# Munna (In Jail) v. State of U.P

- **Citation:** (2020) 2 ILRA 708
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-13
- **Case number:** Criminal Appeal No. 860 of 1998
- **Bench:** Bachchoo Lal, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-in-jail-v-state-of-u-p-45723
- **Pages:** 19

## Headnote

A. Criminal Law-Indian Penal CodeSections 302, 323, 324 & 307 - Appeal
against conviction.

The statement of witness regarding injuries
of
deceased
and
injuries
on
injured
persons
are
corroborated
by
medical
evidence. The presence of injured eyewitness is not doubtful, therefore, their
statement are liable to be believed.(Para
18)
2 All. Munna Vs. State of U.P.
709
Identification of accused
in court is a
substantial piece of evidence in present case.
Accused/appellants failed to mention any
motive for causing voluntarily delay in test
identification parade. There is consistency in
evidence on the point of occurrence and on the
point of roll played by each accused/appellants
in evidence of witnesses Pw- 1 to Pw- 3, which
is also corroborated by medical evidence. The
injuries which have been found on the body of
deceased and on the body of eye-witnesses
indicates that weapons, as has been mentioned
in F.I.R. and in evidence of witnesses. (Para
32)

It has to be kept in mind that counsel for
defence neither asked any explanation nor
confronted on above point as according to
provisions to Section 145 of Evidence Act
in
cross-examination
of
Pw-
7
(investigating officer), therefore appellants
cannot raise such defence as grounds for
their acquittal at appellate stage. (Para 34)

In view of the facts, circumstances and
evidence as discussed above, we are of the
confirmed
view
that
prosecution
has
succeed to prove the charges and no
illegality or infirmity is found in the
judgement and conviction order of sessions
court. (Para 37)

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

_Characters 0–39,995 of 63,848. This is a partial read: ask again with offset=39995 for what follows._

708 INDIAN LAW REPORTS ALLAHABAD SERIES
the agony of conviction for more than 32
years and no criminal antecedents have
been shown to their credit after passing of
so much long period out of jail, at this
stage it does not appear appropriate to
send the accused-appellant to jail. It has
been pointed out by learned counsel for
the accused-appellant that the accusedappellant
had
remained
in
jail
for
sometime during trial.

18. Considering all these facts, it
would be appropriate and proper that the
accused be sentenced with the period
already undergone and the amount of fine
be enhanced.

19. Considering all the facts and
circumstances of the case, the accusedappellant nos.1 and 2 are sentenced to
the period already undergone by them in
jail during trial and an amount of fine of
Rs.5,000/- be imposed instead of sending
them to jail.

20. Accused-appellant nos.1 Sundu
and appellant no.2, Jagga are both being
directed to deposit the fine of Rs. 5,000/-
before learned lower court within two
month from the date of issuance of
certified copy of this order, out of which
Rs.2,500/-
shall
be
paid
to
the
complainant, if she is alive and in case
she is dead then it would be paid to her
legal heirs and in default of payment of
fine as directed above, accused shall
undergo simple imprisonment for a
period of fifteen days. If the said amount
is deposited by the appellant no.2, Jagga
he shall be released forthwith, if not
wanted in any other case and the
appellant no.1, Sundu who was not
arrested in compliance of the order of
this Court need not to surrender. The
appellant no.1, Sundu will also deposit
the fine of Rs.5,000/- within two months
from the date of issue of certified copy
of this order.

21. Appeal is partly allowed against
the appellant nos. Sundu and appellant
no.2, Jagga in the above terms.

22. Copy of this order be
transmitted to the concerned lower court
forthwith for compliance.
----------
(2020)02ILR A708

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2020

BEFORE
THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Appeal No. 860 of 1998
connected with
Criminal Appeal No. 1123 of 1998

Munna ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.C. Dwivedi, Sri I.K. Chaturvedi

Counsel for the Opposite Party:
A.G.A., Sri P.B. Umrao, Sri Rajeev
Trivedi, Mrs. Swati Agrawal, Sri Amit
Mishra, Sri Viresh Mishra

A. Criminal Law-Indian Penal CodeSections 302, 323, 324 & 307 - Appeal
against conviction.

The statement of witness regarding injuries
of
deceased
and
injuries
on
injured
persons
are
corroborated
by
medical
evidence. The presence of injured eyewitness is not doubtful, therefore, their
statement are liable to be believed.(Para
18)
2 All. Munna Vs. State of U.P.
709
Identification of accused
in court is a
substantial piece of evidence in present case.
Accused/appellants failed to mention any
motive for causing voluntarily delay in test
identification parade. There is consistency in
evidence on the point of occurrence and on the
point of roll played by each accused/appellants
in evidence of witnesses Pw- 1 to Pw- 3, which
is also corroborated by medical evidence. The
injuries which have been found on the body of
deceased and on the body of eye-witnesses
indicates that weapons, as has been mentioned
in F.I.R. and in evidence of witnesses. (Para
32)

It has to be kept in mind that counsel for
defence neither asked any explanation nor
confronted on above point as according to
provisions to Section 145 of Evidence Act
in
cross-examination
of
Pw-
7
(investigating officer), therefore appellants
cannot raise such defence as grounds for
their acquittal at appellate stage. (Para 34)

In view of the facts, circumstances and
evidence as discussed above, we are of the
confirmed
view
that
prosecution
has
succeed to prove the charges and no
illegality or infirmity is found in the
judgement and conviction order of sessions
court. (Para 37)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. Surjit Singh @ Gurnit Singh Vs. St. of Punj. 1993
SCC (Cri) 161,

2. Gulam Sarbar Vs. St. of Bihar (Now Jharkhand)
(2014) 3 SCC 401,

3. Bipin Kumar Mondal Vs. St. of W.B. (2010) 12
SCC 91,

4. Balram Singh Vs. St. of Punj. 2003 AIR (SC) 2213,

5. Baboolal Vs. St. of U.P. 2001 SCC (Cri) 1484,

6. Rizan and Another Vs. St. of Chattis. 2003 CRI.
L.J. 1226 SC,

7. Dharampal and others Vs. St. of U.P. 2008 Cr.L.J.
1016,

8. St. of U.P. Vs. Shane Haidar and others 2015 (1)
J.Cr.C 775 I,

9. Tufail Ansari vs. St. of U.P. 2015 (2) J.Cr.C 1086,

10. Leela Ram vs. St. of Har. and Others, 2000 SCC
(Cri) 222,

11. Shivappa and Others vs. St. of Kar., 2008 CrLJ
2992,

12. Satrughana Alias Satrughana Parida and others
Vs. St. of Orissa 1995 Supp (4) SCC 448,

13. Pramod Mandal Vs. St. of Bihar (2004) 13 SCC
150,

14. Sheo Shankar Singh Vs. St. of Jharkhand and
another (2011) 3 SCC 654,

15. Sukhchain Singh Vs. St. of Har. & Ors 2002 SCC
(Cri.) 961,

16. Allarakha K. Mansuri Vs. St. of Guj. 2002 SCC
(Cri.) 519,

17. Kashi Nath Mandal vs The St. of W.B. & Ors
2013 (1) SCC 364 (SC),

18. State Of Kar. vs K. Yarappa Reddy AIR 2000 SC
185,

19 Umashankar Tivari vs St. Of U.P. And Another
2015 (89) SCC 421,

20. Ram Bali Vs. State of U.P. 2004 (2) JIC 168 (SC),

21. St. Of Punj. vs Hakam Singh Appeal (Cri.) 130 of
2000,

22. Krishna Mochi And Others vs St. Of Bihar 2002
(2) J.Cr.C 123,

23. Gajoo vs State Of Uttarakhand 2012 (9)
SCC 532,

24. Virendra Singh @ Virendra Pratap Singh Vs.
St. of U.P. 2015 (2) ACR 1461
710 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. The instant appeals have been
preferred against the judgement and
conviction order dated 27.04.1998 passed
by Sessions Judge, Hamirpur in Sessions
Trial No. 34 of 1989 (State Vs. Bal
Kishan), and Sessions Trial No. 103 of
1989 (State Vs. Munna) under Sections
302, 323, 324 & 307 I.P.C., P.S.- Rath,
District- Hamirpur.

2. Both the Sessions Trial have been
decided by the common judgement as both
the accused persons were involved in same
occurrence and Crime No. 443 of 1988.
Hence, both the appeals are being decided
by the common judgement.

3. By order dated 27.04.1998 learned
sessions judge has convicted appellants
Bal
Kishan
and
Munna
with
life
imprisonment under Sections 302/34, four
years rigorous imprisonment under Section
307/34, one year rigorous imprisonment
under
Section
324
I.P.C.
and
imprisonment
for
six
months
under
Section 323 of I.P.C. concurrently.

4. The facts of the case in brief are
that complainant Indra Bahadur Misra
moved a Tahrir in Police Station- Rath,
District- Hamirpur that Suresh Mishra @
Lalla, Chaini and his son Sarman Chamar
all the resident of his village had gone to
Shaktideen Lodhi at village- Badanpura
for some of their work. Shaktideen was not
available at his residence, therefore, all the
three persons were returning back. The
complainant and Ram Kumar Lodhi a
resident of his village were going towards
Rath from his Village, as they reached
near culvert (puliya) of Badanpura, Bal
Kishan
@
Ballu
Gaderiya
carrying
country-made pistol in his hand, Lakshmi
Prashad Gaderiya carrying axe in his hand
and one unknown person who was
carrying Ballam, came out of the bushes
Renaujha; Lakshmi Prashad exhorted to
kill them. On his exhortation, one
unknown person pushed Ballam in the
wheel of cycle of Suresh, resultantly
Suresh fell down and all the three
miscreants
started
beating
Suresh;
Lakshmi attacked on the head of Suresh by
his axe, Bal Kishan fired on Suresh by
country-made
pistol
on
the
temple
(kanpati) of Suresh, resultantly he fell
down on the spot and died. When other
persons tried to rescue Suresh, one of the
miscreants attacked on the thigh of Chaini
by his Ballam, resultantly he also fell
down. Bal Kishan fired on Sarman by his
country-made pistol but the fire was
missed then the miscreant who was
carrying Ballam in his hand beaten Sarman
by his Ballam using as lathi Sarman ran
away by shouting voice. The complainant
and Ram Kumar exhorted and ran towards
spot then that miscreant who was carrying
Ballam in his hand and Lakshmi both
started
beating
Ram
Kumar
Lodhi,
resultantly all the persons ran away from
the spot and started shouting. The
miscreants ran away towards north side.
The occurrence was seen by so many
peoples
including
above
persons.
Informant has further stated that at the
time of game of Diwali, a fighting and
quarrel took place among deceased, Bal
Kishan
and
Lakshmi
Prashad.
The
villagers extricated the quarrel. He has
further stated that the miscreant who was
carrying Ballam, was a young person, if he
will come again before him he will
recognize him.

5. On the basis of above application
(tahrir) the F.I.R. of occurrence was
2 All. Munna Vs. State of U.P.
711
registered at Crime No. 443 of 1988, under
Section 302 and 307 at Police Station-
Rath, District- Hamirpur. The time of
occurrence was shown on 11.11.1988 at
12.00 noon and the F.I.R. was lodged on
the same day at 3.00 p.m. Inquiry officer
Deena Nath Dubey (Pw- 7) reached on
spot and prepared inquest report of
deceased and sent the dead body for post
mortem in sealed condition through
constable Chote Lal and Hargobind. I.O.
also prepared letter for medical inspections
of injured persons. He prepared the
recovery memo of blood-stained and plain
soil from the spot. He recovered one cycle
near the dead body of Suresh Chandra
Misra and a wrist watch and prepared its
memo. He sketched spot map also. The
post-mortem of Suresh Chandra was
conducted by Doctor N.K. Joshi (Pw- 6)
on
12.11.1988
and
injured
persons
Sarman, Chaini and Ram Kumar was
medically
examined
in
hospital
on
12.11.1988.
After
completion
of
investigation, I.O. submitted charge-sheet
against accused persons Bal Kishan,
Munna and Lakshmi.

6. The charges of Section 302/34,
307, 324 and 323 were framed against
accused persons namely, Bal Kishan,
Lakshmi Prashad and Munna who denied
the charges and chosen to be tried.

7.

As
documentary
evidence,
prosecution filed following papers which
were proved by respective witnesses:-

Tahrir F.I.R. as (Ex. Ka- 1),
identification memo as (Ex. Ka- 2),
charge-sheet against Bal Kishan and
Lakshmi Prashad as (Ex. Ka- 3), chargesheet against Munna as (Ex. Ka- 4), injury
report of Chaini as (Ex. Ka- 5), injury
report of Sarman as (Ex. Ka- 6), injury
report of Ram Kumar as (Ex. Ka- 7), the
post-mortem report of Suresh Chandra as
(Ex. Ka- 8), Chick F.I.R. (Ex. Ka- 9),
inquest report as (Ex. Ka- 10), police
paper form no. 13 as (Ex. Ka- 11), photo
nash (Ex. Ka- 12), letter for P.M.R. (Ex.
Ka- 13), spot map (Ex. Ka- 14), letter for
medical examination of Chaini (Ex. Ka-
15), letter for medical examination of
Sarman as (Ex. Ka- 16), letter for medical
examination of Ram Kumar as (Ex. Ka-
17), recovery memo of blood-stained and
plain soil (Ex. Ka- 18), recovery memo of
cycle and wrist watch as (Ex. Ka- 19),
attachment memo (Ex. Ka- 20), carbon
copy of G.D. entry (Ex. Ka- 21).

8. As oral evidence prosecution
produced Indra Bahadur as Pw- 1, Chaini
Pw- 2, Ram Kumar as Pw- 3, M.P.
Awasthi Pw- 4 and Ram Swaroop Singh as
Pw- 5, Doctor N.K. Joshi as Pw- 6, Deena
Nath Dubey as Pw- 7.

9. The statement of witness Pw- 1
Indra
Bahadur
was
recorded
on
31.08.1992 who in his examination in
chief has repeated the same prosecution
version regarding the occurrence as
mentioned in F.I.R. The cross-examination
was
concluded
on
03.11.1992.
The
statement of witness Pw- 2 was recorded
on 03.11.1992 who corroborated the
statement of Pw- 1 on the point of
occurrence his cross-examination was
concluded on 03.11.1992. Witness Pw- 3
Ram Kumar deposed on 27.11.1992 who
also stated the same story as Pw- 1 and
Pw- 2 in his cross-examination, was
concluded on same day. Witness Pw- 4
M.P.
Awasthi-
the
Identification
Magistrate, Hamirpur has deposed that in
his presence the identification pared took
place. Witness Pw- 6 Doctor N.K. Joshi
has proved the injury reports of Chaini,
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Sarman and Ram Kumar. He also proved
the post-mortem of deceased Suresh
Chandra Mishra. Witness Deena Nath
Dubey- Pw- 7 the I.O. has proved the
proceedings of investigation.

10. Regarding the facts, evidence and
incriminating
circumstances,
questions
were asked by accused appellants Bal
Kishan and Munna under Section 313 of
Cr.P.C. in which both the accused persons
shown their ignorance in reply of the
questions. The reason for prosecution they
have replied "due to enmity." In reply of
the questions of identification in jail,
accused appellant Munna has stated that
witnesses were acquainted with him prior
to occurrence as he is brother-in-law of
Chatrapal who is younger brother of Bal
Kishan. During trial accused Lakshmi
Prashad had died and the trial was abated
against
him
on
08.08.1990.
Before
recording his statement under Section 313
of Cr.P.C. On behalf of the accused
appellants, Jai Kunwar has been examined
as Dw.- 1.

11. We have heard learned counsel
for the appellants, learned counsel for the
complainant as well as learned A.G.A. for
the State and perused the record.

12.

Learned
counsel
for
the
appellants
has
submitted
that
the
appellants have falsely been implicated in
the case. The place of occurrence has not
shown in F.I.R. The presence of witnesses
as Pw- 1, Pw- 2 and Pw- 3 are doubtful.
No recovery of weapons or cartridges has
been made. Witnesses are interested.
Identification of appellant- Munna is
doubtful. Motive of offence has not been
proved. The appellants have falsely been
implicated only due to enmity. Prosecution
has failed to prove his case against
appellants.
Appellants
liable
to
be
acquitted, accordingly appeals be allowed.

13. Learned A.G.A. as well as
counsel for complainant submitted that
F.I.R. of occurrence is prompt. There is no
discrepancy in evidence regarding place of
occurrence.
Injured
witnesses
have
deposed and proved the case successfully.
There is no discrepancy on the factum of
occurrence. Appellant Munna has been
identified in jail as well as in court by the
witnesses. Motive of occurrence has been
proved, which is supported by ocular
evidence and by the evidence of injured
witnesses who had received injuries in
same occurrence. The aforesaid evidence
is corroborated by medical evidence.
Prosecution has succeeded to prove his
case against appellants beyond reasonable
doubt. They have rightly been convicted
by the Sessions Judge. Appeals are liable
to be rejected.

14. In F.I.R. the date and time of
occurrence has been shown on 11.11.1988
at 12.00 noon. The F.I.R. has been lodged
on the same date at 3.00 pm whereas the
distance of police station has been shown
as 14 k.m. The fact regarding lodging of
F.I.R. has been supported by G.D. entry
(Ex. Ka- 21). In first information report
and in statement of witnesses Pw- 1 to Pw-
3 it has been shown that witness Pw- 1
Indra Bahadur Mishra was eye-witness of
the occurrence and after committing the
occurrence when the accused persons fled
away from the spot, the informant rushed
to Police Station- Rath, District- Hamirpur
by keeping the dead body of deceased
Suresh Chandra in supervision of injured
witnesses- Chaini, Sarman and Ram
Kumar. Witness Pw- 1 Indra Bahadur has
stated in his evidence that he had reached
at Dharamsala in approximately 01.15
2 All. Munna Vs. State of U.P.
713
hours where he wrote the application
(tahrir) for F.I.R. The distance of police
station is approximately 15 to 20 steps
away from the said Dharamsala. In crossexamination he has denied that the
application (tahrir) was written by him on
the dictation of Daroga Ji. The witness has
been cross-examined by defence side at
length but nothing could be brought on
record which could indicate the fact that
the F.I.R. of the occurrence was lodged by
complainant with any prior consultation or
with any inordinate delay. Keeping in
mind, the distance of place of occurrence
from police station and in abscene of any
contrary evidence, it appears that the F.I.R.
of occurrence has been lodged by
complainant promptly and without any
inordinate delay.

15. Witness Pw- 1 has deposed in his
evidence that on 11.11.1988 at about 12.00
noon Suresh Chandra Mishra and Chaini
Chamar and his son Sarman who were
resident of the same village, they had gone
Badanpura to the house of Shaktideen
Lodhi for some of his work. They went
there by cycles. Suresh Chandra was
riding alone at his cycle and Chaini and his
son Sarman were on another cycle. Chaini
was sitting at the cycle as pillion rider. As
Shaktideen Lodhi was not available at his
residence of Badanpura therefore, all those
persons coming back from Badanpura to
their village. At that time witness Pw- 1
Indra Bahadur along with Ram Kumar a
resident of his village were going to Rath
from their village, as they reached near the
culvert (puliya) of Badanpura, they saw
that all of sudden Bal Kishan Gaderia,
Lakshmi Prashad and one unknown person
came out from the bushes of Reunjha. Bal
Kishan was carrying tamancha, Lakshmi
Prashad was carrying axe and unknown
person was carrying Ballam in their hands.
On the exhortation of Lakshmi Prashad to
kill Suresh Chandra, all the three persons
ran towards him. The unknown person
who was carrying Ballam in his hand
pushed the Ballam in the wheel of cycle of
Suresh
Chandra,
resultantly,
Suresh
Chandra fell down. At once all the three
persons started beating Suresh Chandra.
Lakshmi attacked with his axe on his head,
Bal Kishan fired by his country-made
pistol (tamancha) on his temple (kanpati).
Suresh Chandra fell down and died on
spot. At that time, as the Chaini and
Sarman tried to save him, the person who
was carrying ballam pushed his ballam in
thigh of Chaini resultantly Chaini fell
down due to its injury. Bal Kishan fired on
Sarman which fortunately got missed.
Simultaneously, the person who was
carrying Ballam ran towards Sarman and
beaten him by lathi part of his Ballam.
Consequently, Sarman shouted and ran
away.
Seeing
the
occurrence
the
complainant as well as Ram Kumar also
ran towards the place of occurrence to
save them. Complainant was behind Ram
Kumar. When Ram Kumar tried to save,
Lakshmi and the unknown persons who
was carrying Ballam, beaten him. Seeing
the occurrence all the persons shouted
loudly for help resultantly the assailants
ran towards northern side. The occurrence
was seen by the aforesaid persons as well
as other persons who were present in their
fields. The witness PW-1 has further stated
in his evidence that just after the
occurrence the fact was told him by Chaini
that the deceased Suresh and the witnesses
Chaini and Sarman had gone to Badanpura
for some of their work.

16. So far as the role of accused
persons are concerned, witness Pw- 1 has
stated in his evidence, that as the deceased
Suresh Chandra fell down from his cycle,
714 INDIAN LAW REPORTS ALLAHABAD SERIES
all the three assailants started beating him.
Lakshmi Prasad attacked on deceased by
his axe thereafter Bal Kishan fired on
Suresh by his country-made pistol. He has
further stated that at the time of firing he
along with Ram Kumar was 25 to 30 steps
away from deceased. He has also stated
that the deceased has received only one
injury of fire arm. The country-made pistol
(tamancha) was single barrel. Witness Pw-
1 has also said that Chaini had fell down
by the injury of Ballam just 8 to 10 steps
away from deceased towards East. At that
time Chaini was wearing Kurta and Dhoti,
with knot like langot. Ram Kumar had
received the injury of axe at his palm. He
further stated that the unknown assailant
was attacking on Sarman from the wooden
side (lathi part ) of his Ballam.

17. Witness Pw- 2 Chaini has
narrated and reiterated the happening of
occurrence same as it has been stated by
witness Pw- 1 so far as the injury on his
body as well as on the body of his son
Sarman, he has stated in his evidence that
they have gone to Badanpura to hire
tractor of Sattidin for ploughing the field.
He was not available at his residence,
therefore they were coming back. He has
further submitted that he had received the
injury of Ballam. He has also stated that
Bal Kishan has fired on his son Sarman
which was missed. On firing upon him, his
son Sarman turned back, at that time the
unknown persons beaten him by lathi part
of his Ballam then after that Sarman ran
towards village, when Ram Kumar moved
to save Suresh Chandra, Lakshmi attacked
by his axe and unknown persons attacked
on him also by lathi part of his Ballam. He
has further stated that he (witness Pw- 2),
Sarman, Ram Kumar and Indra Bahadur
had gone to police station and thereafter
they have gone for medical examination,
where he, Sarman and Ram Kumar was
examined by Doctor. He has further stated
that he had gone to village- Badanpura for
hire tractor to plough his field which he
had taken on Balkat. The deceased also
went to hire the tractor of Sattidin to
plough his own field. He has also stated
that today I have dressed kurta and dhoti
which is lying upto his knee. Learned
counsel for the appellant has submitted
that witness Pw- 2 wear dhoti upto knee
long, hence his statement that at the time
of occurrence he was wearing his dhoti
knot like langot is false, as normally one
can wear the dhoti as langot. Since no
pierced and blood-stained dhoti has been
recovered by I.O., therefore, the presence
of Chaini on spot is highly doubtful. In
reply
counsel
for
complainant
has
submitted that at the time of occurrence
witness Pw- 2 Chaini was sitting at the
carrier of cycle as pillion rider. In such a
situation it is probable that he may knot his
dhoti as langot type just to prevent
sticking of his dhoti in the back wheel of
cycle. If the I.O. has not recovered any
such dhoti of witness Pw- 2 then in that
case it may be the fault of I.O. Learned
counsel for the appellants has also
submitted that the witness Pw- 1 has
mentioned that when Chaini tried to save
Suresh, the unknown assistant stabbed his
Ballam in the thigh of Chaini (Pw- 2)
whereas the medical report of his injury
indicates that there was a incised wound
with clean cut. He has further stated that if
a sharped weapons like Ballam will be
stabbed on the body, the edges of wound
will be with everted margin, which is not
found in this case. Learned counsel for the
complainant has replied that witness Pw- 2
has not stated that the assailants had
stabbed Ballam in his thigh rather he has
mentioned that the assailants attacked him
by his Ballam. The word stab was used by
2 All. Munna Vs. State of U.P.
715
the eye-witnesses Pw- 1 and Pw- 3 who
have seen the occurrence from some
distance. The attack was so quick that it is
highly probable that the witnesses would
not have been able to see the occurrence
attack like slow motion. At that time the
attention of witnesses was also diverted
towards the attack on Suresh Chandra.
Witness Pw- 6 Dr. N.K. Joshi has openid
that the injury of Chaini is probable by the
Ballam, therefore, the presence of witness
Pw- 2 cannot be doubted on place of
occurrence.

18. Witness Pw- 3 Ram Kumar has
also described the manner of occurrence of
attack on deceased in his evidence as it has
been stated by witnesses Pw- 1 and Pw- 2
in their evidence. Witness Pw-3 has
further stated that when the assailants
attacked on Suresh Chandra he along with
Indra Bahadur moved forward to save him.
At that time Indra Bahadur was behind
him. As witness Pw- 3 Ram Kumar moved
forward, Lakshmi Prashad attacked on him
by his axe, his aim was head of Ram
Kumar but he has pushed his hand just to
prevent and save the attack on his vital
part resultantly he received the injury of
axe at his palm. The unknown persons
who was carrying Ballam also attacked on
him from the lathi sides of Ballam. As
they shouted voice for help assailants ran
towards north. Witness Pw- 3 on the part
of his evidence regarding mode of
occurrence as well as role of assailants has
been cross-examined thoroughly by the
defence side but no contradiction comes
out. Witnesses Pw- 1 and Pw- 3 has
narrated the F.I.R. version properly. No
otherwise fact could come on record which
may indicate any fact otherwise. The
injury of injured persons is supported by
their medical examination reports as Ex.
Ka-5, 6 & 7. The injury sustained by
deceased has also been mentioned in F.I.R.
which has been proved by his post-mortem
report as well as by evidence of witness
Pw- 6 Dr. N.K. Joshi. Injury nos. 1, 2, 9
and 10 shows the injury of sharp, edged
weapon like axe. Injury nos. 3, 4, 8, 12 and
13 can be caused by lathi. Eye-witnesses
Pw- 1, Pw- 2 and Pw- 3 have stated that
the unknown assailant has used his
Ballam like lathi also. Therefore, the
aforesaid injuries are probable when the
Ballam has been used like lathi. Injury
nos. 14 and 15 can be caused by the
sharp pointed weapon like Ballam and
injury nos. 3 and 5 can be caused by firearm as has been narrated by witnesses
that the appellant Bal Kishan fired on
deceased by tamancha. It has not been
disputed that a close range fire which
has been caused almost in contact with
the surface of body may cause through
and through injury over the surface and
in that case entry wound may be larger
in size than exit wound, which is
possible due to movement of projectile
of fire-arm. It has also been found that
blackening was present at the edges of
wound of enjury no. 5 which was entry
wound. The mode of fire-arm injury has
been corroborated by the statement of
Pw- 1 where he has stated Bal Kishan
has fired on temple ((kanpati)) of
deceased in close range. Keeping the
tamancha
in
contact
with
temple
(kanpati)
region
of
deceased.
The
statement of witness regarding injuries
of deceased and injuries on injured
persons Sarman, Chaini and Ram Kumar
are corroborated by medical evidence.
The presence of injured eye-witness is
not doubtful, therefore, their statement
are liable to be believed. If there is no
contradiction in the statement of witness
and with medical evidence it has been
held by Hon'ble Apex Court in the case
716 INDIAN LAW REPORTS ALLAHABAD SERIES
Surjit Singh @ Gurnit Singh Vs. State
of Punjab 1993 SCC (Cri) 161, that:-

"9. To be fair to the learned
counsel for the appellant, we may mention
that he ventured to argue that the evidence
regarding the matching of the crime bullet
shells with the pistol recovered was not
convincing, more so when the .303 pistol,
the alleged crime weapon, was recovered
from Gurmit Singh, co-accused. It is
noteworthy
that
Gurmit
Singh,
co-
accused, stands convicted under the Arms
Act for being in possession of that pistol.
This aspect of the case cannot be a
substitute to the eye-witness account or the
plea taken by the appellant. Had the
presence of the two witnesses, that is,
Jaswinder kaur PW-5 and Taljit Singh
PW-2 at the scene of the occurrence been
doubted, the recovery of the weapon of
offence and its connection with the empty
shells recovered at the spot would have
assumed some significance. When the two
eye-witness are natural witnesses of the
crime, one being the young wife who
would normally be in the company of the
husband at 10.30 p.m. on a summer night
and the other the nephew of the deceased
who had suffered grevious injuries in the
occurrence and was thus a stamped
witness, not much importance is to be
attached to this aspect of the case. The
venture is futile."

The evidence of injured witnesses
Pw- 2 and Pw- 3 are reliable and
trustworthy.

19.

Learned
counsel
for
the
appellants further argued that as according
to prosecution case if the assailants were
having deadly weapons in their hands and
they were able to give fatal injuries to
witness and were able to eliminate the
evidence against them why they have not
caused grievous/fatal injuries to Chaini,
Sarman, Ram Kumar and Indra Bahadur,
on the other hand the said injuries of
Chaini, Sarman and Ram Kumar is simple
in nature, therefore, the evidence of
aforesaid persons are not liable to be
believed.
Considering
the
facts
and
evidence on record it reveals that there
was enmity of deceased with appellants
namely, Bal Kishan and Lakshmi Prashad.
It has been shown in F.I.R. as well as in
evidence of witness Pw- 1 that prior to
incident, during the game of Diwali, a
quarrel and fighting took place in between
appellants Bal Kishan, Lakshmi Prashad
with
deceased
Suresh,
which
was
extricated and settled by interference of
village persons. In his cross-examination
witness Pw- 1 has stated that he himself
was witness of that altercation, both the
parties were abusing each other. He was
also one of the mediator. Reason of
murder of deceased Suresh has been
shown aforesaid quarrel and due to the
enmity, the appellants and Lakshmi
Prashad attacked on deceased- Suresh
Chandra Mishra. They were not having
any enmity with complainant or other eyewitness and just to provide scare and
horrify them as well as manage to escape
they have given the simple injuries to eyewitnesses. Therefore, accused persons
have not caused any fatal injuries to
witnesses rather they attacked only on
deceased Suresh Chandra, hence it cannot
be said that presence of eye-witnesses of
the place of occurrence was not probable.

20.

Learned
counsel
for
the
appellants has further argued that the
motive as shown in F.I.R. is rather weak in
nature and upon simple quarrel in village it
was not probable to cause death of
deceased Suresh Chandra. The argument
advanced by learned counsel for the
2 All. Munna Vs. State of U.P.
717
appellants is not forceful as what was the
situation at the time of quarrel and fighting
one day prior to occurrence, it has not
been described. The enmity of trifle matter
may grow up. It varies from persons to
persons that how, a person tackles his
emotions. Hon'ble Apex Court Hon'ble
Apex Court has held in the case of Gulam
Sarbar Vs. State of Bihar (Now
Jharkhand) (2014) 3 SCC 401, in case
law Rohtash Kumar Vs. State of Haryana,
Criminal Appeal No. 896 of 2011, Bipin
Kumar Mondal Vs. State of West
Bengal (2010) 12 SCC 91, Balram Singh
Vs. State of Punjab 2003 AIR (SC) 2213
and in Baboolal Vs. State of U.P. 2001
SCC (Cri) 1484 that where there is direct
evidence, prosecution is not needed to
prove motive of offence. How the mind of
an assailant reacts is not to be fathomed
from a detached reflection. Criminal
conspiracy in general hatched in secrecy,
thus direct evidence is difficult to obtain or
access. However, where there is direct
evidence of witnesses, who are reliable on
appreciation of evidence according to legal
norms, it is not necessary to establish
motive of accused persons.

21.

Learned
counsel
for
the
appellants further argued that witness Pw-
1 Indra Bahadur belongs to caste of
deceased and he is in relation with
deceased also. Therefore, his evidence is
not reliable. Witness Pw- 2 Chaini has
taken the lease of land by the grace of
father of deceased and witness Pw- 3 Ram
Kumar is in relation with witness Pw- 1,
therefore,
their
evidence
are
not
trustworthy. Although, the fact reveals
from the evidence of Pw- 1 that he is in
relation with deceased person but there is a
consistency in statement of witnesses,
which establishes that they were eyewitnesses of occurrence. Witness Pw- 2
has denied in his evidence that he was not
allotted any land on lease by the father of
deceased, when he (father of deceased)
was village pradhan rather the earlier
pradhan Sudhar Singh allotted him three
acres of land on lease. In rebuttal of above
statement, appellants failed to produce any
documentary or oral evidence. Therefore,
it cannot be said that witness Pw- 2 was
ever obliged by Ram Swaroop the father
of deceased Suresh Chandra Mishra. There
is nothing on record which may indicate
that witness Pw- 3 was ever friendly with
deceased or complainant. Perusal of entire
evidence of Pw- 3 reveals that he was just
a resident of his village who was going
Rath to purchase the edible items for his
daily use. After careful and proper scrutiny
of evidence of witnesses Pw- 1 to Pw- 3,
no contradiction is found on the substantial
point of prosecution case.

22. It is also to be kept in mind that
date of occurrence has been shown on
11.11.1988. The evidence of Pw- 1 was
recorded on 31.08.1992. The evidence Pw-
2 was recorded on 03.11.1992 and
evidence of Pw- 3 was recorded on
27.11.1992. All the witnesses Pw- 1 to
Pw- 3 are living in village. Out of which
age of witness Pw- 2 was 65 years at the
time of recording of his evidence and he
was an illiterate person also. In above
situation
there
might
be
some
inconsistency in their evidence. It has been
held by Hon'ble Apex Court in the case of
Rizan and Anothers Vs. State of
Chattisgarh 2003 CRI. L.J. 1226 SC in
Para- 6, that:-

"6.- We shall first deal with the
contention regarding interestedness of the
witnesses
for
furthering
prosecution
version. Relationship is not a factor to
affect credibility of a witness. It is more
718 INDIAN LAW REPORTS ALLAHABAD SERIES
often than not that a relation would not
conceal
actual
culprit
and
make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent and credible."

23. The same verdict has been given
by Hon'ble Supreme Court in the case of
Dharampal and others Vs. State of U.P.
2008 Cr.L.J. 1016. The relevant part of
the judgment is reproduced as under:-

"12. This takes us to the next
question viz. whether the other lacunae
pointed out by the learned counsel for the
appellants are fatal to the prosecution
case . We agree that the High Court erred
in relying on the evidence of PW4, who
admittedly was declared a hostile witness.
Nevertheless, we fell that in the fact of the
other evidence of PW2 Dannu, PW3 Om
Prakash who were corroborated in all
material respects by PW7 Dr. R.P. Goyal
and by PW9, Dr. U. Kanchan, the
evidence of PW4, even if discharged, is
inconsequential. The evidentiary value of a
dying declaration and the principles
underlying the imprtance of a dying
declaration have already been discussed
herein earlier. Simply because PW2 and
PW3, in their cross-examination, have
been shown to be related to the deceased
does not mean that their testimony has to
be rejected. It is well settled that evidence
of a witness is not to be rejected merely
because he happens to be a relative of the
deceased. In State of Himanchal Pradesh
V. Mast Ram [(2004) 8 SCC 660], this
Court observed as under :-

"............The law on the point is
well settled that the testimony of the
relative witnesses cannot be disbelieved on
the ground of relationship. The only main
requirement is to examine their testimony
with caution. Their testimony was thrown
out at the threshold on the ground of
animosity and relationship. This is not a
requirement of law.............."

In this view of the matter and
this being the well-settled law, it is difficult
for us to discard the evidence of the
witnesses, as discussed hereinabove, only
on the ground that they were related to the
deceased, in the absence of any infirmity
in the said evidence."

Considering the evidence of aforesaid
eye-witnesses as a whole there seems no
contradiction on the point of occurrence as
well as role of appellants in occurrence. It
has been held by Hon'ble Apex Court in
case of State of U.P. Vs. Shane Haidar and
others 2015 (1) J.Cr.C 775 in Para- 34,
that:-

"34. After an overall assessment
of
all
the
witnesses,
produced
by
prosecution, we are of thhe firm view that
all the witnesses are throughout cogent
and consistent while deposing in court. All
the factual witnesses are rustic villagers,
who are bound to get confused during
their cross-examination. PW-2 is an
injured witnesses, which fact is evident
from his injury report, duly proved by the
Doctor.
Apart
from
some
minor
contradictions nothing has been elicited in
their statements to cause a shadow of
doubt on their credibility."

24. On the same point, another
Bench of this Court in case of Tufail
Ansari vs. State of U.P. 2015 (2) J.Cr.C
1086 has held that:-

"28. The contention that PW-3
Smt. Babli Jaiswal has admitted in her
cross examination that the police had
come to their house at about 8.00 p.m.,
2 All. Munna Vs. State of U.P.
719
and that she was unsure when she had left
for the police station and that PW-1
Ramesh Kumar Jaiswal, informant had
stated that he had reached the police
station at about 7.00 p.m. or that the
appellant Tufail was arrested at about
9.00 p.m. Even if there were some conflicts
in the timings, it only suggests that the
rural witnesses were a little confused
about the timings of the incident or the
time when the police had taken the
appellant Tufail at about 2.00 a.m. to get
the body recovered. Even if there are
certain minor discrepancies in the timings
and conduct of the investigation, as the
basic structure of the prosecution evidence
is intact in this case, on the basis of the
factum of discovery of the dead body in the
middle of the night on the pointing out of
the appellant, which was admissible under
section 27 of the Evidence Act and the last
seen evidence against the appellant by
PW-2 Suresh is also intact, little reason
exist for not relying on these crucial
circumstances which are sufficient to
establish the complicity of the appellant in
this offence."

25. In para 9 of the case Leela Ram
vs. State of Haryana and Others, 2000
SCC (Cri) 222:- Hon'ble Supreme Court
has held that:-

"9.- Be it noted that the High
Court is within its jurisdiction being the
first appellate court to reappraise the
evidence, but the discrepancies found in
the ocular account of two witnesses unless
they are so vital, cannot affect the
credibility of the evidence of the witnesses.
There are bound to be some discrepancies
between
the
narrations
of
different
witnesses when they speak on details, and
unless the contradictions are of a material
dimension, the same should not be used to
jettison the evidence in its entirety.
Incidentally, corroboration of evidence
with mathematical niceties cannot be
expected
in
criminal
cases.
Minor
embellishment,
there
may
be,
but
variations by reason therefor should not
render the evidence of eyewitnesses
unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable
evidence. In this context, reference may be
made to the decision of this Court in State
of U.P. v. M.K. Anthony ; AIR 1985 SC 48.
In para 10 of the Report, this Court
observed: (SCC pp. 514-15)

"10. 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
scrutinise 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. Minor discrepancies on
trivial matters not touching the core of the
case, hypertechnical 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.