# Mukesh Tiwari v. State of U.P

- **Citation:** (2021) 3 ILRA 1005
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-tiwari-v-state-of-u-p-46872
- **Pages:** 24

## Text

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3 All. Mukesh Tiwari Vs. State of U.P.
1005

16. The trial court observed that
though the investigating officer mentioned
the name of Udit Narayan in case diary in
place of Lalit Narayan but since Smt.
Manorama Devi (PW-1) had clearly stated
that Lalit Narayan and Ajit Narayan were
sleeping at her house on the night of the
incident, the accused persons cannot get the
benefit
of
the
error
made
by
the
investigating officer. Thus, by placing
reliance on the testimony of PW-1, the trial
court concluded that the prosecution
successfully proved the charges against the
appellants under Section 452, 302 read with
Section 34 I.P.C., beyond all reasonable
doubt and thereby convicted and sentenced
the appellants as above.

17. Being aggrieved by the trial
court's order, the appellants have preferred
these appeals.

SUBMISSIONS
BEFORE
THIS COURT

18. We have heard Sri V. P.
Srivastava, learned Senior counsel assisted
by Sri A. S. Chaturvedi for the appellant
Mukesh Tiwari; Sri Amit Mishra, learned
counsel for the appellants Indrajit Mishra
and Sanjit Mishra; Sri Patanjali Mishra,
learned A.G.A., for the State; and Sri S. K.
Chaubey, learned counsel for the informant
and have perused the record.

19. Learned counsel for the appellants
vehemently
urged
that
PW-1
Smt.
Manorama Devi and PW-2 Ajit Narayan
Pathak had not seen the incident. The
presence of alleged eyewitnesses PW-1 and
PW-2 at the time of the incident is highly
doubtful and unbelievable because at the
time of the incident PW-1 and PW-2 were
present in Village Shivpur, both of them
were informed and called by the Police
after the death of injured Pratap Shankar
Mishra, and it is for this reason that the FIR
has been lodged after 3.20 hours. This
delay
is
fatal
to
the
prosecution,
particularly, because the distance between
the place of the incident and the police
station is only 1/2 Km. The minute
description in the first information report
also suggests that it has been lodged after
legal consultation and deliberation.

20. Learned counsel for the appellants
further submitted that there are material
contradictions/omissions
in
the
oral
testimony of PW- 1 Smt. Manorama Devi
and PW- 2 Ajit Narayan Pathak with regard
to their presence at the time of the incident.
There is a contradiction in the testimony of
PW-4 CP Kanhaiya Yadav and PW-7 S.I.
Hasmat Khan in respect of the presence of
eye-witnesses. Though appellants-accused
persons were alleged to have
been
recognized in the light of the lantern, but
the lantern was not recovered by the
investigating officer. The gunshot injury
could not be caused in the manner and from
the place where the appellants were alleged
to be present at the time of firing the
gunshot. There is a material contradiction
between the testimony of PW-1 Smt.
Manorama Devi and PW-5 Dr. B. Narayan
in respect to injury no. 1. The role of
catching hold of the deceased has been
attributed to the appellants Indrajit Mishra
and Sanjit Mishra even though the shot has
allegedly been fired from a point-blank
range and the bullet entered the body from
the middle of the neck just above Supra
external notch and exited the body from the
back of right side of the chest just below
scapula bone, which renders the ocular
account highly unbelievable.

21. Learned counsel for the appellants
further contended that the trial court
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
ignored the evidence of DW-1 Sanjay
Maurya
wherein
he
stated
that
the
appellants Indrajit Mishra and Sanjit
Mishra had been arrested from their clinic
situated at Village Suremanpur at around
4:00 a.m., i.e. before lodging the F.I.R. In
spite of that, the investigating officer did
not make any effort to recover hockey stick
and knife from the aforesaid appellants.
The motive attributed to all the appellants
in the FIR is enmity due to pending
criminal and civil cases regarding family
partition between the appellants and the
deceased
(Pratap
Shankar
Mishra).
Whereas, the appellant Mukesh Tiwari has
no concern with the family of the deceased.
PW-1 admitted this fact in her crossexamination by stating that there was no
case pending against Mukesh Tiwari in
respect to family partition. Thus, the
prosecution has failed to prove any motive
against Mukesh Tiwari. It was urged that
the trial court has not properly appreciated
the deposition of PW- 1 Smt. Manorama
Devi which is full of contradictions and
omissions and, therefore, the prosecution
has failed to prove the case against the
appellants beyond all reasonable doubts.
Hence, the impugned judgment is liable to
be set aside.

22. Per Contra; Learned A.G.A.
submitted that PW-1 Smt. Manorama Devi
and her cousin PW-2 Ajit Narayan Pathak
had recognized the appellants in the light of
the lantern as well as in full moonlight and
the accused persons were known to PW-1
and PW-2 even before the incident.
Although
there
is
some
discrepancy
between the statement of PW-1 and PW-2
with regard to the presence of PW-2 but
does
not
damage
the
core
of
the
prosecution case. In the present case,
though, the conviction of the appellants is
based upon the deposition of sole eyewitness PW-1 Smt. Manorama Devi but
there is no rule that there cannot be a
conviction by relying on the testimony of a
sole eye-witness. It is submitted that her
presence on the spot is natural as the
incident had taken place in her house and
near the place where she was sleeping. It is
further submitted that PW-1 is a reliable
and trustworthy witness. Moreover, the
presence of lantern burning at the place of
the incident at the time of occurrence has
been proved by eye-witnesses PW-1 and
PW-2. The F.I.R. was registered against the
appellants promptly (within 50 minutes of
the death) at 5:20 a.m.; learned Additional
Sessions Judge has rightly held the
appellants guilty; the findings recorded by
the trial court are on an appreciation of the
evidence, which is neither perverse nor
contrary to the evidence on record; that the
charges levelled against the appellants had
been proved beyond reasonable doubts.
Thus, their conviction and sentence do not
warrant any interference, the judgment of
the trial court is liable to be affirmed. A
prayer was, therefore, made to dismiss the
appeals.

23. Learned counsel for the informant
Sri S. K. Chaubey adopted the submissions
made by learned A.G.A.

ANALYSIS
OF
THE
PROSECUTION EVIDENCE:

24. Before we proceed to weigh the
respective submissions it would be apposite
to notice the arguments on behalf of the
appellants
in
detail.
The
appellants'
arguments are: Firstly; that at the time of
the incident, PW- 1 Smt. Manorama Devi
and PW-2 Ajit Narayan Pathak were
present at Village Shivpur which is around
12-14 Km away from the place of the
incident; that due to strained relations
3 All. Mukesh Tiwari Vs. State of U.P.
1007
between PW-1 Smt. Manorama Devi and
the deceased, PW-1, working as a Shiksha
Mitra, used to stay in her maternal home at
Village Shivpur. After the death of Pratap
Shankar Mishra, the police called her and
her relatives and thereafter the FIR of the
present
case
has
been
lodged
after
consultation and deliberation which is
clearly borne out from the fact that the FIR
was lodged, as alleged, after 3 hours 20
minutes of the incident, even though the
distance between the place of occurrence
and the Police Station is just 500 meters.
The delay in lodging the FIR assumes
significance and casts a complete shadow
of doubt on the prosecution case for the
reasons below:

(a) The delay in lodging the FIR
assumes importance because admittedly the
police had arrived at the scene of
occurrence and they took the injured,
Chitthi Majrubi was prepared at the police
station but FIR was not lodged, which
suggests that guess-work was going on to
lodge a named FIR.

(b) The delay suggests that it was
a blind murder. Through conjectures, all
persons against whom the deceased had
enmity were implicated. Two of them were
assigned ornamental roles, which finds no
corroboration from medical evidence as
neither there is any injury of hockey stick
nor of the knife, and the third is not related
to the other two and shared no common
motive with them therefore, why would he
join them.

(c) Gunshot was allegedly fired
from a point-blank range whilst two
accused persons held the deceased from
either side, which appears improbable
because no one would take the risk of
himself getting injured and, secondly, from
the spread of blackening and tattooing
around the wound to an extent of 10 inches,
firing from a point-blank range is ruled out.
Thus, no one actually witnessed the
incident and everything is based on
conjectures.

(d) There are two groups of
accused, who are totally unrelated to each
other. The appellant Mukesh Tiwari does
not appear to have any concern or
connection with the deceased or other
appellants. In spite of that, the prosecution
attributed the motive against him that he
committed the murder due to enmity of
family
partition.
The
motive
against
Mukesh Tiwari has been changed by the
prosecution.

(e) G.D.Report of the Chick FIR was
not available at the time of the inquest
proceedings.
(f) Conduct of PW-1, Smt. Manorama
Devi, also creates doubt, inasmuch as the
investigating officer stated that Manorama
Devi told him that the deceased had a land
dispute with Mahesh Tiwari and expressed
doubt that Mahesh Tiwari might be
involved in the incident.

(g) There is no evidence on
record whether the injured Pratap Shankar
Mishra was alive enroute to the hospital at
the time of preparation of Mazrubi Chitthi
(Paper no. 8Ka/1). The prosecution case is
totally silent on this account. But according
to PW-5 Dr. B. Narayan as well as Memo
(Ex.Ka.-5), Pratap Shankar Mishra was
brought dead at District Hospital at 3:50
a.m.

(h) PW-7 S.I. Hasmat Khan in his
cross-examination admitted his signature
on Mazrubi Chitthi but he stated that he
does not remember when and where the
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
Mazrubi Chitthi was prepared. He also
could not remember whether it was
prepared after or before the lodging of the
FIR. This Mazrubi Chitthi has not been
proved.

(i) The prosecution failed to
prove the dispatch time of the Special
Report however, PW-3 CP Deo Nath in his
cross-examination stated that the special
report has been sent at 7:10 a.m. on
30.7.2007.

Secondly; the prosecution case
wholly depends on the testimony of solitary
witness, PW-1 Smt. Manorama Devi. The
incident occurred in the night and nobody
witnessed the incident, which is borne out
from the contradictions/omissions present in
the testimony of PW-1 and PW-2. The ocular
version of PW-1 does not appear reliable and
does not inspire confidence in the prosecution
case. In support thereof, it has been pointed
out that:

(a) PW-2 Ajit Narayan has not
supported the prosecution case. In spite of
that, the prosecution has not examined Lalit
Narayan (real brother of PW-1), who was
sleeping along with PW-2 in the courtyard.

(b) There are contradictions with
regard to; the place where PW-2 Ajit
Narayan and Lalit Narayan slept in the house
of the deceased on the night of the incident;
the presence of PW-2 Ajit Narayan and Lalit
Narayan in the intervening night at the place
of the incident; the arrival of PW-4 CP
Kanhaiya Yadav and PW-7 S.I. Hasmat
Khan at the place of the occurrence, after the
incident, before lodging the FIR.

(c) There are contradictions in the
testimony of PW-1, PW-2, PW-4 with
regard to the place of the incident.

(d) There are omissions with
regard to the role of appellants Indrajit
Mishra and Sanjit Mishra.

(e)
There
is
material
inconsistency between the ocular and
medical evidence. More so, the prosecution
has failed to prove injury no. 3 and 4
received by the deceased.

(f) Behaviour (conduct) of
PW-1 Smt. Manorama Devi and PW-2 Ajit
Narayan Pathak after the incident cast a
shadow on their alleged presence at the
time of the incident.

Thirdly; false implication of the
appellants, Indrajit Mishra and Sanjit
Mishra, due to enmity on account of
property dispute is writ large as there
appears no injury of a hockey stick or of a
knife on the body of the deceased. The
motive against the appellant Mukesh
Tiwari as narrated in the FIR has not been
proved. The Prosecution has failed to prove
the motive against the appellant Mukesh
Tiwari.

Fourthly; the appellants Indrajit
Mishra and Sanjit Mishra were arrested by
the police at around 4:00 a.m. after the
incident from their clinic situated at Village
Suremanpur and were implicated due to
enmity.

25. At this stage, it would be useful
for us to notice the topography of the house
where the incident took place (as depicted
in the site-plan Ex.Ka-8). It appears from
the site plan that the house of the deceased
is north facing. In front of the main door of
his house is a 'Sahan' (front courtyard/open
place in front of house) thereafter, a
constructed road. There is a Shiv Temple in
the 'Sahan'. A gallery connects the 'Sahan'
and the courtyard (Angan/back courtyard),
which is an open place in the back portion
3 All. Mukesh Tiwari Vs. State of U.P.
1009
of the house. Adjacent to the gallery there
are two rooms. The doors of these rooms
open in the courtyard as well as in the
gallery. The incident took place in one of
the rooms, located on the western side of
the gallery. Two other rooms are situated
on the western side of the courtyard. The
southern boundary wall of the house is
made of bricks. This wall is five feet high.
On the eastern side of the house, there is an
open land of the deceased and on the
western side, there is the house of
appellants Indrajit Mishra and Sanjit
Mishra. On the southern side of the house,
there is a field belonging to the deceased.

26. Before we proceed to dwell upon
the merit of the contentions raised before
us, it will be apposite to have a close
scrutiny of the entire ocular evidence,
which is as follows:-

27. PW-1 Smt. Manorama Devi (wife
of the deceased) in her testimony has
deposed that the incident took place on the
intervening night of 29/30.7.2007. On the
night of the incident, she was sleeping next
to her husband in a room located on the
northern side of her house, of which the
exit door opens towards the south in the
courtyard (Angan), the door of the room
was half open; her brothers (PW-2 Ajit
Narayan and Lalit Narayan) who had come
to her house, were sleeping near the hand
pump in the courtyard (Angan) and her
mother-in-law, who is deaf and of unsound
mind, was sleeping towards the north in an
open terrace room. It was a full moon
night, at around 2:00 a.m. she heard some
sounds and woke up to see the appellants
with weapons in the light of the lantern,
which was lit at the door of the room. As
soon as Indrajit hit her husband with a
hockey stick, he woke up, stood up from
the cot and tried to escape towards the
courtyard (Angan), then Indrajit and Sanjit
caught hold of her husband and Mukesh
Tiwari shot at him from point-blank range
on his neck due to which her husband fell
on the ground. On hearing her cries and
gunshot, her brothers woke up and saw the
incident; they tried to catch them, but they
ran away by jumping over the south-eastern
corner of the boundary wall of the
courtyard. She had given the report to the
scribe at the police station, the case was
registered and he gave her its copy.

PW-1 Smt. Manorama Devi in
her cross-examination stated that Indrajit
Mishra and Sanjit Mishra were holding her
husband's waist from both sides, one was
holding from the back and the other was
holding from the side. At that time her
brothers were not awaking. Therefore, they
could not come to his rescue. She further
stated that Indrajit Mishra and Sanjit
Mishra caught her husband at the door of
the room and at the same time, Mukesh
Tiwari shot him from a point-blank range
on the right side of his neck. At that time
her brothers were still sleeping. They woke
up after hearing the gunshot and tried to
catch the appellants but by that time, they
fled away. She further stated regarding the
registration of the case that she did not
remember how long after the incident the
report was written.

It is noteworthy that PW-1, even
while witnessing her husband being caught
and shot by the appellants, neither
screamed nor cried for help. Her brothers
(PW-2 Ajit Narayan and Lalit Narayan)
woke up only after hearing the gunshot.

At this stage, it would be
appropriate to highlight that even Pratap
Shankar Mishra (deceased) did not make
any noise nor did he call his two brothers-
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
in-law for help, who were sleeping at a
distance of just 9-10 feet from the door of
the room in the courtyard (Angan). He also
did not call his mother (who was sleeping
in the adjacent open terrace room) and wife
for help. Pratap Shankar Mishra woke up
after receiving an injury from the hockey
stick, stood up from the cot and ran towards
the door of the room. He had enough time
and opportunity to call his wife, mother and
brothers-in-law for help.

Moreover, the most surprising
aspect is that there has been no scuffle
between the assailants and the deceased
before firing, and till the very last, the
deceased, his wife, and the assailants, did
not let out a single noise. This entire
situation seems to be extremely improbable
and impractical.

Even the post-mortem report
reveals no wound on the body of the
deceased by the hockey stick. Further, the
injury no. 1, wound of entry of firearm, was
present on the middle of neck 3 cm above
from Supra external notch whereas injury
no. 2, wound of exit, was present on right
side of the back of chest just below the
scapula bone, which suggests that shot
travelled from upper part of the body to the
lower part. Moreover, blackening, burning
and tattooing was found around injury no. 1
up to an area of 10 inches, which is
possible only if one fires from a short
distance and not from point-blank range.
The direction of the bullet travelling from
upper part to lower part rules out possibility
of two persons catching hold the victim.

After analysing all of the above
circumstances, it rounds off to the following
probabilities: firstly, PW-1 was not present in
the room at the time of the incident and did
not see its occurrence. Secondly, the incident
has not occurred in the manner as alleged by
the prosecution. Thirdly, the incident has
been a split second affair i.e. it occurred in an
extremely short period of time. Fourthly,
PW-2 Ajit Narayan and Lalit Narayan were
not sleeping in the courtyard at that time.
Fifthly, statement of PW-1 Smt. Manorama
Devi that she does not remember how long
after the incident the report was written casts
a serious dent to the credibility of the
prosecution case.

28. P W-2 Ajit Narayan (brother-in-law
of the deceased) in his statement in chief
stated that he went along with his cousin Lalit
Narayan, to meet their sister at her house.
They ate food at around eleven o'clock and
slept on a wooden plank in the courtyard
(Angan). His sister and brother-in-law were
sleeping in the room located in the northern
side of the house, the door of which opens
towards the south in the courtyard. At around
2:00 a.m., on hearing the cries and gunshot,
they woke up. They saw the appellants with
weapons and, his brother-in-law lying near
the door of the room. They tried to catch
them but they ran away by jumping over the
south-eastern boundary wall of the courtyard.

Though, in his cross-examination,
he stated that he did not see the shot being
fired and did not see the accused-appellants
jumping over the boundary wall.

After analysing the testimony of
PW-2, there are two possible situations
arising- firstly, PW-2 Ajit Narayan and
Lalit Narayan were not sleeping in the
courtyard that night and that is why they
did not see anything. Secondly, they were
planted
as
an
eye-witness
by
the
prosecution after due deliberation.

29. PW-3 CP 598 Deo Nath Singh
(scribe of FIR): According to him, he had
registered the FIR on the basis of a written
3 All. Mukesh Tiwari Vs. State of U.P.
1011
complaint of Manorama Devi at 5:20 a.m.
on 30.7.2007 as Crime No. 117 of 2007
under Section 302 IPC and endorsed in the
G. D. Report No. 4 at 5:20 a.m. He has
proved G.D. Report No. 15 timing 9:40
a.m. by which, S.I. Surendra Yadav and CP
337 Kanhayia Yadav, departed from the
police station for maintaining law and
order.

He stated in his cross-examination
that the Special Report of the present case has
been sent at 7:10 a.m. on 30.7.2007. After
considering the testimony of this witness, it
clearly shows that the despatch time of the
Special Report has not been proved by the
prosecution.

30. PW-4 CP Kanhaiya Yadav (who
reached at the spot after hearing gunshot and
noise, along with S.I. Surendra Yadav) has
deposed that he and S.I. Surendra Yadav
were on patrol duty. They heard the sound of
gunshot and noise at around 2:00 a.m. on the
night of 29/30.7.2007. They ran towards
Pratap Shankar Mishra's house from where
the sound came and saw his two relatives and
some villagers present there, his mother and
wife were crying. He immediately informed
the Station House Officer from his mobile
and asked for a vehicle from the police
station. They took the injured Pratap Shankar
Mishra with the help of his relatives and
villagers, firstly, to the police station Reoti by
TATA 407 vehicle and got a Mazrubi
Chitthi, then reached Sadar Hospital Ballia
and got him admitted.

PW-4
stated
in
his
crossexamination that the mother and wife of the
deceased were shouting and telling the
names of assailants.

After considering the testimony
of PW-4, the following inferences can be
drawn: (a) that mother and wife knew about
the assailants at the time of his arrival, (b)
mother of the deceased was not deaf and
dumb or of unsound mind, (c) he took the
injured with the help of his relatives first to
the police station and then to the hospital.

31. PW-5 Dr. B. Narayan (who
conducted the post-mortem) has deposed
that injury no. 1, wound of entry of firearm
was present on the middle of neck 3 cm
above from Supra external notch and injury
no. 2, wound of exit present on right side of
the back of chest just below the scapula
bone. At the time of post-mortem, semidigested food was present in the stomach.
He also found one abrasion just below the
beard and another abrasion over the chin,
anterior aspect, as injury nos. 3 & 4
respectively.

PW-5
stated
in
his
crossexamination that injury no. 1 can possibly
be caused from a distance of 10- 12 feet by
a standard gun. The time and date of death
of the deceased were not mentioned in
Form No.-13. On the basis of ante-mortem
injuries, the death might have also been
possible on 29.7.2007 between 8 - 9 p.m.

32. PW-7 S.I. Hasmat Khan (Station
House Officer/I.O.): According to him, the
FIR was registered in his presence. He
inspected the place of occurrence at the
instance of Smt. Manorama Devi and
prepared a site plan. He took blood-stained
and plain earth from the place of incident in
presence of Pramod Kumar Upadhyay and
Sanjeev Kumar Upadhyay and prepared a
memo. He arrested the appellants, Indrajit
Mishra and Sanjit Mishra. Further, he
arrested Mukesh Tiwari on 4.8.2007 and
recovered a Katta at his instance. After
completing the investigation, he submitted
the charge sheet against the appellants.
1012 INDIAN LAW REPORTS ALLAHABAD SERIES

PW-7 in his cross-examination
stated that he arrested Indrajit Mishra and
Sanjit Mishra near the Suremanpur Railway
Station around 6 o'clock in the evening.
Manorama Devi told him in her statement
that her brothers, Udit Narayan and Ajit
Narayan were present at the place of the
incident in the night and saw the
occurrence. She, though, did not tell him
that Lalit Narayan was present at the time
of the incident. He reached the spot within
30
minutes
after
the
incident.
On
questioning Manorama Devi, he got the
names of the assailants from her while she
was crying and he also orally enquired
about the incident from the people present
there. After that, he returned back to the
Police Station. During the course of the
investigation, no such fact came to his
knowledge that Mukesh Tiwari had any
land dispute with the deceased. He further
stated that Manorama Devi told him that
the deceased had a land dispute with
Mahesh Tiwari and expressed doubt that
Mahesh Tiwari might be involved in the
incident.

After considering the evidence of
PW-7, it is observed that; (a) he reached the
place of occurrence within 30 minutes of
the incident, (b) Manorama Devi told him
that her brothers, Udit Narayan and Ajit
Narayan were present at the time and place
of the incident and saw the occurrence, (c)
she knew the names of the assailants,
though she suspected the involvement of
Mahesh Tiwari in the murder of Pratap
Shankar Mishra, (d) the motive against
Mukesh Tiwari could not be established.

33.

PW-8
S.I.
Hari
Prasad
Vishwakarma (who prepared the inquest
report): According to him, he was posted at
Police Chowki Satni Sarai, PS. Kotwali
Ballia on 30.7.2007 as Chowki Incharge.
On the same day at 11:30 a.m., he
commenced the inquest proceedings at the
Mortuary of District Hospital Ballia on the
basis of G. D. Report No. 4 timing 4:30
a.m. (PS- Kotwali). This G. D. Report has
been prepared on the basis of a Memo
which has been filed in PS - Kotwali Ballia
by CP 337 Kanhayia Yadav.

In
his
cross-examination,
he
stated that he did not get any G.D. Report
of Chick FIR at the time of preparing the
inquest report and that he had mentioned
the cause of death in the inquest report on
the basis of FIR.

Through the above consideration,
it can be observed that till the time of
conducting the inquest (i.e. 11:30 a.m. on
30.7.2007), G.D. Report of Chick FIR had
not been endorsed in the General Diary of
the Police Station Raoti.

34. Having noticed the contentions of
learned counsel for the parties and having
taken a glimpse of the evidence on record,
now we shall weigh the argument of
learned counsel for the appellants that the
FIR of the present case was lodged after an
unexplained delay of 3 hours 20 minutes of
the incident because of consultation, guesswork and deliberation.

35. Noticeably, as per the prosecution
case, the Police were present at the doorstep, immediately after the incident, the
police arranged a vehicle, a Mazrubi
Chitthi was prepared at the Police Station
yet, PW-1 Smt. Manorama Devi and PW-2
Ajit Narayan who claim themselves as eyewitnesses of the incident chose not to
immediately lodge the report. The wife and
mother of the deceased were naming the
assailants before PW-4 CP Kanhaiya
Yadav and PW-7 S.I. Hasmat Khan on the
3 All. Mukesh Tiwari Vs. State of U.P.
1013
spot but they did not disclose their names
to the police and the FIR has not been
lodged promptly, because either PW-1 and
PW-2 were not present at the time of the
incident or they did not witness it and were,
therefore, deliberating to name the accused
merely on conjecture.

36. It would be useful to notice the
law with regard to the importance of
prompt lodging of FIR. In Meharaj Singh
& Ors. v. State of U. P. & Ors, (1994) 5
SCC 188 the Supreme Court has observed:
(SCC p. 195-96, para 12)

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eye
witnesses, if any. Delay in lodging the FIR
often results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR, was lodged
at the time it is alleged to have been
recorded, the courts generally look for
certain external checks. One of the checks
is the receipt of the copy of the FIR, called
a special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at
the time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even
though the inquest report, prepared under
Section 174 Cr. P.C. is aimed at serving a
statutory function, to lend credence to the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in embryo state and had not
been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante timed to give it the colour of a
promptly lodged FIR..."

37. In Thulia Kali v. The State of
Tamil Nadu, (1972) 3 SCC 393, the
Supreme Court, emphasising the necessity
of explaining the delay in lodging FIR, has
held as follows: (SCC p. 397, para 12)

"12... First Information Report in
a criminal case is an extremely vital and
valuable piece of evidence for the purpose
of corroborating the oral evidence adduced
at the trial. The importance of the above
report can hardly be overestimated from
the standpoint of the accused. The object of
insisting upon prompt lodging of the report
to the police in respect of commission of an
offence is to obtain early information
regarding the circumstances in which the
crime was committed, the names of the
actual culprits and the part played by them
as well as the names of eye witnesses
present at the scene of occurrence. Delay
in lodging the First Information Report
quite often results in embellishment which
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
is a creature of afterthought. On account of
delay the report not only gets bereft of the
advantage of spontaneity danger creeps in
of the introduction of coloured version,
exaggerated account or concocted story as
a result of deliberation and consultation. It
is, therefore, essential that the delay in the
lodging of the first information report
should be satisfacorily explained...."

38. In Satpal Singh v. State of
Haryana, (2010) 8 SCC 714 the Supreme
Court has observed: (SCC p. 720, para 15)

"15. This Court has consistently
highlighted the reasons, objects and means
of prompt lodging of FIR. Delay in lodging
FIR more often than not, results in
embellishment and exaggeration, which is
a creature of an afterthought. A delayed
report not only gets bereft of the advantage
of
spontaneity,
the
danger
of
the
introduction of a coloured version, an
exaggerated account of the incident or a
concocted story as a result of deliberations
and consultation, also creeps in, casting a
serious doubt on its veracity. Thus, FIR is
to be filed more promptly and if there is
any delay, the prosecution must furnish a
satisfactory explanation for the same of the
reason that in case the substratum of the
evidence
given
by
the
complainant/informant is found to be
unreliable, the prosecution case has to be
rejected in its entirety. [Vide: State of
Andhra Pradesh v. M. Madhusudhan Rao
(2008) 15 SCC 582]

39. It is well-settled position of law
that delay in lodging the FIR does not
make prosecution case improbable when
such delay is properly explained, but a
deliberate delay in lodging the FIR may
prove fatal. In cases where there is a
delay in lodging the FIR, the court has to
look for a plausible explanation for such
delay.

40. According to the prosecution
case, PW-4 CP Kanhaiya Yadav and S.I.
Surendra Yadav upon hearing the gunshot
and noise immediately arrived at the spot
where PW-1, PW-2, Lalit Narayan and
the mother of the deceased were present.
According to PW-4, he immediately
informed the SHO (PW-7) from his
mobile and asked for a vehicle from the
Police Station. Thereafter, PW-4, two
relatives of the deceased and some
villagers took the injured, first, to the
police station Reoti by TATA 407 vehicle
and got a Mazrubi Chitthi, then reached
Sadar Hospital Ballia and got him
admitted. PW-4 stated in his crossexamination that the mother and wife of
the deceased were shouting and telling
names of the assailants. According to
PW-7 S.I. Hasmat Khan, as stated in his
cross-examination, he reached the spot
within 30 minutes of the incident. Upon
enquiring Manorama Devi, she disclosed
to him the names of the assailants while
crying.

41. From the prosecution case itself as
noticed above, it can be logically inferred
that, firstly, PW-1 (wife of the deceased),
PW-2 Ajit Narayan and Lalit Narayan
(brothers-in-law) including the mother of
the deceased knew the name of the
assailants and PW-4 CP- Kanhaiya Yadav,
S.I. Surendra Kumar Yadav and PW-7 S.I.
Hasmat Khan (I.O.) also came to know the
name of the assailants through the mother
and wife of the deceased. Secondly, the
police arrived at the place of occurrence
immediately after the incident and arranged
a vehicle for taking the injured to the
hospital for medical assistance. Thirdly, the
injured kept lying on the spot until the
3 All. Mukesh Tiwari Vs. State of U.P.
1015
vehicle was arranged, which must have
taken some time. Fourthly, the said eyewitnesses (PW-2 and Lalit Narayan) were
present at the police station before they
reached the hospital. Fifthly, the mother of
the deceased does not seem to be of
unsound mind since as soon as she
witnessed the incident, she shouted and
took names of the assailants, this conduct
of her is the sign of a person whose
cognitive responses are intact.

42. But despite all that the FIR was
not lodged till return of information from
the hospital. In fact, the FIR was lodged
after about lapse of 50 minutes from the
return of PW-2 Ajit Narayan from the
hospital via police station at 4:30 a.m.
Thus, the FIR was lodged with a delay of 3
hours
20
minutes.
The
prosecution
explained the delay by stating that PW-2
Ajit Narayan did not know the whole
incident, therefore his sister (PW-1) lodged
the FIR. Whereas, PW-2 Ajit Narayan
claimed in his examination-in-chief that he
witnessed the incident and identified the
assailants. PW-1 Smt. Manorama Devi also
supported his version and stated the same
in her examination-in-chief. We are of the
opinion that the explanation put forth by
the prosecution is not satisfactory because
PW-1 and PW-2 had sufficient time and
opportunity to lodge the FIR promptly.

43. In addition to the above, there are
other circumstances also which generate a
doubt regarding the time of lodging of FIR,
these are; firstly, PW-1 does not remember
how long after the incident the report was
lodged, secondly, the inquest report was
prepared on 30.7.2007 at 11:30 a.m.
without receiving the copy of the G.D.
Report of the Chick FIR, as PW-8 S.I. Hari
Prasad Vishwakarma conducted the inquest
on the basis of Memo (Ex.Ka.-5); he stated
that he had not received the copy of Chick
FIR, thirdly, the prosecution did not prove
the dispatch time of the Special Report,
fourthly, the prosecution also did not prove
the Mazrubi Chitthi (Paper no. 8Ka/1).

44. A conspectus of the evidence
noticed above indicates that the FIR in the
present
case
was
lodged
with
an
'unreasonable delay' and after deliberation.
Normally,
a
delay
of
few
hours,
particularly in night incidents, might not be
considered significant but here the police
were at the doorstep of the informant and
the injured (Pratap Shankar Mishra) was
carried to the hospital by the police, with
Mazrubi Chitthi, and a so-called witness,
who was there at the place of incident and
happens to be the brother of the eyewitness, yet prompt reporting of the
incident was withheld, which suggests that
either the incident was not witnessed or if
witnessed, the identity of the assailant was
not certain, therefore, the guess-work
delayed the FIR.

45 . Now we shall deal with the
motive behind the incident. It was argued
that the prosecution failed to establish
presence of motive for the crime against
Mukesh Tiwari.

46. It would be useful to notice the
law with regard to the role of motive in
assessing the credibility of the prosecution
case. In Darbara Singh v. State of Punjab
(2012) 10 SCC 476, the Supreme Court has
observed as under: (SCC, p. 482, para 16)

"16. Motive in criminal cases
based solely on the positive, clear, cogent
and reliable ocular testimony of witnesses
is not at all relevant. In such a fact
situation, the mere absence of a strong
motive to commit the crime, cannot be of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
any assistance to the accused. The motive
behind a crime is a relevant fact regarding
which evidence may be led. The absence
of motive is also a circumstnce which may
be relevant for assessing evidence." (Vide:
Gurcharan Singh v. State of Punjab, AIR
1956 SC 460, Rajinder Kumar & Anr. v.
State of Punjab, AIR 1966 SC 1322, Datar
Singh v. State of Punjab, AIR 1974 SC
1193 and Rajesh Govind Jagesha v. State
of Maharashtra, (1999) 8 SCC 428)

47. In The State of U. P. v. Hari
Prasad & Ors., (1974) 3 SCC 673, the
Supreme Court observed as under: (SCC, p.
674, para, 2)

"2. ..This is not to say that even if
the witnesses are truthful, the prosecution
must fail for the reason that the motive of
the crime is difficult to find. For the matter
of that, it is never incumbent on the
prosecution to prove the motive for the
crime. And often times, a motive is
indicated to heighten the probability that
the offence was committed by the person
who was impelled by that motive. But, if the
crime is alleged to have been committed for
a particular motive, it is relevant to inquire
whether the pattern of the crime fits in with
the alleged motive..."

48. It is trite law that even though the
existence of motive loses significance when
there is reliable ocular account but where
the ocular testimony appears to be suspect
the existence or absence of motive acquires
some significance regarding the probability
of the prosecution case. [vide Badam
Singh v. State of M. P., (2003) 12 SCC
792]

49. In the present case, PW-1 Smt.
Manorama Devi stated in her cross
examination that her husband's land was
situated on the Kachchi road leading to
Sahatwar. Ram Pravesh Tiwari and his son
Mukesh Tiwari wanted to buy this land.
Her husband had sold this land to Arjun
Pal. For this reason, Mukesh Tiwari was
annoyed. Her husband had told her that
Mukesh Tiwari has threatened him. The
prosecution, however, has not proved as to
when the deceased executed sale-deed in
favour of Arjun Pal and no evidence has
been offered as to when the deceased was
threatened.

50. It is an admitted fact that Dina
Nath (father of the deceased) had instituted
a suit under section 229-B of U. P. Z. A. &
L. R. Act, against Suresh Dutt, Ramesh
Dutt, Govind Dutt, Indrajit and Sanjit,
which he had won. Against this judgment,
Suresh Dutt and 4 others had filed a case
before the Commissioner, Azamgarh. In
connection with that dispute, a Police
Challani case under section
151/107
Cr.P.C.