# Muluwa & Anr v. State of U.P

- **Citation:** (2020) 8 ILRA 519
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-06
- **Case number:** Criminal Appeal No. 79 of 1991
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/muluwa-anr-v-state-of-u-p-46058
- **Pages:** 8

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 307/34.- Appeal against
conviction.

Delay in lodging F.I.R.-
Delay in lodging the FIR cannot be
ground to doubt the prosecution case.

Relative witness -
Relationship is not a factor to affect
the credibility of the witnesses. (Para - 17)

Minor contradiction -
Can be ignored if does not affect the
core of prosecution version.

The entire prosecution evidence, the
oral evidence of injured witness is not
corroborated with medical report. So the
evidence adduced by these witnesses are not
cogent and reliable and also does not inspire
confidence. (Para - 21)

Benefit of doubt-
The witnesses and circumstances
considered together raised strong suspicion
about the occurrence and involvement of
accused. (Para 21)

The appeal is allowed. (E-2)
List of cases cited:-

## Text

8 All. Muluwa & Anr. Vs. State of U.P.
519
(2020)08ILR A519
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 79 of 1991

Muluwa & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K.Srivastava, Sri Vijay Bahadur
Shivhare.

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 307/34.- Appeal against
conviction.

Delay in lodging F.I.R.-
Delay in lodging the FIR cannot be
ground to doubt the prosecution case.

Relative witness -
Relationship is not a factor to affect
the credibility of the witnesses. (Para - 17)

Minor contradiction -
Can be ignored if does not affect the
core of prosecution version.

The entire prosecution evidence, the
oral evidence of injured witness is not
corroborated with medical report. So the
evidence adduced by these witnesses are not
cogent and reliable and also does not inspire
confidence. (Para - 21)

Benefit of doubt-
The witnesses and circumstances
considered together raised strong suspicion
about the occurrence and involvement of
accused. (Para 21)

The appeal is allowed. (E-2)
List of cases cited:-

1. Tara Singh & ors. Vs St. of Punj., AIR 1991
SC 63.

2. Nagappan Vs State (by Inspector of Police,
Tamil Nadu), (2014) 3 SCC (Cri) 660.

3. Sheesh Ram & ors. Vs St. of Raj., (2014) 3
SCC 689.

4. Gopal Singh Vs St. of U.P., (1978) 3 SCC
327.

5. Ramesh Harijan Vs St. of U.P., (2012) 5
SCC 777.

(Delivered by Hon'ble Suresh Kumar Gupta, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated
18.1.1991
passed
by
IIIrd
Additional Sessions Judge, Hamirpur,
District Hamirpur in Sessions Trial No.
31 of 1990, convicting the appellants
under
section
307/34
I.P.C.
and
sentenced them to 3 years rigorous
imprisonment.

2. Brief facts of this case are as
follows-:

The complainant / Ghasita,
lodged an F.I.R. Ex. Ka-1 alleging that
he is resident of village Subasa, Police
Station Lalpura, District Hamirpur and
on 24.11.1989 at 4.30 P.M. complainant
was returning to his home after casting
his vote on the way, when he reached
near house of Gangadeen Kumhar,
accused, Bhagwan Deen s/o Kartarey
Singh and Ram Bahadur Singh, having
ballam, Shiv Bahadur Singh was holding
gun, Raj Bahadur Singh s/o Sri Bhagwan
Deen Singh was holding lathi. Buddan
Singh, Muluwa and Gopi Chand were
also armed with lathi. Since the aforesaid
520 INDIAN LAW REPORTS ALLAHABAD SERIES
person consider enmity with complainant
on exhortation of accused Bhagwan Deen
Singh, Shiv Bahadur Singh opened fire
on complainant with intention to kill the
complainant, when complainant raised
alarm, witness Sughar Singh, Kallu
Singh and Nathu Singh rushed towards
the spot and rescued Ghasita. Accused
persons were fled outside the village. The
F.I.R. was registered against Bhagwan
Deen, Buddan Singh, Ram Bahadur, Shiv
Bahadur Singh, Raj Bahadur Singh,
Muluwa and Gopi Chand under section
307/34 I.P.C. at 9.00 P.M. on same day.
After registration of F.I.R. investigation
of this case was handed over to Sub
Inspector K.M. Sinha (PW-4). On
3.12.1989, IO received injury report of
injured Ghasita and recorded statement
of injured Ghasita and on pointing out of
Ghasita prepared site plan which is
proved as Ex. Ka-5. After recording
evidence of other witnesses charge-sheet
filed by Investigating Officer only
against accused Muluwa and Gopi Chand
under section 307 I.P.C. and other named
five co-accused Bhagwan Deen Singh,
Ram Bahadur Singh, Shiv Bahadur
Singh, Raj Bahadur Singh, Baddan Singh
was
exonerated
by
prosecution.
Chargesheet was submitted before the
Magistrate on 29.1.1990 and Magistrate
has taken cognizance and committed the
case to sessions court where it is
registered as S.T. No. 31 of 1990 and
thereafter, it was transferred to IIIrd
Additional Sessions Judge, Hamirpur
where the appellants face trial.

3. Learned A.S.J. Hamirpur framed
charge against the appellants under
section 307 I.P.C. read with 34 I.P.C.
The charge read over to the appellants
and appellants denied the charge and
claimed to be tried. In order to
substantiate charge levelled against the
appellants, prosecution examined PW-1 /
Ghasita as complainant and injured
witness, who proved F.I.R. as Ex. Ka-1.
PW-2 / Km. Ranno, examined as eyewitness of incident. PW-3 / Dr. Satya
Prakash, examined the injured witnesses,
who proved the injury report of Ghasita
as Ex. Ka-2 and injury report of scriber
Bhura Singh as Ex. Ka-3. PW-4 / K.M.
Sinha, Investigation Officer of this case,
who proved site plan as Ex. Ka-5 and
charge-sheet as Ex. Ka-6. He also proved
by means of secondary evidence Chick
F.I.R. as Ex. Ka-7 and G.D. Entry as Ex.
Ka-8. PW-5 / Bhura Singh, who is
scriber of written report also supported
Ex. Ka-1.

4. PW-3, Dr. Satya Prakash
examined the injured Ghasita and during
examination following injuries were
found on the body of injured Ghasita:-

1.Multiple fire arm injury on
back of chest, neck and back of skull .
Size of each wound 0.2 cm X 0.2 cm.
Depth not taken. No blackening no
talloing seen.

2. Contusion 2 cm X 3 cm on
right thumb.

3. Face is flushed, smell of
alcohol present in expesole air. Gout
speed normal, orientation of time and
place is present.

4. Result:- Injury no. 1 caused
by fire arm and injury no. 2 caused by
blunt object. Injury no. 1 kept under
observation advise X-ray Injury no. 2 is
simple in nature.

Duration is fresh. Patient has
consumed alcohol at present is not in
state of intoxication. He proved injury
report of Ghasita as Ex, Ka-2.
8 All. Muluwa & Anr. Vs. State of U.P.
521

He further stated that on
24.11.1989 at 11.30 he also examined
injured Bhura Singh and following
injuries were found:-

1. Contusion 3X2 cm on back of
left fore arm.

2.Abrasion contusion 2X1/2 cm
on backside of left fore arm.

3. Linear abrasion 3 cm on
back of left arm.

4. Contusion 6 X 2 cm on
forehead 2 cm above left eye-brow.

5. Smell of alcohol present in
empty air.

Injury no. 1, 2 & 3 are simple
in nature and injury no. 4 kept under
observation advise X-ray.

Injury no. 1, 2 & 4 caused by
blunt object and injury no. 3 caused by
friction. Duration fresh.

Patient has consumed alcohol
but he is at present conscious. He proved
the injury report of Bhura Singh as Ex.
Ka-3.

5. This witness also prepared x-ray
report and on the basis of x-ray plate, he
proved multiple radiopaque shadow of
metallic density pellet seen in skull, two
radiopaque shadow of metallic density pellet
seen in neck and three radiopaque shadow of
metallic density pellet seen in chest. This
witness proved x-ray report as Ex. Ka-4.

6. I have heard Sri S.K. Srivastava,
learned counsel for the appellants and the
learned A.G.A.

7. I n this case prosecution produced
PW-1 / Ghasita, as an injured witness as
well as main star witness of this case. He
deposed in his statement that on
3.12.1990 an incident occurred one years
ago from today. At that time M.L.A.
Elections were going on and after casting
his vote he was returning to his village
and when he reached near Ganga Deen
Kumhar's house, he saw Muluwa and
Gopi Chand were sitting near their house
having country made pistol and after
looking Ghasita both fired at him with
country-made pistol. Due to which
Ghasita become unconscious and fell
down on the ground. On hearing noise
Km. Ranno and Dharam Singh reached at
the spot and witnesses the occurrence.
Thereafter Kallu Singh and Sughar Singh
also rushed to the spot and saw the
incident and taken Ghasita to the Police
Station in unconscious state and a written
report scribed by Bhura Singh (PW-5)
and PW-1 put his signature on written
report. Ghasita further stated that he told
Bhura Singh that only name of Gopi
Chand and Muluwa be incorporated in
the written report but name of other
accused were incorporated by scriber
Bhura Singh. He only put his signature
on the written report, which is proved by
him as Ex. Ka-1 and further stated that
afterward he filed an affidavit before the
court in which he clearly stated that only
Muluwa and Gopi Chand were accused
in this case. He further stated that there
was old enmity regarding construction of
his house between the appellants and
PW-1.

8. PW-2 / Km. Ranno, an eyewitness, although he is not named in the
F.I.R. as an eye-witness, stated in her
statement that Ghasita is her cousin and
at 4.30 P.M. and she was sitting at her
522 INDIAN LAW REPORTS ALLAHABAD SERIES
Chabutra, saw that Gopi Chand and
Muluwa were armed with country made
pistol open fire upon Ghasita and due to
this Ghasita got injury on his back side
and chest. This occurrence witnessed by
Dhammu Singh.

9. PW-3 / Dr. Satya Prakash, who
has medically examined injured Ghasita
and Bhura Singh. As per prosecution
version Bhura Singh is neither an injured
nor an eye-witness in this case and it is
also not clear that in what circumstances
and how Bhura Singh had got injury on
his body. This witness proved injury
report of Ghasita as Ex. Ka-2 and injury
report of Bhura Singh as Ex. Ka-3 and he
also proved X-ray plate Ex. M-1 & M-2
and X-ray plates depicts several metallic
pellets in the head, throat and chest of
Ghasita and proved as Ex. Ka-4

10. PW-4 / IO / K.N. Sinha, S.O.
Police Station Lulpura had investigated this
case. He stated in his statement that on
25.11.1989 after registration of case and
after making G.D. entry he reached at the
spot but complainant was not present there.
After getting injury report on 3.12.1989 he
recorded statement of injured, Ghasita, and
prepared site plan on pointing of Ghasita
and same is proved by I.O. as Ex. Ka-5.
That
on 9.12.1989
after
conducting
formalities of investigation, I.O. Submitted
charge-sheet against Muluwa and Gopi
Chand and proved the charge-sheet as Ex.
Ka-6. He further stated in his statement that
a Chick F.I.R. was lodged by Rajvant
Singh, Head Muharrir, who was posted
with him at that time, thus, he proved
Chick F.I.R. as Ex. Ka-7 and G.D. Entry as
Ex. Ka-8.

11. PW-5 / Bhura Singh, who is the
inscriber of written report Ex. Ka-1,
stated in his statement that after lodging
F.I.R. he alongwith Ghasita and Homeguard were going to Hamirpur for
examination of injury by tempo then an
accident occurred between tempo and
jeep in which home-guard as well as he
himself sustained injuries. He further
stated that name of Bhagwan Deen
Singh, Ram Bahadur, Shiv Bahadur, Raj
Bahadur
and
Buddan
Singh
were
incorporated as stated by complainant on
his oral dictation but during investigation
without assigning any reason police party
exonerated the above named accused so
statement of PW-5 is of no use.

12. Learned Counsel for the
appellants submitted that lower court
without appreciating true facts and
evidence
wrongly
convicted
the
appellants and further submitted that
there are several contradictions between
the statements of injured. It is also
submitted that as per version of F.I.R.,
Muluwa and Gopi Chand were armed
with lathi only but during examinationin-chief, they have completely turned
their version and stated that both were
armed with gun. Since only gun shot
injury was found on the body of inured
so it is not clear now in what
circumstances he got fire arm injury. He
next submitted that at the time of
examination of Ghasita, he was under
influence of alcohol, so this possibility
could not be ruled out that Ghasita have
got injury in any manner elsewhere.

13. Learned counsel for the
appellants further submitted that as per
version of F.I.R. exhortation was done by
Bhagwan Deen Singh. But as per
statement of Ghasita name of Bhagwan
Deen Singh was not disclosed by him
regarding
exhortation.
He
further
8 All. Muluwa & Anr. Vs. State of U.P.
523
submitted that Sughar Singh, Kallu and
Balram Singh were named witnesses in
the F.I.R. but none of them were
examined
by
prosecution
but
Investigating Officer cited Dharam Singh
and Km. Ranno as eye-witnesses of the
case. Prosecution examined Km. Ranno
as PW-2, who is a child witness and
cousin of injured. He further submitted
that Km. Ranno is related and tutored
witness. Hence, no reliance can be placed
on her testimony. It is next contended
that as per version of F.I.R. both
appellants were armed with lathi but as
per statement recorded in the court
during trial both the appellants were
armed with country made pistol. PW-1
stated in his statement that both of them
fired upon him but only one fire arm
injury found on the body of PW-1 during
medical examination. Injury no. 2 of PW1 caused by hard and blunt object but
prosecution has failed to explain how
injured has sustained this injury. PW-1
stated that one side injury inflicted on
front side at a distance of 15 pace but on
perusal of injury report one gun shot
injury found on back side of injured,
which shows that injured was not able to
see
assailant
and
appellants
were
wrongly implicated in this case due to
enmity.

Learned
counsel
further
submitted that prosecution witness Bhura
Singh stated in his statement that there is
an old enmity between the Ghasita and
the appellants as one case related to set
the house on fire and another is breaking
of house. It is also submitted that incident
was about 4.30 P.M. and F.I.R. was
lodged at 9.10 P.M. and there is no
explanation regarding delay in lodging
the F.I.R. It is also submitted that
prosecution has miserably failed to
establish place of occurrence. No blood
stain lifted by the Investigating Officer
from
place
of
occurrence.
No
independent witness produced by the
prosecution. Neither time nor place of
occurrence
were
proved
beyond
reasonable doubt. So all the evidence
adduced by prosecution is not cogent and
reliable and also not inspired the
confidence so conviction recorded by
learned trial court is frivolous and against
established principle of law, hence appeal
is liable to be allowed.

14. Learned A.G.A. submitted that
there is cogent and credible evidence
present before the court. Oral evidence of
injured is supported with the statement of
PW-2, eye-witness, and ocular version of
PW-1 is supported to the injury. He
further submitted that there is minor
contradiction in the statement of injured
witness, so the evidence cannot be
disbelieved. Minor discrepancies do not
corrode the credibility of prosecution
case.

15. On perusal of evidence of PW-1
& PW-2 it is clear that statements are not
corroborating with each other on material
particulars. It appears that Sessions Court
has
unmindfully
given
greater
importance to evidence of PW-1 & PW-2
without looking into version of their
statements. If credence is given to the
statement
of
PW-1,
genesis
and
genuineness of F.I.R. is undoubtedly
questionable.

16. One of the argument of learned
counsel for appellants is that occurrence
has taken place on 24.11.1989 at about
4.30 P.M. and F.I.R. was lodged at about
9.00 P.M. on same day. There are many
factors which have to be taken into
524 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration while looking into factum
of delay in criminal cases. It is true that
court has duty to take notice of delay and
examined the same in a back draft of a
factual score whether there is any
expectable explanation offered by the
prosecution
but
when
delay
is
satisfactorily
explained
no
adverse
inference is to be drawn. It is to be seen
whether there has been possibility of
embellishment in the prosecution version
on account of such delay.

In this connection it will be
useful to take note of the following
observation made by Apex Court in Tara
Singh & Ors. v. State of Punjab, AIR
1991 SC 63 :

"The delay in giving the FIR
by itself cannot be a ground to doubt the
prosecution case. Knowing the Indian
conditions as they are, one cannot
expect these villagers to rush to the
police station immediately after the
occurrence. Human nature as it is, the
kith and kin who have witnessed the
occurrence cannot be expected to act
mechanically with all the promptitude in
giving the report to the police. At times
being grief-stricken because of the
calamity it may not immediately occur to
them that they should give a report.
After all it is but natural in these
circumstances for them to take some
time to go the police station for giving
the report. Of course, in cases arising
out of acute factions there is a tendency
to implicate persons belonging to the
opposite faction falsely. In order to avert
the danger of convicting such innocent
persons the Courts should be cautious to
scrutinize
the
evidence
of
such
interested witnesses with greater care
and caution and separate grain from the
chaff after subjecting the evidence to a
closer scrutiny and in doing so the
contents of the FIR also will have to be
scrutinised carefully. However, unless
there are indications of fabrication, the
Court cannot reject the prosecution
version as given in the FIR and later
substantiated by the evidence merely on
the ground of delay. These are all
matters for appreciation and much
depends on the facts and circumstances
of each case."

Thus delay in lodging F.I.R.
has
been
very
satisfactorily
and
reasonably explained which has also
been discussed by trial court and in this
case delay is not at all fatal for
prosecution case.

17. So far as the second argument is
concerned that PW-2, Km. Ranno is
related
witness
examined
by
the
prosecution.
No
other
independent
witness is produced so no reliance can be
placed in the statement of interested and
related witnesses.

In Nagappan v. State (by
Inspector of Police, Tamil
Nadu)
reported in (2014) 3 SCC (Cri) 660
Hon'ble the Apex Court in paragraph no.
10 has observed as under :-

"10. As regards the first
contention about the admissibility of the
evidence of PW 1 and PW 2 being
closely related to each other and the
deceased, first of all, there is no bar in
considering the evidence of relatives. It
is true that in the case on hand, other
witnesses turned hostile and have not
supported the case of the prosecution.
The prosecution heavily relied on the
evidence of PW 1 & PW 2. The trial
8 All. Muluwa & Anr. Vs. State of U.P.
525
court and the High Court, in view of
their relationship, closely analysed their
statements and ultimately found that
their evidence is clear, cogent and
without considerable contradiction as
claimed by their counsel. This Court, in
a series of decisions, has held that
where the evidence of "interested
witnesses"
is
consistent
and
duly
corroborated by medical evidence, it is
not possible to discard the same merely
on the ground that they were interested
witnesses. In other words, relationship
is not a factor to affect the credibility of
a witness. " (emphasis added)

In Sheesh Ram and others v.
State of Rajasthan reported in (2014) 3
SCC 689 Hon'ble the Apex Court in
paragraph no. 10 has observed as under:-

"10. It is submitted that all
these witnesses are related and therefore
their evidence cannot be relied upon.
Assuming they are related to each other
and, hence, interested witnesses, it is well
settled that the evidence of interested
witnesses is not always suspect. It has to
be scrutinized with caution and can be
accepted if it is found reliable."

Hence, statement of a relative
or interested witness could not be thrown
out only on the ground that the witness is
relative or interested witness, rather, such
statement is to be scrutinized with
caution.

Hon'ble the Apex Court in
Gopal Singh Vs. State of U.P. reported
in (1978) 3 SCC 327 has observed in
paragraph no. 11 as under:-

"11. True, they were interested
witnesses, related to the deceased. Far
from undermining the circumstances of
the case, it guaranteed the truth of their
testimony. Being relations, they would
be the least disposed to falsely implicate
the appellant, or substitute him in place
of the real culprit. In short, the murder
charges had been proved to the hilt
against the appellant."

As the law propounded by apex
court statement of relatives and interested
witnesses could not be thrown out only
on the ground that witnesses are
relatives. Rather such statement of the
witnesses is to be scrutinized with
caution. It is made clear that related or
interested witnesses will never like to
save the real culprit and falsely implicate
some other innocent person. In this case
alleged occurrence has taken place near
the house of the deceased and presence
of these witnesses are quite natural.
Hence, no adverse inference can be
drawn that witnesses are related and
interested witnesses. In the backdrop of
the legal situation now it is to be seen as
to whether the prosecution has been
succeed to prove the charges against the
accused.

18. On perusal of statement of PW2 / Km. Ranno is not cited as an eyewitness in the F.I.R. During investigation
statement of PW-2 is recorded by
Investigating Officer as an eye-witness.
She deposed in her testimony that she
saw the occurrence and she clearly
deposed that both accused/ appellants,
Muluwa and Gopi Chand, were armed
with gun and both of them inflicted gun
shot injury to Ghasita on his head, back
and chest. But perusal of medical report
shows that only one gun shot injury
found on the back of chest and on the
back of skull of Ghasita. No such injury
526 INDIAN LAW REPORTS ALLAHABAD SERIES
inflicted on the chest of Ghasita. She
clearly deposes that no stick injury was
found on the body of Ghasita. Entire
perusal of evidence of PW-2 is full of
contradictions
and
imbalances
and
statement of PW-2 did not inspire
confidence.

19. So far, the statement of PW-1 /
Ghasita, injured witness, is concerned he
clearly stated in his chief that both the
accused / appellants were armed with
country-made pistol and both of them
fired upon Ghasita and further stated that
only one fire arm injury occurred in his
head but during cross-examination PW-1
/ Ghasita stated that only single fire was
launched by Gopi Chand and other
appellant Muluwa did not fire upon
Ghasita.
So
on perusal
of
crossexamination of PW-1 this is vital
contradiction on the deposition of injured
witness so in this case section 145 of
Evidence Act is applied. PW-1 makes
contradictory statement in his earlier
statement
deposed
in
his
chiefexamination. Thus we may say that PW1, injured, changed his entire version of
F.I.R. On perusal of F.I.R. it transpires
that gun shot injury inflicted by Shiv
Bahadur Singh but he never stated in his
statement regarding involvement of Shiv
Bahadur Singh.

20. Hon'ble Apex Court in Ramesh
Harijan Vs. State of U.P. (2012) 5 SCC
777 held that "If there are no material
discrepancies or contradiction in the
testimony of the witness, his evidence
cannot be disbelieved merely on the
basis of some normal, natural or minor
contradictions,
inconsistencies,
exaggerations, embellishment etc. The
distinction
between
material
discrepancies and normal discrepancies
are that, minor discrepancies do not
corrode the credibility of a party's case
but material discrepancies so".

21. On perusal of the entire
prosecution evidence, the oral evidence
of injured witness is not corroborated
with medical report. There are several
discrepancies and contradictions which
corrodes the credibility of prosecution
case. So the evidence adduced by these
witnesses are not cogent and reliable
and also does not inspire confidence.
Thus, this court is of the considered
opinion that there is no scope to sustain
conviction of the accused / appellants
for the offences under section 307/34
I.P.C. The accused / appellants are
entitled to benefit of doubt. As the
prosecution has not been able to prove
its case beyond all shadow of doubts.
Resultantly, for the reasons mentioned
above, the appeal stands allowed.

22. The impugned judgment,
conviction order and sentence passed
by learned trial court is hereby
quashed and set aside. The accused /
appellants are acquitted from all the
charges levelled against them.

23. Appellants are on bail. They
need not to surrender.

24. The office is directed to
transmit back the record of the Lower
Court with a copy of judgment and
order of this Court for necessary
compliance.
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(2020)08ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2020

BEFORE