# Nokhe Lal (In Jail) v. State of U.P & Ors

- **Citation:** (2022) 5 ILRA 1242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-15
- **Case number:** Criminal Appeal No.4858 of 2014
- **Bench:** Vivek Kumar Birla, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nokhe-lal-in-jail-v-state-of-u-p-ors-48470
- **Pages:** 7

## Headnote

Law
-
Criminal
Procedure
Code,1973 - Section - 372, - Indian Penal
Code,1860
-Sections 307/34, 323/24,
387, 427, 452, 504, 506 - Arms Act, 1959
- Section - 25 - Criminal Appeal - challenging
the order of acquittal - by the trial court giving
them benefit of doubt - on the ground that - all
the evidence are not proved the story of
prosecution & holding that all witnesses are
interested witnesses - court held that - in the
light of settle law by the Apex Court - Trial
Court can only concerned with quality not with
the quantity of evidence - the testimony of
interested witness has to be examined with
extra care and caution - finding of trial court
cannot at all be termed as perverse - appellant
fails to make out any ground - hence Appeal
dismissed. (Para - 17, 19, 21, 23, 24)

Appeal Dismissed. (E-11)

List of Cases cited:-

## Text

1242 INDIAN LAW REPORTS ALLAHABAD SERIES
(2012) 6 SCC 403 : (2012) 3 SCC (Cri)
146] had stipulated the principles that are
required to be kept in mind while relying
on extra-judicial confession as evidence.
These principles have been succinctly
mentioned in Jagroop Singh v. State of
Punjab [Jagroop Singh v. State of Punjab,
(2012) 11 SCC 768 : (2013) 1 SCC (Cri)
1136] as : (SCC p. 780, para 30)

"30.
Recently,
in Sahadevan v. State
of
T.N. [Sahadevan v. State of T.N., (2012) 6
SCC 403 : (2012) 3 SCC (Cri) 146] , after
referring to the rulings in Sk. Yusuf v. State
of W.B. [Sk. Yusuf v. State of W.B.,
(2011) 11 SCC 754 : (2011) 3 SCC (Cri)
620]
and Pancho v. State
of
Haryana [Pancho v. State
of
Haryana,
(2011) 10 SCC 165 : (2012) 1 SCC (Cri)
223] , a two-Judge Bench has laid down
that the extra-judicial confession is a weak
evidence by itself and it has to be examined
by the court with greater care and caution;
that it should be made voluntarily and
should be truthful; that it should inspire
confidence;
that
an
extra-judicial
confession attains greater credibility and
evidentiary value if it is supported by a
chain of cogent circumstances and is
further corroborated by other prosecution
evidence;
that
for
an
extra-judicial
confession to be the basis of conviction, it
should not suffer from any material
discrepancies and inherent improbabilities;
and that such statement essentially has to
be proved like any other fact and in
accordance with law."

21. PW 9 Investigating Officer Dhan
Pal Singh has stated that till 16-05-2010,
the name of any accused persons had not
come to light. The name of the accused
persons has been included after about an
year after the incident on the basis of an
alleged extrajudicial confession made by all
the accused persons by going to PW-2 on
25-04-2011 and confessing the incident
allegedly occurred on 26-12-2009, which is
highly unnatural and which was not
corroborated
by
any
other
evidence.
Therefore, we are of the view that the said
extra judicial confession does not appear to
be reliable so as to prove the guilt of the
accused / respondents beyond reasonable
doubt.

22. From a thorough scrutiny of the
statement of witnesses, we are of the
considered opinion that the prosecution
could not establish the guilt of the accused
respondent number 2 to 5 and the findings
of the Court below in this regard do not
suffer from any infirmity and the same are
not at all perverse and do not call for
interference of this Court in exercie of its
appellate jurisdiction.

23. The appeal lacks merits and is
accordingly dismissed at the stage of
admission itself.
----------
(2022)05ILR A1242
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.03.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No.4858 of 2014
(Under section 372 Cr.P.C.)

Nokhe Lal ...Appellant (In Jail)
Versus
State of U.P & Ors. ...Respondents

Counsel for the Appellant:
Sri V.K. Gupta, Sri Santosh Kumar Tiwari

Counsel for the Respondents:
5 All. Nokhe Lal Vs. State of U.P. & Ors.
1243
A.G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Section - 372, - Indian Penal
Code,1860
-Sections 307/34, 323/24,
387, 427, 452, 504, 506 - Arms Act, 1959
- Section - 25 - Criminal Appeal - challenging
the order of acquittal - by the trial court giving
them benefit of doubt - on the ground that - all
the evidence are not proved the story of
prosecution & holding that all witnesses are
interested witnesses - court held that - in the
light of settle law by the Apex Court - Trial
Court can only concerned with quality not with
the quantity of evidence - the testimony of
interested witness has to be examined with
extra care and caution - finding of trial court
cannot at all be termed as perverse - appellant
fails to make out any ground - hence Appeal
dismissed. (Para - 17, 19, 21, 23, 24)

Appeal Dismissed. (E-11)

List of Cases cited:-

1. Sunil Kumar Vs St. (Govt. of NCT Delhi) 2003
11 SCC 367,

2. Vadivelu Thevar Vs St. of Madras (AIR 1957
SC 614),

3. Amar Singh Vs Balwinder Singh (2003, SCC
518),

4. Jayamma Vs St. of Karn. (2021 vol. 6 SCC
213).

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Santosh Kumar Tiwari,
learned Amicus Curiae, for the appellant
and Shri Ratan Singh, learned A.G.A. for
the respondents.

2. By means of the instant appeal
under Section 372 of
the
Criminal
Procedure Code (herein after referred to as
"Cr.P.C.") the informant-appellant has
challenged the judgement and order dated
01.10.2014 passed by learned Additional
Sessions Judge, Court No. 1/Special Judge,
Dacoity Affected Area, Mahoba in Special
Case No. 47 of 2004 (State Vs. Hari Ram
Prajapati and another) arising out of Case
Crime No. 196 of 2004 under Sections 387,
307/34, 452, 323/34 and 427 IPC, Police
Station Kabrai, District Mahoba, whereby
both the accused have been acquitted
giving them the benefit of doubt.

3. Briefly stated, facts of the case are
that the informant-appellant gave a report
in the concerned Police Station on
11.05.2004 at 20:45 hours stating that when
on the same day at about 4:00 p.m., he was
coming to Kabrai from his home, the
accused-respondent
No.
3
(Dhirendra
Singh) blocked the passage by parking his
motorcycle in front of Jagdish's house,
where the passage is narrow. The informant
was going on his motorcycle and he
stopped there. Dhanni, Rajju, Hariram
Prajapati (the accused-respondent No. 2
and
Dhirendra
Singh
(the
accusedrespondent No. 3) caught hold of the
informant and made him sit there and they
assaulted the informant by but of a gun,
kicks and fists and said that they will set
him free only when he pays Rs. 10,000/-.
They threatened to kill him with a gun and
country made pistols. Upon finding an
opportunity, the informant ran towards his
home and Dhanni fired towards the
informant with a 315 bore country made
pistol with the intention to kill him.
However, the shot missed the informant's
temple and he had a narrow escape. The
informant ran and entered the house of
Prakash and the aforesaid people attempted
to get the door of the house opened.
Thereafter, they entered the informant's
house and assaulted the informant's mother
Achchhi Devi and sister Sudha with kicks,
fists and shoes and destroyed the household goods namely deg (a utensil), CD, TV,
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
Battery and other goods of his shop, which
resulted in a loss of about Rs. 5,000/-. The
accused threatened that if the informant
makes a report of it, it will not be good for
him. The incident was witnessed by
Shaukilal,
Bhawanideen
and
Deshraj
Pradhan and they saved him.

4. On the aforesaid allegation, a Case
Crime No. 196 of 2004 under Sections 387,
452, 323, 504 and 506 IPC was registered
against the accused-respondents. A case
under Section 10/12 of Dacoity Affected
Area Act was registered against Dhanni.
After investigation, a charge sheet for
commission of the offences under Sections
387, 307/37, 452, 323/34, 427 IPC was
submitted in the Court against the accusedrespondents.

5. PW-1, informant-appellant Nokhe
Lal, reiterated the allegations made in the
FIR and he further stated that the Sub
Inspector visited his home on the following
day and saw the broken goods. He prepared
a list and gave the goods in the custody of
his father. He produced the broken goods,
namely, a stabilizer, a CD player and a
table fan, a tin box, picture tube of a TV
etc. before the Court and said that those
were the goods which had been broken by
the accused-persons. He and his mother has
been
medically
examined
in
the
Government Hospital at Mahoba.

6. In his cross-examination, PW-1
stated that he had stopped his motorcycle
about 3 meters before the platform where
the accused persons made him sit. The
accused-persons had hit him with sticks,
buts and kicks. They had hit him 10-15
times with sticks and 10-12 times with
buts. They had hit him on his back and
below the shoulder but not on his head and
face. However, the assault did not cause
any injury mark or bleeding. They did not
hit him hard but hit him slowly. He reached
the house of Prakash Vishwakarma at about
4:15 p.m. During the entire period, he kept
on shouting but nobody came there. The
witnesses Shauki Lal and Bhawani Deen
came after the incident. The place of
incident is surrounded by residential area.
After about 1/2 to 1 minute since arrival of
the witnesses, the informant got free from
the accused persons and ran away.

7. PW-2 Smt. Achchhi Devi is mother
of the informant Nokhe Lal, she stated that
on the date of the incident at about 4:00
p.m., the accused-persons entered her
house, assaulted and injured her and broken
the goods kept in the shop. In her crossexamination, PW-2 stated that the house of
Saukhi Lal Prajapati and Kamtu Dhobi are
adjacent to her house and there are several
residences near her house. The distance
between
her
house
and
Prakash
Vishwakarma's house is the same distance
as the distance between the court room and
the road and the Court made a noting that
the distance between the Court and the road
is about 200-250 yards.

8. PW-4 Smt. Sudha is the informant's
sister, she stated that the accused-persons
came to the shop, they hit her mother
Achchhi Devi with buts of a country made
pistol. They slapped her and broken down
the T.V., Fan, C.D. and other goods of the
shop. Afterwards, she came to know that
they have fired at her brother. The accusedpersons took away the jewellery of her and
of her sister-in-law.

9. PW-5 Prakash Vishwakarma has
denied the incident having been taken
place. He said that he has no knowledge of
the incident and he did not either see or
hear about it. He was declared to be hostile
5 All. Nokhe Lal Vs. State of U.P. & Ors.
1245
and in his cross-examination he denied
having made any statement under Section
161 Cr.P.C.

10. PW-3 Dr. Mahendra Singh
Katiyar
has
conducted
the
medical
examination of Smt. Achhchhi Devi who
has proved that the appellant Nokhe Lal
was not found to have been suffered any
injury. His mother Smt. Achchi Devi wife
of Nanhu had reported that there was some
swelling and bluishness on her hip.

11. The defence has produced two
witnesses who have denied the incident and
have made statements regarding animosity
between the informant and the accused.

12. The learned Court below has rightly
noted that PW-1, 2 and 4 are informant, his
mother and sister respectively which belong
to the same family and are interested
witnesses and, therefore, their evidence is to
be scrutinized very carefully. The informantappellant has alleged in the report (Ex.A-1)
that the accused-respondents threatened him
against lodging a report but in his evidence
PW-1 has stated that he went alone
immediately afterwards to lodge the report.
The conduct of PW-1 in going alone to lodge
FIR
immediately
after
having
been
threatened by the accused persons appears to
be unnatural. PW-1 has alleged that the
accused persons had hit him with but of a
gun, stick and kicks but the same did not
leave marks or cause bleeding. The accused
had not hit him hard but had hit him slowly.
PW-3 who conducted medical examination
of PW-1 did not found any injury on the
person
of
PW-1,
which
makes
the
prosecution case as well as veracity of the
evidence of PW-1 and PW-2 doubtful.

13. PW-1 has stated that the medical
examination
of
his
sister
was
also
conducted on the same day whereas the
sister PW-4 Smt. Sudha has stated that she
was not medically examined. No report of
PW-4 is available on record and no
statement in this regard has been made by
PW-3. From this prosecution witnesses
appear not to be trustworthy.

14. PW-1 has stated that he had gone
to the Police Station alone, however PW-2
stated that her daughter had also gone to
the Police Station with her. GD (Ex.A-5)
mentions that the informant (PW-1) came
with (Smt. Achchhi Devi-PW-2). Thus the
version of PW-1, PW-2 and the narration in
the GD, all contradict each other which
indicates entries in the GD have been
concocted.

15. PW-1 has alleged that Dhanni (coaccused) fired with a 315 bore country
made pistol. Neither there is any witness of
this incident nor was any empty cartridge
recovered from the spot which could prove
the informant's averment. The statement of
PW-4 (informant's sister) that the accused
persons hit her mother Smt. Achchhi Devi
with but of country made pistol and thrown
away the goods of the shop and take away
the jewellery and other articles of marriage
of PW-4 and her sister-in-law is not
corroborated by the statements of PW-1
and PW-2 and appears to be false and
unnatural.

16. PW-2 Smt. Achchhi Devi had
stated that the accused broke down the
goods when the informant had gone to the
Police Station for lodging a report. The
mention of breakage of goods done by the
accused persons in the report Ex.A-1
indicates that the entire prosecution story is
planned, concocted and fabricated else this
fact could not have been mentioned report
(Ex.A-1). From this analysis of the
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid facts, learned Court below passed
the judgment and order dated 01.10.2011
acquitted the accused persons from all the
charges.
The
appellant-informant
has
challenged the aforesaid order on the
ground that PW-1, PW-2, PW-3, PW-4 and
PW-7 have proved the prosecution story
but the evidence adduced from the
complainant/informant's
side
was
not
considered by the Court below. The
grounds of challenge to the judgement and
order dated 01.10.2014 taken by the
informant/appellant are reproduced herein
below:-

"1. Because, the court below has
not considered the evidence on record.

2. Because, the prosecution has
successfully proved the case.

3. Because, the P.W.1, P.W.2, P.W.
3, P.W. 4 and P.W.7 have proved the
prosecution story but the court below has not
considered.

4. Because the evidence adduced
by the complainant/informant side was not
considered by the court below.

5. Because, the prosecution has
fully proved that the Opp. Parties have
committed alleged crime. But the court below
has ignored and overlooked the evidence
against the Opp. Parties/respondents which
is unfair and improper.

6. Because, the eye witnesses in
First Information Report namely Saukhi Lal,
Bhawanideen and Deshraj have not been
examined before the court below.

7. Because, without considering
the fact and circumstances of the case and
evidence produced by the prosecution, the
trial court has acquitted the accused
person illegally."

17. Shri Santosh Kumar Tiwari,
learned Amicus Curiae has placed reliance
on a decision of Hon'ble Supreme Court in
the case of Sunil Kumar Vs. State (Govt.
of NCT Delhi), (2003) 11 SCC 367 in
which relying upon earlier decision in
Vadivelu Thevar v. State of Madras,
AIR 1957 SC 614, the Hon'ble Supreme
Court has held that:-

"8. In Vadivelu Thevar v. State of
Madras this Court had gone into this
controversy and divided the nature of
witnesses in three categories, namely, wholly
reliable, wholly unreliable and lastly, neither
wholly reliable nor wholly unreliable. In the
case of the first two categories this Court said
that they pose little difficulty but in the case of
the third category of witnesses, corroboration
would be required. The relevant portion is
quoted as under: (AIR p. 619, paras 11-12)

"Hence, in our opinion, it is a
sound and well-established 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.

In the first category of proof, the
court should have no difficulty in coming to
5 All. Nokhe Lal Vs. State of U.P. & Ors.
1247
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
in coming 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 material particulars by
reliable testimony, direct or circumstantial.
There is another danger in insisting on
plurality of witnesses. Irrespective of the
quality of the oral evidence of a single
witness, if courts were to insist on plurality
of witnesses in proof of any fact, they will
be indirectly encouraging subornation of
witnesses."

18. He has also relied on a judgement
of Hon'ble Supreme Court in the case of
Amar Singh Vs. Balwinder Singh, (2003)
SCC 518, wherein the Hon'ble Supreme
Court has held that in cases of defective
investigation
the
court
has
to
be
circumspect in evaluating the evidence but
it would not be right in acquitting an
accused person solely on account of the
defect and to do so would tantamount to
playing into the hands of the investigating
officer if the investigation is designedly
defective. There can be no dispute to the
aforesaid proposition of law but the same
does
not
apply
to
the
facts
and
circumstances of the present case where the
prosecution witnesses themselves have
made contradictory statements regarding
material facts relating to the incident and
where PW-5 in whose house the PW-1 is
said to have taken shelter has categorically
denied the incident.

19. A perusal of the judgement and
order dated 01.10.2014 indicates that the
learned
Court
below
has
thoroughly
examined
the
statements
of
all
the
prosecution witnesses. It is settled law that
when
witnesses
are
related
persons,
although their testimony is admissible and
form basis of conviction of the accusedpersons, the testimony of interested witness
has to be examined with extra care and
caution.

20. Upon scrutiny of the statements of
the PW-1, PW-2 and PW-4, serious
discrepancies have come to light. PW-1 has
stated that he had gone to the Police Station
alone, however PW-2 stated that her
daughter had also gone to the Police
Station. GD (Ex.A-5) mentions that the
informant
(PW-1)
came
with
(Smt.
Achchhi Devi-PW-2). Thus the version of
PW-1, PW-2 and the narration in the GD,
all contradict each other which indicates
entries in the GD have been concocted.

21. This finding of the learned Court
below is based on a thorough and proper
analysis of the prosecution evidence. The
finding arrived at after a thorough analysis
of the entire admissible evidence placed on
record cannot at all be termed as perverse.

22. In Jayamma v. State of
Karnataka, (2021) 6 SCC 213, the
Hon'ble Supreme Court has reiterated the
manner in which the High Court should
exercise its power of scrutiny in an appeal
filed against an order of acquittal, in the
following words: -

"the
power
of
scrutiny
exercisable by the High Court under
Section 378 Cr.P.C. should not be routinely
invoked where the view formed by the trial
court was a "possible view". The judgment
of the trial court cannot be set aside merely
because the High Court finds its own view
more probable, save where the judgment of
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial court suffers from perversity or the
conclusions drawn by it were impossible if
there was a correct reading and analysis of
the evidence on record. To say it
differently, unless the High Court finds that
there is complete misreading of the
material evidence which has led to
miscarriage of justice, the view taken by
the trial court which can also possibly be a
correct view, need not be interfered with.
This self-restraint doctrine, of course, does
not denude the High Court of its powers to
reappreciate the evidence, including in an
appeal against acquittal and arrive at a
different firm finding of fact."

23. A perusal of the grounds taken in
the memo of appeal indicates that the order
of the learned Court below has not been
assailed on the ground that it is perverse.
During
the
submission
also,
learned
Amicus Curiae could not demonstrate that
the findings of the learned Court below are
perverse.

24. In these circumstances, in view of
the law laid down by Hon'ble Supreme
Court in the case of Jayamma (supra), we
find that the appellant has failed to make
out any ground for admission of the appeal.
The appeal is accordingly dismissed at the
stage of admission itself.
----------
(2022)05ILR A1248
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Misc. Writ Petition No. 2672 of 2022
AND
Criminal Misc. Writ Petition No. 3000 of 2022
AND
Criminal Misc. Writ Petition No. 3001 of 2022
AND
Criminal Misc. Writ Petition No. 3051 of 2022

Sharad Arora & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sudhanshu Kumar, Sri Rajrshi Gupta, Sri
Dileep Kumar (Sr. Adv.)

Counsel for the Respondents:
A.G.A., Ms. Katyayini, Sri Krishnarjun, Sri
Aman Lekhi (Sr.Adv.)

(A)
Criminal
Law
-
Constitution
of
India,1950
-
Article
226
-
Criminal
Procedure Code, 1973 - Sections 156 (3),
438 & 439 - Indian Penal Code, 1860 -
Sections 24, 25, 120-B, 406, 409, 420,
467, 468, 471 & 477-A - Arbitration and
Conciliation Act, 1996 - Sections 9 & 11 -
Companies Act, 2013 - Sections 206 & 224
- Writ Petitions - for quashing the FIR on the
ground of non-holding preliminary enquiry as
well as alleged offence is comes under
commercial dispute thus ought to be resolved
under Arbitration proceeding - both proceeding
arising out of Civil & Criminal offences can be
tried simultaneously - holding of preliminary
inquiry in every case of alleged commercial
offence would not be mandatory - FIR contains
ex-facie disclosure of cognizable offence such
information would have to be verified during
investigation - hence writ petition fails to
challenge the FIR.(Para - 17, 28, 29)

(B) Criminal Law - Constitution of India,
1950 - Article 226 - Criminal Procedure
Code, 1973 - Sections 156 (3), 438 & 439 -
Indian Penal Code, 1860 - Sections 24, 25,
120-B, 406, 409, 420, 467, 468, 471 &
477-A - Arbitration and Conciliation Act,
1996- Sections 9 & 11 - Companies Act,
2013 - Sections 206 & 224 - Writ Petitions -
for quashing the order/direction to register the
FIR - on the ground that alleged offence is
being a commercial dispute ought to be resolved
under Arbitration proceeding - preliminary
objection about maintainability of writ petition -