
and
surmises.
Benefits of latches of prosecution is
accorded to the prosecution by the learned
court below.

14. Learned counsel for the appellants
has further contended that the learned court
below has not considered the explanations
of circumstances submitted on behalf of the
defence while passing the impugned
judgment and order of conviction. The
learned trial court has not considered the
fact that all the witnesses are interested and
tutored and even the prosecution has failed
to prove its case beyond al reasonable
doubts. 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.

15. Opposing the contention of
learned Counsel for the appellant-accused,
the learned A.G.A. has contended that
sufficient evidence was given by the
prosecution to prove the factum of
assaulting the injured by the accused
persons. The F.I.R. was also immediately
10 All. Nankau & Anr. Vs. State of U.P.
103
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.

16. 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.

17. In the present case, almost all the
prosecution witnesses have supported the
prosecution story. It is based on testimony
of
interested
or
tutored
prosecution
witnesses from which guilt of accused may
be inferred.

18. 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.

19. 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."

20. Perusal of the statement of eye
witness P.W.-1 Ram Dulare, who is the
complainant, shows that he has reiterated
the version of F.I.R. and stated that on date
of incident at about 08:00 A.M., when he
was standing at his door, the accused
appellants came to his door. He asked them
whey they had lodged a case in Court as he
was not having any dispute. On hearing
this, the accused persons started abusing
104 INDIAN LAW REPORTS ALLAHABAD SERIES
him in filthy languages and when he
forbade them not to abuse, the accused
persons had beaten him with lathi and
danda. On being beaten, he shouted and
made hue and cries. On listing the hue and
cries made by him, the neighbors, Shyam
Lal, Chunna and Hashim arrived at the spot
of incident, who tried to save him but the
accused persons had beaten them also.
Thereafter, when other persons started to
rescue them, the accused fled away by
giving threats that they will kill the
complainant.

21. Similarly P.W.-2 Shyam Lal, an
eye witness also reiterated the same as
P.W.-1 Ram Dulare. He also stated that on
hearing hue and cries made by the Ram
Dulare, he reached on the spot of incident,
where he saw that the accused persons were
beating him with lathi and danda and were
also abusing him in filthy languages. He
also stated that when he tried to rescue the
Ram Dularey, the accused persons had also
beaten him.

22. Further P.W.-3 Mohd. Hashim,
who is also an eye witness and has stated in
his testimony that on hearing hue and cries
made by the Ram Dulare, he reached on the
spot of incident and saw that the accused
persons were beating him with lathi and
danda and were also abusing him in filthy
languages. He also stated that when the
Shyam Lal tried to rescue the Ram
Dularey, the accused persons had also
beaten him.

23. PW-4 Constable Munni Lal had
stated in his testimony before the learned
trial court that he has scribed the written
report into first information report.

24.

P.W.-5
Virendra
Pratap
Srivastava, the Investigating Officer of
the case has proved the site plan as Ex.
Ka-4 and Charge Sheet as Ex. Ka-5.

25. P.W.-6 Dr. Dr. M. N. Siddiqui
had stated in his examination-in-chief
that he had examined the injured Ram
Dularey on 06.03.1998 at about 11:10
A.M. He also stated that he examined
injured Shyam Lal and Hashim. He had
also prepared medical report of the
injured Ram Dularey, Shyam Lal and
Hashim. He further stated that all the
injuries were simple and fresh which may
be caused by scratches.

26. It is true that no independent
witnesses
were
examined
by
the
prosecution. P.W.-2 Shyam Lal and P.W.-
3 Hashim are interested and tutored
witness as they live in close proximity of
the
complainant.
Appreciating
the
testimony of interested or partitioned
witness, in Masalti and Ors. v. The
State of Uttar Pradesh, AIR 1965 SC
202, Hon'ble Court was pleased to
observe as under:-

"There is no doubt that when a
criminal
Court
has
to
appreciate
evidence given by witnesses who are
partisan or interested, it has to be very
careful in weighing
such
evidence.
Whether or not there are discrepancies in
the evidence; whether or not evidence
strikes the Court as genuine; whether or
not the story disclosed by the evidence is
probable, are all matters which must be
taken into account. But it would, we
think, be unreasonable to contend that
evidence given by witnesses should be
discarded only on the ground that it is
evidence
of
partisan
or
interested
witnesses. Often enough, where factions
prevail in villages and murders are
committed as a result of enmity between
10 All. Nankau & Anr. Vs. State of U.P.
105
such factions, criminal Courts have to deal
with evidence of a partisan type. The
mechanical rejection of such evidence on
the sole ground that it is a partisan would
invariably lead to failure of justice. No
hard and fast rule can be laid down as to
how much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
that such evidence should be rejected
because it is partisan cannot be accepted
as correct."

27. Discussing reliability of testimony
of a interested witness Hon'ble Apex Court
in S. Sudershan Reddy & Ors. v. State of
A. P. (2006) 10 SCC 163 was pleased to
observe as under:-

" relationship is not a factor to
affect the credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse the evidence to find out whether it
is cogent and credible."

28. The testimony of a witness cannot
be
rejected
only
on
the
basis
of
interestedness. Moreover, it is also against
human nature that related witness will
spare real culprit and implicate innocent
person. If evidence of an interested or
related witness is in consonance with
probabilities and consistent, his evidence is
credible evidence and can be relied upon.

29. Thus testimony of a witness
cannot be discarded on the ground of
nterestedness or their evidence has to be
examined carefully and consciously. It is
duty of Court to separate grain from chaff.

30. In order to find out truth, most of
the Courts do not ask questions to the
witnesses to shift the grain from the chaff.
Practice of leaving witnesses to the
Advocates, when a witness is tutored or
interested, 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.

31. No proper explanation of injuries
on the person of injured witnesses have
been given. Mere suggestion is not
sufficient. Moreover it itself indicates a
false case. All the witnesses being the
neighbors, interested and tutored, it is
beyond apprehension that they instead of
naming out real culprit, they would falsely
implicate the accused persons knowing
them innocent. Enmity with regard to
another case has also been admitted
between the parties.

32. This Court has gone through the
impugned judgment and evidence on
record. The trial court relying on the
testimony of witnesses, even though who
are interested and tutored, has concluded
that the accused had assaulted the injured
persons. Looking into the totality of
statement of witnesses, the conclusion
drawn by the trial court cannot be said to be
reasonable.

33. It is established principle of
law of evidence that statement of witness is
to be read as a whole and conclusion
106 INDIAN LAW REPORTS ALLAHABAD SERIES
should not be drawn only by picking up a
single sentence of the statement of a
witness. Thus the trial court has overlooked
the material evidence available on record
with regard to guilt of accused and to that
extent conclusion drawn by the trial Court
suffers with patent infirmity and perversity
and therefore, liable to be reversed and set
aside.

34. 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 26.03.2010
passed by learned Additional Sessions
Judge / Fast Track Court, Room No.VI,
Lucknow in Sessions Trial No.1216 of
1999, Crime No.77/1998, Police Station
Thakurganj, District Lucknow (State Vs.
Nankau & Another) is set aside and
reversed.
The
appellants,
namely,
appellant no.1 Nankau and appellant no.2
are acquitted of charges under Sections
323, 504, 506(2) I.P.C. and Section
3(1)(X) of S.C./S.T. Act. Their personal
bonds and surety bonds are canceled and
sureties are discharged.

35. Let record of lower Court be sent
back to Court concerned along with copy
of judgment and order for information.
----------
(2023) 10 ILRA 106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1267 of 2020
Israr Khan ..Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Manoj Kumar Singh, Brij Mohan Sahai

Counsel for the Respondents:
G.A., Ashish Raman Mishra, Sandeep
Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 364, 201 & 34 - Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - Section 3(2)(v)
-
Criminal
Procedure Code,
1973
-
Sections 14-A(2), 374(2), 437(3), 82, 174A, 229-A & 309 - Bail Application -
Circumstantial
Evidence
-
False
Implication - Prolonged Detention - The
appellant, Israr Khan, challenged the order
dated 10.12.2020 by the Special Judge (SC/ST
Act)/Additional
Sessions
Judge,
Bahraich,
rejecting his bail application in Case Crime No.
170 of 2020 under Sections 364, 302, 201, 34
IPC and Section 3(2)(v) of the SC/ST Act, Police
Station Matera, Bahraich.

Held: (1) The appeal was allowed, the
impugned order was set aside, and the
appellant was granted bail with conditions. (2)
The FIR was initially lodged against unknown
persons for the kidnapping of the complainant's
12-year-old son, Ved Prakash Chaudhary, on
29.10.2020, and the boy's body was later found
with injuries, including a lacerated wound,
incised wound, crush injuries, and contusions,
with the postmortem confirming death by
asphyxia due to ante-mortem injuries. (3) The
appellant's implication was based on the
confessional St.ment of co-accused Kaleem and
St.ments of interested witnesses (Mata Prasad
and Pradeep, relatives of the deceased), who
only saw the appellant with the deceased but
did not confirm his presence or involvement in
the murder. (4) No independent witness
confirmed the appellant's role in the murder,
and no incriminating articles were recovered
from him; the recovered danda was not
specifically linked to the appellant, and the cycle
recovery violated Section 100 Cr.P.C. and lacked