# Mihi Lal & Anr v. State

- **Citation:** (2024) 2 ILRA 1362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-07
- **Case number:** Criminal Appeal No. 1557 of 1983
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mihi-lal-anr-v-state-51251
- **Pages:** 17

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 323 & 34 - Appellants
challenged conviction and sentence of life
imprisonment under Section 302 read with
Section 34 IPC and six months' rigorous
imprisonment under Section 323 read with
Section 34 IPC by Additional Sessions Judge,
Budaun, dated 31.05.1983. Court held: (1)
Evidence of eye-witnesses PW-1 (Angoori Devi,
injured), PW-2 (Kunwar Sen), and PW-4 (Laung
Shree, daughter of deceased) consistent and
truthful; minor inconsistencies trivial and not
fatal (Balu Sudam Khalde Vs St. of Mah.,
Criminal Appeal No. 1910 of 2010). (2) Presence
of PW-1 and PW-4, relatives of deceased,
natural and credible; relationship not a ground
to discard testimony unless enmity proven to
cause false implication (Dalip Singh Vs St. of
Punj., AIR 1953 SC 364; Hari Obula Reddy Vs
St. of A.P., (1981) 3 SCC 675). (3) Medical
evidence (post-mortem and injury reports)
corroborated prosecution case. (4) FIR lodged
promptly, no evidence of anti-timing. (5) Enmity
a double-edged sword, not sufficient to discredit
prosecution evidence. No perversity in trial
court's findings. Appeals dismissed; surviving
appellants (Banwari and Jhamman Lal) to be
taken into custody to serve sentences. (Paras
49-73)

Case Law Cited:

## Text

_Characters 0–39,821 of 57,299. This is a partial read: ask again with offset=39821 for what follows._

1362 INDIAN LAW REPORTS ALLAHABAD SERIES
altered from 302 read with section 34 I.P.C.
to section 325 read with section 34 I.P.C.

(ii) This Court finds that the interest of
justice shall be served by sentencing the accused
Durga Prasad for a term of three years and a fine
of Rs. 30,000/-.

(iii) Out of the total amount of fine, Rs.
25,000/- shall be payable to the son of the
deceased Durga Prasad as compensation.

(iv) In case fine is not deposited, the accused
shall undergo three months simple imprisonment
for default in payment of fine.

(v) The period of imprisonment already
undergone shall be adjusted towards the
substantive sentence of imprisonment.

37. The accused shall surrender before the
court concerned immediately.

38. The bail bond and the personal bond
shall
stand
discharged.
Accordingly,
the
judgment and order of sentence are modified.
Appeal is allowed in part.

39. Let a copy of the judgment be
immediately transmitted to the court concerned for
preparation of conviction warrant.
----------
(2024) 2 ILRA 1362
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1557 of 1983
connected with
Criminal Appeal No. 1610 of 1983

Mihi Lal & Anr. ...Appellants
Versus
State ...Respondent
Counsel for the Appellants:
Sri Pt. Mohan Chandra, Sri Apul Misra, Sri P.N.
Misra, Sri Vinay Kumar Pathak

Counsel for the Respondent:
D.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 323 & 34 - Appellants
challenged conviction and sentence of life
imprisonment under Section 302 read with
Section 34 IPC and six months' rigorous
imprisonment under Section 323 read with
Section 34 IPC by Additional Sessions Judge,
Budaun, dated 31.05.1983. Court held: (1)
Evidence of eye-witnesses PW-1 (Angoori Devi,
injured), PW-2 (Kunwar Sen), and PW-4 (Laung
Shree, daughter of deceased) consistent and
truthful; minor inconsistencies trivial and not
fatal (Balu Sudam Khalde Vs St. of Mah.,
Criminal Appeal No. 1910 of 2010). (2) Presence
of PW-1 and PW-4, relatives of deceased,
natural and credible; relationship not a ground
to discard testimony unless enmity proven to
cause false implication (Dalip Singh Vs St. of
Punj., AIR 1953 SC 364; Hari Obula Reddy Vs
St. of A.P., (1981) 3 SCC 675). (3) Medical
evidence (post-mortem and injury reports)
corroborated prosecution case. (4) FIR lodged
promptly, no evidence of anti-timing. (5) Enmity
a double-edged sword, not sufficient to discredit
prosecution evidence. No perversity in trial
court's findings. Appeals dismissed; surviving
appellants (Banwari and Jhamman Lal) to be
taken into custody to serve sentences. (Paras
49-73)

Case Law Cited:

1. Balu Sudam Khalde Vs St. of Mah., Criminal
Appeal No. 1910 of 2010 (Para 49)

2. Dalip Singh Vs St. of Punj., AIR 1953 SC 364
(Paras 61, 62)

3. Piara Singh Vs St. of Punj., (1977) 4 SCC 452
(Para 63)

4. Hari Obula Reddy Vs St. of A.P., (1981) 3 SCC
675 (Para 64)

5. S. Sudershan Reddy Vs St. of A.P., (2006) 10
SCC
163
(Para
65)
2 All. Mihi Lal & Anr. Vs. State
1363
6. Kamta Yadav Vs St. of Bihar, (2016) 16 SCC
164 (Para 66)

7. Nand Kumar Vs St. of Chhattisgarh, (2015) 1
SCC 776 (Para 66)

8. Ashok Rai Vs St. of U.P., (2014) 5 SCC 713
(Para 67)

9. Mritunjoy Biswas Vs Pranab alias Kuti Biswas,
(2013) 12 SCC 796 (Para 68)

10. Inder Singh Vs St. of Raj., (2015) 2 SCC 734
(Para 69)

11. Bharwada Bhoginbhai Hirjibhai Vs St. of
Gujarat, 1983 Cri LJ 1096 (Para 49)

12. Leela Ram Vs St. of Har., (1999) 9 SCC 525
(Para 68)

13. Rammi Vs St. of M.P., (1999) 8 SCC 649
(Para 68)

14. Shyamal Ghosh Vs St. of W.B., (2012) 7 SCC
646 (Para 68)

15. Tahsildar Singh Vs St. of U.P., AIR 1959 SC
1012 (Para 49)

(Delivered by Hon. Mohd. Azhar Husain
Idrisi, J)

1. Heard Shri Apul Mishra, learned
counsel for the appellants, Shri Jitendra
Kumar Jaiswal, learned AGA for the State
and perused the record.

2. The instant criminal appeals have
been filed against the judgment and order
dated 31.05.1983 passed by Additional
Sessions Judge, Budaun in Session Trial
No. 27 of 1981, arising out of Case Crime
No. 162 of 1980, under Sections 302, 323
IPC, Police Station Jarif Nagar, District
Budaun, whereby the accused-appellants
have been convicted for the offence under
Section 302 read with Section 34 IPC and
awarded the sentence of life imprisonment
and also under Section 323 read with
Section 34 IPC and awarded the sentence
of six months' rigorous imprisonment.

3. It has been informed that appellant
no.1 Mihi Lal in Criminal Appeal No. 1557
of 1983 had already expired and as such,
the instant appeal qua appellant no.1 Mihi
Lal was dismissed as abated by this Court
vide order dated 27.10.2018.

4. As per the prosecution case, as
unraveled in the FIR lodged by one
Dumbar Singh, vide written report (Ex. Ka1) dated 16.10.1980 at 8:45 PM, which was
registered vide Case Crime No. 162 of
1980, under Sections 302/323 IPC in Police
Station Jarif Nagar, District Budaun vide
G.D. No. 24 (Ex. Ka-11) of the written
report and chik FIR (Ex. Ka-3) prepared by
PW-6 Hari Ram Sharma at the relevant
date and time.

5. The allegations made in the FIR are
that about two years back, Choban Singh,
son of Mihi Lal was murdered, in which,
Khemai, Virendra Singh and Tara Singh
along with seven other villagers were
falsely nominated as accused and they were
put to trial, however, about 8-9 days back,
the
said
case
ended
in
acquittal.
Consequent to the said acquittal, the
appellants and his relatives started bearing
animosity against them. There were certain
other cases also, on account of which, the
appellants used to bear enmity against
them.

6. It is further alleged that on
16.10.1980 in the forenoon, while the first
informant Angoori alongwith his cousin
father-in-law Khemai and sister-in-law
Laung Shree were returning back to their
village after cutting the paddy crops and
reached near the boundary marks of the
1364 INDIAN LAW REPORTS ALLAHABAD SERIES
field of Gyani and Udaiveer, then from the
eastern side of the bushes, Mihi Lal, son of
Abhai Ram, armed with farsa and his sons
Jhamman, Aaram Singh, armed with lathis
and Banwari Lal, nephew of Mihi Lal,
armed with SBBL gun, emerged and
exhorted to kill his cousin father-in-law
Khemai, who threw the bundle of paddy
crops, which he was carrying on his head
and tried to make his escape good,
however, Banwari fired a shot, which hit
him, due to which, he fell down near the
boundary marks of the field of Udaiveer,
thereafter, Mihi Lal, Jhamman and Aaram
Singh started assaulting him with their
respective weapons. They raised alarm
after throwing away the bundle of paddy
crops, which they were carrying on their
head and tried to rescue Khemai by laying
down on him, however, she was also assaulted
by the assailants with lathis. Laung Shree, who
was ahead of the two, also threw away the bundle
of paddy crops, which she was carrying and raised
alarm. On the alarm being raised by them,
Kunwar Sen (PW-2) and Tara Singh reached the
place of incident and challenged the assailants,
who made their escape good towards north.
Khemai died on the spot itself.

7. The aforesaid FIR was lodged alleging therein
that accused-appellants along with Banwari had
killed Khemai and caused injuries to the first
informant Angoori Devi. The said FIR was
registered in the presence of S.I. Hari Ram
Sharma (PW-6), who took over the investigation
and recorded the statement of Head Constable
Azhar Hussain (PW-7), who had drawn the chik
FIR and made the G.D. entry and thereafter,
reached the place of incident at about 10:30 PM
and thereafter, recorded the statement of Angoori
Devi, Laung Shree, Tara Singh, Kunwar Sen and
Dumbar Singh and stayed in the village.

8. On the next morning at 6:30 AM,
Investigating Officer S.I. Hari Ram Sharma again
reached the place of incident and conducted the
panchayat nama (Ex. Ka-4). He also prepared the
photo-nash (Ex. Ka-5) and challan-nash (Ex. Ka6) and sent a letter to the C.M.O. (Ex. Ka-7) and
prepared a sample seal. The site plan was also
prepared by the Investigating Officer and marked
as Ex. Ka-8. Thereafter, the dead body of the
deceased was sealed and dispatched for autopsy.
The Investigating Officer has also found three
bundles of paddy crops, which the deceased and
two other eye-witnesses were carrying at the time
of incident and drawn its recovery memo
alongwith sample of plain earth, blood soaked
earth and pieces of broken bangles, which were
marked as Ex. Ka-9.

9. An autopsy was conducted on the
person of the deceased Khemai in District
Hospital on 18.10.1980. In the post-mortem
report, the Doctor has noted the following
injuries:-

(i) Lacerated wound 3.5 C.M. x 0.5 cm
x bone over part of fore-head, 2.5 cm above root
of

nose.

(ii) Lacerated would 2 cm x 1.5 cm x
bone over left side of fore-head, 1 cm above eyebrow.

(iii) Lacerated wound 5.5 cm x 1 cm x
bone over left parietal region, 1 cm above ear.

(iv) Incised wound 2.5 cm x 0.5
cm x bone over left parietal region. 4.5 cm
behind injury
no.3.

Clean cut margins with sharp
edges.

(v) Incised wound 1.5 cm x 0.5
cm x scalp over left occipital region.

(vi) Incised wound 1 cm x 0.5 cm
x scalp over left occipital region, 1 cm
below injury no.v.

Clean cut margins with sharp
edges.

(vii) Lacerate wound 5.5 cm x 0.5
cm x bone over right parietal region, 10 cm
above ear.
2 All. Mihi Lal & Anr. Vs. State
1365

(viii) Incised wound 2 cm x 1 cm
x muscle deep over left side of body left
lower jaw at its

lower border clean
cut margins with sharp edges.

(ix) Incised wound 2 cm x 1/2 cm
x skin over left side of face, 2 cm in front of
tragus of left
ear.

(x) Gunshot abrasion due to
burning 6 cm x 1 cm over left side of neck
at its middle 1/3rd
placed
horizontally.

(xi) Abrasion 2 cm x 2 cm over
back of left shoulder.

(xii) Abrasion 2 cm x 1 cm over
front of right knee.

On internal examination, the Medical
Officer found fracture of both parietal bones
and frontal bone under injury no.1, 2, 3 and 7.
Membranes were also lacerated and teared at
places, brain was also congested and lacerated
at places. Right chamber of heart contained
clotted blood, while left chamber was empty.
About 400 gm digested food material was
present in the stomach. The small and large
intestines were full of gases and faecal matter.
Bladder was empty. According to the Medical
Officer, the death was caused due to shock and
hemorrhage as a result of antemortem injuries.

10. The medical officer also proved the
post-mortem report (Ex. Ka-2). Smt. Angoori
Devi was also medically examined by Dr. O.P.
Agarwal (PW-8) of P.H.C., Dehgawan on
17.10.1980 at 6:50 PM. The Doctor has noted
following injuries:-

(i) An abrasion on the back of left
hand 3 cm below the wrist joint size 0.4 cm x
0.2 cm

surrounded by painful
swelling.

(ii) Painful swelling of right fore-arm
in 1 cm area, 4 cm above the wrist joint.

(iii) The patient tells pain in right
scapular region. No visible sign of injury.

11. The medical officer also proved the
injury report of Angoori Devi (Ex. Ka-12).

12. After concluding the investigation, the
Investigating Officer had filed the charge-sheet
(Ex. Ka-10) against all the nominated accused
persons under Sections 302, 323, 324 IPC.

13. On the basis of the said charge-sheet,
learned Magistrate had taken cognizance and
since the case was exclusively triable by the
court of Sessions, made over the case to the
court of Sessions for trial. The Sessions Court
vide its order dated 28.04.1981 framed the
charges against the accused persons under
Section 302 read with Section 34 IPC and
Section 323 read with Section 34 IPC. All the
accused-appellants abjured the charges and
claimed to be tried.

14. During the course of trial, the
prosecution has examined as many as four
witnesses of fact and four formal witnesses.
Their testimony in brief is enumerated
hereunder :-

15. PW-1 Angoori Devi is an eyewitness of the incident and also received
injuries at the time of the incident. The FIR
was scribed at her dictation, which was
scribed by one Rajendra Singh. She tried to
lodge the report at the Police Station,
however, since the accused persons had
obstructed her way, she returned back to
her house and thereafter, the report was
handed over to Dumbar Singh, who
reached the Police Station and lodged the
first information report.

16. PW-1 Angoori Devi in her
statement has categorically stated that
while they were returning back to their
house after cutting paddy crops and had
reached near the fields of Gyani and
Udaiveer, the assailants emerged from
1366 INDIAN LAW REPORTS ALLAHABAD SERIES
eastern side and exhorted to kill Khemai,
who tried to make his escape good by
throwing away the bundle of paddy crops,
which he was carrying, however, he was
fired upon by the assailant Banwari by the
SBBL gun, which hit him and he fell down.
Thereafter, he is said to have been
assaulted by Mihi Lal, armed with farsa,
Jhamman and Aaram Singh, both armed
with lathi.

17. PW-1 tried to rescue his father-inlaw Khemai by bending over him,
however, the assailants assaulted her by
lathi causing injuries on her person. An
alarm was raised by the said witness and
one
Laung
Shree,
who
was
also
accompanying her. The alarm attracted
other witnesses, namely, Kunwar Sen and
Tara Singh, who reached there and
challenged the assailants, who made their
escape good. On account of assault made
by the assailants, Khemai died on the spot.
The FIR in respect of the incident was
scribed at the dictation of the said witness,
which was scribed by one Rajendra Singh
and the FIR was lodged in the Police
Station by one Dumbar Singh (P.W.3).

18. The said witness has been
exclusively cross-examined by the defence,
however, nothing adverse could be elicited
from her statement. The witness however
denied the suggestion that she had not seen
the incident and that the FIR was lodged
after three days of the incident. She
categorically stated that she had received
three injuries on her person and she had
shown her injuries to the Investigating
Officer, who had reached in the village to
investigate the case and was also medically
examined at P.H.C. Dehgawan, Budaun.

19. She has further categorically
denied the fact that she was not present at
the time and scene of the incident and her
injuries are fake and self-inflicted. She has
further denied not to have gone with the
victims to cut the paddy crops. During
cross-examination, she has further stated
that at the time of incident, she along with
Laung Shree and Khemai were returning
back to her home. She has further
categorically stated that Banwari fired a
shot from the distance of about 15-16 paces
and in order to rescue Khemai from the
assault of accused-assailants, she had, in
fact, bent over him but did not lay upon
him. She has further denied the factum that
at the time of incident, Mihi Lal was in
Khadrabad market alongwith Jhamman and
Aaram Singh and Banwari was in his
village. She has further categorically
denied the fact that on account of inimical
terms with the assailants, she had lodged
the report.

20. PW-2 Kunwar Sen is another eyewitness of the incident, who has clearly
deposed that at the time of the incident, he
was at his field and on raising alarm by
Angoori Devi and Laung Shree, he had
rushed to the place of incident and saw the
deceased Khemai lying on the boundary
marks of field of Gyani and Udaiveer and
was being assaulted by Mihi Lal by farsa
and Jhamman and Aaram Singh by lathis,
whereas Banwari was standing there with
his SBBL gun. Angoori Devi with an
intention to rescue Khemai had bent over
him, who was also assaulted by lathi,
consequent to which, she suffered injuries
and her bangles were also broken. The
assailants, on being challenged, made their
escape good. At the relevant time, Laung
Shree, Dumbar Singh and other villagers
were also present.

21. The said witness has also been
extensively cross-examined by the defence
2 All. Mihi Lal & Anr. Vs. State
1367
and has explained the alleged inimical
terms with the accused persons. He has
further stated that while he was keeping
guard of dead body of Khemai, the
Investigating Officer had reached there at
about 10-11:00 PM and interrogated him
and on the next day, recorded his statement
and he had clearly told him that he is an
eye-witness of the incident and the fact that
at the relevant time, Angoori and Laung
Shree were also present there. In his crossexamination, he has further stated that at
the time of incident, he was present at his
field, where mustard crop were grown and
had reached the place of incident, which
was at a distance of 30 to 40 paces. He has
further categorically stated that when he
rushed to the place of incident after hearing
the fire shot, he had seen Banwari standing
on the road but he had not actually seen
Banwari firing from his SBBL gun and
could not state as to who fired the shot. He
has further stated that while rushing to the
place of incident, he had challenged the
assailants alongwith Tara Singh. He has
categorically denied the suggestion that he
along with Khemai formed a gang nor he is
a member of the gang. He has further
denied the suggestion that there were illicit
relations between the wife of Khemai with
one Virendra, due to which, Virendra had
caused the murder of Khemai. He has
further denied the fact that Khemai was
killed in an incident of dacoity and false
case has been cooked up by him.

22. PW-3 Dumbar Singh is not an
eye-witness of the incident, however, he is
the person, who had carried written report
scribed by Rajendra Singh at the dictation
of PW-1 Angoori and had lodged the report
in the Police Station. In his crossexamination, he has categorically stated
that the FIR was scribed by Rajendra Singh
at the dictation of Angoori Devi, which was
heard by him. He has further categorically
stated that he reached the Police Station in
an hour and Head Moharrir had lodged the
report in presence of the Investigating
Officer, who had reached the village to
investigate the case. He has categorically
denied the suggestion that FIR was lodged
after three days of the incident.

23. PW-4 Laung Shree is the daughter
of the deceased and another eye-witness of
the incident, who was accompanying the
deceased and Angoori Devi at the time of
the incident. She had categorically stated
that after cutting paddy crops, she along
with her father Khemai and sister-in-law
Angoori Devi were returning back to their
village and when they reached near the
boundary marks of Gyani and Udaiveer, the
assailants Banwari, Mihi Lal, Jhamman and
Aaram Singh emerged from the bushes.
She has further stated that Banwari was
armed with gun, Mihi Lal was armed with
farsa, Jhamman and Aaram Singh, both
were armed with lathis. Mihi Lal exhorted
to kill Khemai as he has been acquitted by
the court but could not escape from their
clutches. On exhortation, her father threw
away the bundle of paddy crops and started
running towards the west, he was chased by
Banwari, who fired a shot upon him. They
also threw away the bundle of paddy crops,
which they were carrying on their head. On
account of fire made by Banwari, his father
received injuries and fell down on the
boundary marks of Gyani and Udaiveer and
thereafter, Mihi Lal armed with farsa,
Jhamman and Aaram Singh, armed with
lathis, assaulted him. She along with her
sister-in-law Angoori Devi raised alarm
and Angoori tried to rescue his father by
bending over him, however, she was also
assaulted by lathi, consequent to which, she
received injuries and her bangles were
broken and fell down there.
1368 INDIAN LAW REPORTS ALLAHABAD SERIES

24. She has further stated that on
raising alarm, Kunwar Sen and Tara Singh
reached there and on their challenge, the
assailants made their escape good. Her
father died on the spot. The police has
reached the place of incident and recorded
her statement.

25. During cross-examination, she
had categorically narrated the manner how
her father was assaulted by Banwari and
three other assailants. She has denied the
suggestion that she had not actually seen
the incident. She has further stated that
when the police reached the place of
incident, she was present by the side of his
father and had categorically denied the fact
that dead body of her father was shifted to
the fields of Kunwar Sen. She was
examined by the Investigating Officer
alongwith
other
witnesses.
She
had
disclosed to the Investigating Officer that
during assault, glass bangles of Angoori
Devi were broken and fell on the ground in
the said incident, however, she could not
explain as to how the said fact has not been
mentioned in her statement recorded by the
Investigating Officer. She has further
denied the suggestion that on the date of
incident, Mihi Lal and his sons had gone to
Khadrabad Bazar and Banwari was in his
village. She further stated that Mihi Lal had
falsely implicated his father and brother in
a murder case.

26. PW-5 Dr. N.P. Singh had
conducted an autopsy on the person of the
deceased, who had proved the autopsy
report and contents thereof and the autopsy
report has been exhibited as Ex. Ka-2. He
has further stated that death of the deceased
could be caused on 16.10.1980 at 3-4:00
PM and lacerated wounds on the person of
the deceased could be caused by lathi and
incised wounds on his person could be
caused by farsa. He has further denied the
suggestion that the deceased died in the
midnight between 15/16.10.1980. He has
further stated that only one gun shot injury
has been found on the person of the
deceased having burning. He has further
denied the suggestion that the said injury
could be caused by the tip of a knife.

27. PW-6 S.I. Hari Ram Sharma is the
Investigating Officer and he proved the
various stages of the investigation and has
inspected the spot and recorded the
statement of the witnesses and prepared the
site plan (Ex. Ka-8) and took the
possession of plain earth, blood soaked
earth, broken bangles and three bundles of
paddy crops and has drawn its recovery
memo (Ex.Ka-9) and had sent the victim
Angoori Devi through constable for her
medical examination. He has further stated
that
on
23.10.1980,
the
appellants
surrendered before the court and on
31.10.1980, he interrogated them and
thereafter, concluded the investigation and
submitted the charge-sheet (Ex. Ka-10).

28. He has further categorically stated
that on the eastern side of the boundary
marks of Gyani and Udaiveer, the crops
were cut, where the dead body was lying.
During
cross-examination,
he
has
categorically stated that the FIR was lodged
in his presence and thereafter, he had left
the Police Station for the investigation. He
has further categorically denied the fact
that when he reached the place of incident,
the dead body was kept in the Madahiya of
Satyam Singh and thereafter in the next
morning, the dead body was kept at the
boundary mark of Udaiveer in the field of
Gyani, where mixed crops of Jwar and
Arhar were sown. The panchayat nama was
conducted on the next day because there
was no adequate arrangement of light. He
2 All. Mihi Lal & Anr. Vs. State
1369
has further categorically stated that the FIR
was sent along with dead body and the
factum of sending the FIR is clearly
mentioned
in
the
panchayat
nama
numbered as Paper No.9. He has further
categorically denied that the suggestion that
the FIR was registered after conducting the
post-mortem.

29. PW-7 is the Head Constable
Azhar Hussain of the Police Station Wazir
Ganj, who made G.D. entry of the written
report and drawn the chik FIR in
connection therewith. The chik FIR and
written report were exhibited as Ex. Ka-3
and Ex. Ka-11. He has further stated that
Dumbar Singh had given the written report
on 16.10.1980 at 8:45 PM or 20:45 hours,
however, in the G.D., it has not been
mentioned as to how the said FIR was sent
to the S.P. Office but an entry has been
made that the FIR was sent on 17.10.1980
at 7:00 AM. He has further denied the
suggestion that FIR was lodged on the third
day after the post-mortem.

30. PW-8 Dr. O.P. Agrawal is the
doctor, who examined the injuries of the
victim Angoori Devi, who is said to have
been examined on 17.10.1980 at 6:30 PM.
He has proved the said injury report (Ex.
Ka-12). In his cross-examination, he has
further categorically stated that the victim
was examined, when she had reached there
and the time of medical examination has
been noted in the injury report. He has
further stated that the injuries have been
noted on the other side of Majroobi Chitthi.
He has further stated that the injuries has
been caused by the hard blunt weapon.

31. Thereafter, the statement of
accused under Section 313 CrPC has been
recorded by putting all the incriminating
circumstances to the surviving appellants
Banwari and Jhamman. The appellants
denied the incriminating circumstances and
stated
that
they
have
been
falsely
implicated.
The
accused-appellant
Jhamman has stated that at the time of
incident, he was in Khadrabad market and
in the next morning, the dead body of the
deceased Khemai was lying in Madahiya of
Satyam Singh and the police kept it in the
field of Gyani, however, no specific plea
has been taken by the appellant Banwari in
his statement under Section 313 CrPC.

32. The defence, however, has not led
any evidence to prove its case. The trial
court after appreciating the evidence, has
held that the prosecution has successfully
established the case against the surviving
appellants by relying upon the testimony of
prosecution witnesses, namley, Angoori
Devi, who is the injured eye-witness as
well as Laung Shree, who is the daughter of
the deceased and natural witness. The
explanation tendered by the appellants is
false and inadequate and as such, they are
liable to be convicted.

33. Learned counsel for the appellants
has submitted that actual incident of the
assault has not been witnessed by anyone
and only on the basis of cooked up and
concocted story, an attempt has been made
to the create an eye-witness of the incident
in the form of statement of PW-1, PW-2
and PW-4, who are the closed relatives of
the deceased being his daughter and
daughter-in-law, who are highly partisan
and interested witnesses.

34. Learned counsel for the appellants
has further submitted that injuries shown to
be received by the victim Angoori Devi are
superficial, self-inflicted and manipulated,
though the deceased is said to have been
brutally assaulted.
1370 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Learned counsel for the appellants
has further submitted that in the FIR, it is
stated that the victim Angoori Devi, in
order to rescue his father-in-law Khemai,
laid upon him, however subsequently, it
has been stated that she, in order to rescue
his father-in-law, bent over him and she
was also assaulted, which is a clear
improvement just to falsely implicate the
appellants.
Learned
counsel
for
the
appellants has next challenged the presence
of second eye-witness Laung Shree, being
daughter of the deceased, who is highly
interested and partisan witness.

36. Learned counsel for the appellants
has next submitted that the appellants are
on the inimical terms with the deceased and
eye-witnesses, therefore, the appellants
have been falsely implicated. There is a
delay in lodging the FIR, which has not
been explained at all.

37. Learned counsel for the appellants
has further submitted that in the instant
case, Angoori Devi had lodged the FIR
despite the fact that Laung Shree, daughter
of the deceased was present there, which
further
makes
the
prosecution
case
doubtful. The factum of assailants stopping
Angoori Devi to lodge the FIR stands
falsified from the circumstances that
Dumbar Singh went to lodge the FIR, who
otherwise could have also been stopped by
the assailants.

38. Learned counsel for the appellants
has next submitted that FIR was infact
lodged after conducting the post-mortem of
the deceased but has been shown to be
registered at the relevant time by making it
anti-time.

39. Learned counsel for the appellants
has further submitted that there is no reason
for Banwari to join the said incident being
nephew
(sister?s
son)
of
the
other
assailants, who are on inimical terms.

40. In the backdrop of the said
circumstances, it is thus submitted that
prosecution has miserably failed to prove
its case against the appellants and as such,
they are liable to be acquitted.

41. Per contra, learned AGA has
submitted that prosecution has successfully
proved the case against the appellants by
cogent and reliable evidence. He has placed
implicit reliance upon the testimony of
PW-1 Angoori Devi and PW-4 Laung
Shree,
who
were
accompanying
the
deceased at the time of the incident and are
natural witnesses.

42. Learned AGA has further
submitted that injuries of Angoori Devi,
received at the time of incident and her
unimpeachable testimony as an injured eye
witness, clinchingly proves the case against
the appellants.

43. Learned AGA has further
submitted that Investigating Officer as well
as Head Moharrir had categorically stated
that FIR was lodged in their presence on
16.10.1980 at 8:45 PM and there is nothing
to show that the said FIR has been lodged
by making it anti-time.

44. Learned AGA has further
submitted that even PW-2 Kunwar Sen is
also a reliable witness, which is evident
from the circumstances that he had
categorically stated that at the time of the
incident, when he rushed to the place of
incident on the alarm raised by Angoori
and Laung Shree, he saw Banwari standing
there with a gun and thereafter, stated that
he had seen the other assailants, namely,
2 All. Mihi Lal & Anr. Vs. State
1371
Mihi Lal, Jhamman and Aaram Singh
assaulting the deceased by farsa and lathi.
Had he not been a truthful witness, he
would have safely stated that he had even
seen Banwari firing upon the deceased,
which clearly shows that PW-2 is a truthful
witness and has only mentioned that part of
the incident, which he had actually seen
and observed without making any attempt
of false implication or exaggeration.

45. Learned AGA has further
submitted that Laung Shree is a young girl
aged about 20 years and grief stricken on
account of death of her father and as such,
there is no reason to doubt the lodging of
the FIR by Angoori Devi, who was also
accompanying the deceased at the time of
the incident and being a grown up lady had
witnessed the entire incident of assault on
the deceased and was also injured in the said
incident, whose injuries has been examined and
proved by the Doctor.

46. Learned AGA has further submitted
that enmity between the parties is a double
edged sword and therefore, merely on the
ground of inimical terms, the prosecution story
can not be doubted and thrown over board,
which otherwise has been truthfully and
cogently proved by the prosecution.

47. Learned AGA has further submitted
that time, place and manner of the incident has
been clinchingly established by the prosecution.
The post-mortem and the injury report of the
victim clinchingly corroborates the prosecution
story and as such, it can not be said that the
prosecution has failed to prove its case beyond
reasonable doubt and has supported the
impugned order.

48. Having considered the rival
submissions made by learned counsel for the
parties and having gone through the material
available on record, the only question that falls
our consideration is whether the trial court
committed any error in passing the impugned
judgment and order.

49. So far as the appreciation of oral
evidence is concerned, the Hon'ble Apex Court
in a recent decision in Criminal Appeal No.
1910 of 2010 (Balu Sudam Khalde and
Another Vs. The State of Maharashtra) has
held that:

25. The appreciation of ocular
evidence is a hard task. There is no fixed or
straight-jacket formula for appreciation of the
ocular evidence. The judicially evolved
principles for appreciation of ocular evidence
in a criminal case can be enumerated as under:

"I.
While
appreciating
the
evidence of a witness, the approach must
be whether the evidence of the witness read
as a whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the Court to
scrutinize the evidence more particularly
keeping in view the deficiencies, drawbacks
and infirmities pointed out in the evidence
as a whole and evaluate them to find out
whether it is against the general tenor of
the evidence given by the witness and
whether the earlier evaluation of the
evidence is shaken as to render it unworthy
of belief.

II. If the Court before whom the
witness gives evidence had the opportunity
to form the opinion about the general tenor
of evidence given by the witness, the
appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the trial court
and unless there are reasons weighty and
formidable it would not be proper to reject
the evidence on the ground of minor
variations or infirmities in the matter of
trivial details.
1372 INDIAN LAW REPORTS ALLAHABAD SERIES

III. When eye-witness is examined
at length it is quite possible for him to make
some discrepancies. But courts should bear
in mind that it is only when discrepancies
in the evidence of a witness are so
incompatible with the credibility of his
version that the court is justified in
jettisoning his evidence.

IV. Minor discrepancies on trivial
matters not touching the core of the case,
hyper
technical
approach
by
taking
sentences torn out of context here or there
from the evidence, attaching importance to
some technical error committed by the
investigating officer not going to the root of
the matter would not ordinarily permit
rejection of the evidence as a whole.

V. Too serious a view to be
adopted on mere variations falling in the
narration of an incident (either as between
the evidence of two witnesses or as between
two statements of the same witness) is an
unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot
be expected to possess a photographic
memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.

VII. Ordinarily it so happens that
a witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb
the details.

VIII. The powers of observation
differ from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go unnoticed on
the part of another.

IX. By and large people cannot
accurately recall a conversation and reproduce
the very words used by them or heard by them.
They can only recall the main purport of the
conversation. It is unrealistic to expect a witness
to be a human tape recorder.

X. In regard to exact time of an
incident, or the time duration of an occurrence,
usually, people make their estimates by guess
work on the spur of the moment at the time of
interrogation. And one cannot expect people to
make very precise or reliable estimates in such
matters. Again, it depends on the time-sense of
individuals which varies from person to person.

XI. Ordinarily a witness cannot be
expected to recall accurately the sequence of
events which take place in rapid succession or in
a short time span. A witness is liable to get
confused, or mixed up when interrogated later
on.

XII. A witness, though wholly truthful,
is liable to be overawed by the court atmosphere
and the piercing cross examination by counsel
and out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details
from imagination on the spur of the moment. The
sub-conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
or being disbelieved though the witness is giving
a truthful and honest account of the occurrence
witnessed by him.

XIII. A former statement though
seemingly inconsistent with the evidence need
not necessarily be sufficient to amount to
contradiction. Unless the former statement has
the potency to discredit the later statement, even
if the later statement is at variance with the
former to some extent it would not be helpful to
contradict that witness.?

[See Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat 1983 Cri LJ 1096 : (AIR 1983
SC 753) Leela Ram v. State of Haryana AIR
1995 SC 3717 and Tahsildar Singh v. State of
UP (AIR 1959 SC 1012)].

26. When the evidence of an
injured eye-witness is to be appreciated,
the
under-
noted
legal
principles
enunciated by the Courts are required to be
kept in mind:-
2 All. Mihi Lal & Anr. Vs. State
1373

(a) The presence of an injured
eye-witness at the time and place of the
occurrence cannot be doubted unless there
are
material
contradictions
in
his
deposition.

(b)
Unless,
it
is
otherwise
established by the evidence, it must be
believed that an injured witness would not
allow the real culprits to escape and falsely
implicate the accused.

(c) The evidence of injured
witness has greater evidentiary value and
unless compelling reasons exist, their
statements are not to be discarded lightly.

(d) The evidence of injured
witness cannot be doubted on account of
some embellishment in natural conduct or
minor contradictions.

(e) If there be any exaggeration
or immaterial embellishments in the
evidence of an injured witness, then such
contradiction,
exaggeration
or
embellishment should be discarded from
the evidence of injured, but not the whole
evidence.

(f) The broad substratum of the
prosecution version must be taken into
consideration and discrepancies which
normally creep due to loss of memory with
passage of time should be discarded.

50. Thus, while appreciating the
evidence of eye-witnesses, two principal
considerations are to be kept in mind (i)
whether, in the circumstances of the case, it
is possible to believe their presence at the
scene of occurrence and (ii) whether there
is anything inherently improbable or
unreliable in their evidence.

51. Keeping the aforesaid principle of
law in mind, we are now analyzing the oral
evidence of three eye-witnesses i.e. PW-1
Angoori Devi, PW-2 Kunwar Sen and PW4 Laung Shree. Going through the oral
evidence of all the three eye-witnesses, we
find that they are consistent and truthful in
their statements and there is no good reason
for us to disbelieve the ocular version as
narrated by the aforesaid three eyewitnesses.

52. Learned counsel for the appellants
also could not point out any material
inconsistency in the statement of all the
three eye-witnesses, except the fact that in
the FIR, which was registered at the
instance of PW-1 Angoori Devi, it has been
stated that while the deceased Khemai was
being assaulted, she in order to rescue him
laid upon him, however, in her subsequent
statement before the trial court, it has been
stated that in order to rescue him, she bent
over him, consequent to which, she was
also
assaulted
and received injuries,
however, the said inconsistency is of very
trivial nature and that too in the FIR, which
can not said to be a substantive piece of
evidence.

53.