# Munna v. State Of U.P

- **Citation:** (2016) 7 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-28
- **Bench:** Bharat Bhushan, Alok Kumar Mukherjee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-v-state-of-u-p-44072
- **Pages:** 11

## Text

7 All. Munna Vs State Of U.P.
351

"every suspicion is not a doubt. Only reasonable doubt gives benefit to the accused and not
the doubt of a vacillating judge."

"In a case based on circumstantial evidence if the chain of circumstances is complete - it
cannot be said that in absence of motive, the other proved circumstances are of no consequence."

35. In view of the facts and circumstances of the case, the prosecution has succeeded in proving
its case to the hilt and bringing home the charges against accused-appellant by consistent, trustworthy and
cogent evidence, beyond any reasonable doubt and the accused-appellant has been rightly convicted. We
are of the considered opinion that the prosecution has proved its case to the hilt beyond any shadow of
doubt and the learned trial court has not committed any mistake in making proper and correct appreciation
of evidence on record. We find that neither there is any illegality, irregularity or incorrectness in the
impugned judgment and order of conviction nor the sentence imposed is too severe, rather appropriate
sentences have been rightly imposed. The appeal has got no force and is liable to be dismissed.

36. Accordingly the appeal filed by accused-appellant is dismissed and conviction and sentences
are affirmed. All the interim orders, including order granting bail to appellant or staying operation of
impugned order of conviction, if any, or otherwise stand discharged.

37. The appellant is on bail pending appeal. His personal bonds and surety bonds are cancelled
and sureties are discharged. He is directed to surrender before the trial Court forthwith to serve out of
remaining term of sentences imposed upon him by trial Court and if he fails to surrender as directed, the
trial Court shall take necessary coercive actions against him for ascertaining compliance of order of
conviction and sentence.

38. Let the lower court record be transmitted to court below forthwith alongwith a copy of
judgment, with a direction that it shall take immediate steps for arrest of appellant for serving the
remaining term of sentence.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.
THE HON'BLE ALOK KUMAR MUKHERJEE, J.

Criminal Appeal No.- 296 Of 1983

Munna ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
352 INDIAN LAW REPORTS ALLAHABAD SERIES

Pankaj Kumar, Ashutosh, Jitendra Singh, R.S. Tomar, Rahul Chaturvedi

Counsel for Respondent:
Govt. Advocate

Murder - Ocular Evidence - Eyewitness Testimony - Related and Interested Witnesses - Minor
Discrepancies - Omission in FIR - Bicycle not mentioned - Comparison of Ocular and Medical
Evidence - Hostile Witness - Partial Reliance - Defence Witnesses - Credibility - Chance
Witness - Prior Enmity - Motive - Section 302, Indian Penal Code, 1860 - Appeal Dismissed -
Conviction Affirmed.

1. Ocular evidence - Eyewitness account - Credibility of testimony - Consistent and natural
deposition - High quality evidence - Conviction sustainable: Where the testimony of the
eyewitnesses is natural, consistent with normal human conduct, and is corroborated in its essential particulars
by the other oral and documentary evidence on record, it constitutes high quality evidence on which a
conviction under Section 302 IPC can be safely sustained. In the present case, the testimony of PW-2 Babboo
(son of the deceased), who was following his father on bicycle and witnessed the shooting, was found to be
natural and trustworthy. It was corroborated by PW-3 Shahid Khan who was present at the scene, by PW-13
(Investigating Officer), and even in material part by the hostile witness PW-11 Afsar. Minor discrepancies in
the depositions of eyewitnesses which do not affect the core of the prosecution case do not render such
testimony unreliable. Held, conviction affirmed.

2. Omission in FIR - Non-mention of bicycle used by informant - Not a material omission - FIR
not an encyclopaedia - No adverse inference: An FIR is not expected to be an encyclopaedia of all the
facts and circumstances of the case. Where the informant, while lodging the FIR shortly after the incident,
stated that he was following his father but did not specifically mention that he was doing so on a bicycle, such
an omission cannot be treated as a material improvement of his statement made subsequently during his
deposition before the court. The FIR is required to set out the gist of the first version of the incident. Where
the addition of the detail of a bicycle is a natural and innocuous elaboration that does not alter the substance
of the version given in the FIR, no adverse inference can be drawn against the prosecution on account of such
omission. Held, non-mention of bicycle in the FIR is not detrimental to the prosecution story.

3. Related and interested witnesses - Testimony not to be discarded solely on account of
relationship with deceased or informant - Trustworthy evidence of related witnesses can
sustain conviction: Relationship of a witness with the deceased or the informant is not by itself a sufficient
ground to discard an otherwise credible and trustworthy testimony. The mere fact that a witness is related to
the informant does not render his testimony unreliable if the substance of his deposition is natural, consistent,
and withstands scrutiny. The courts have consistently held that evidence of related witnesses, if found
reliable, can form the basis of conviction. Reliance placed on: State of U.P. versus Anil Singh, 1988 (Supp)
SCC 686. In the present case, even if PW-3 Shahid Khan is the cousin of PW-2 Babboo, his testimony was
found natural and trustworthy and was rightly relied upon by the trial court.

4. Minor discrepancies - Witnesses not expected to depose with mathematical precision -
Omission of minute details does not discredit testimony - Principles restated: Ordinarily,
witnesses cannot be expected to possess a photographic memory or to recall and reproduce minute details of
an incident with mathematical precision. Minor discrepancies in their depositions, particularly those relating to
peripheral details, do not demolish the credibility of otherwise trustworthy witnesses. The power of
observation and description differs from person to person. The exact time of an incident or the duration of an
occurrence is usually estimated by guess-work. Where the core of the prosecution case is consistent and
credible, minor inconsistencies in peripheral details should not be given undue weight. The prosecution is
7 All. Munna Vs State Of U.P.
353
required to prove its case beyond all reasonable doubt - but not beyond any shadow of doubt, which could
be fanciful. Relied upon: Bharwada Bhoginbhai Hirjibhai versus State of Gujarat, (1983) Cri 728 (SC).

5. Comparison of ocular and medical evidence - Not to be done mechanically - Minor
inconsistency in description of injury - Core of oral evidence consistent with medical evidence -
Ocular testimony not to be discarded: The comparison of ocular testimony with medical evidence should
not be done in a mechanical manner. Where the core of the oral testimony is not contrary to the medical
evidence and where the oral testimony is otherwise completely convincing, minor inconsistencies in the
description of the injury or the manner in which it was inflicted do not render the ocular evidence
untrustworthy. In the instant case, the argument that the shooting took place from a distance of 3-4 steps
which is inconsistent with the absence of blackening and tattooing on the body of the deceased was rejected,
as such inconsistency did not affect the core of the oral evidence. Relied upon: G.S. Walia versus State of
Punjab and others, (1998) 5 SCC 150; State of U.P. versus Premi and others, 2003 Cri.L.J. 1554.

6. Hostile witness - Testimony not obliterated from record - Court may rely on that part of
testimony of hostile witness which is found credible and reliable - Partial reliance permissible:
The testimony of a witness who turns hostile is not automatically erased from the record. The court retains
the power to sift the testimony of a hostile witness and to rely upon such part of it as is found to be reliable
and credible. In the present case, PW-11 Afsar, though turning hostile during his examination-in-chief, had
given a statement to the Investigating Officer under Section 161 Cr.P.C. disclosing that he had witnessed the
accused firing upon the deceased, and he admitted the veracity of that statement during cross-examination
when it was put to him with prior permission of the court. Further, his description of the position of the corpse
and the presence of prosecution witnesses at the spot unwittingly buttressed the prosecution case. The court
accordingly partially relied on his testimony.

7. Chance witness - Concept inapplicable in small towns - Witnesses who were in the natural
course of their occupation at the place of occurrence - Presence explained: The concept of a
chance witness, i.e., one whose presence at the scene of crime requires a specific explanation, has limited
application in the context of small towns and closely-knit communities where people are generally known to
each other and move in proximity to the place of occurrence in the natural course of their daily lives and
occupations. In the present case, PW-2 Babboo was following his father at the time of the incident for
attending his own place of work; his tea stall was barely 200 steps from the place of occurrence; the
deceased and the informant resided at a short distance from the place of occurrence. PW-3 Shahid Khan was
on his way to work in the vicinity. Judicial notice was taken of the fact that Rampur is a small town. In these
circumstances, neither PW-2 nor PW-3 can be characterised as a chance witness.

8. Motive - Prior enmity - Incident at tea stall on previous night - Deceased's intervention
causing insult to accused before companions - Motive for murder established: Where the
prosecution establishes a clear and proximate motive for the commission of murder, it strengthens an
otherwise cogent prosecution case. In the present case, on the evening prior to the murder, the accused
along with 4-5 companions had gone to the tea stall of the informant and demanded tea; on being refused,
he was admonished by the deceased in the presence of his companions; this caused the accused to feel
insulted and he made a specific threat to both the deceased and the informant before leaving. The murder
took place the very next morning at about 8:30 a.m. This sequence of events clearly establishes the motive of
the accused and is consistent with the prosecution story of pre-meditated murder arising from prior enmity.

9. Defence witnesses - Poor quality of evidence - Conflicting versions among defence
witnesses - Attempt to manufacture evidence - Not relied upon: Where defence witnesses give
conflicting versions inter se regarding material facts, such as the time of opening of shops in the area or the
date of departure to Pakistan, their testimony does not inspire confidence and cannot be relied upon to
354 INDIAN LAW REPORTS ALLAHABAD SERIES

dislodge a well-established prosecution case. In the present case, DW-1 and DW-2 gave conflicting times for
the opening of shops, and DW-2 initially stated he had gone to Pakistan on 20.08.1982 (i.e., prior to the
incident of 23.08.1982) and then changed his version, indicating that his testimony was fabricated. Both
defence witnesses claimed to have received information about the murder before the time alleged by the
prosecution without disclosing the source of such information. Their testimonies indicated a palpable attempt
to manufacture evidence. Held, defence evidence not credible.

RESULT:
Criminal Appeal dismissed. Judgment and order dated 05.02.1983 passed by the then Sessions
Judge, Rampur in Sessions Trial No. 154 of 1982 (State versus Munna) arising out of Case Crime
No. 287 of 1982, under Section 302 IPC, Police Station Ganj, District Rampur, convicting and
sentencing the appellant to life imprisonment, affirmed. Trial court directed to get the appellant
arrested and lodge him in jail to serve out the remaining period of sentence.

(Delivered by Hon'ble Bharat Bhushan, J.)

1. This criminal appeal is directed against the judgment and order dated 5.2.1983 passed by
then Sessions Judge, Rampur in Sessions Trial No. 154 of 1982 (State versus Munna) arising out of
Case crime no. 287 of 1982, Police Station Ganj, District Rampur whereby appellant was held
guilty of offence under section 302 Indian Penal Code (in short, IPC) and sentenced to
imprisonment for life.

2. Brief facts of the case are that deceased Amanat Khan used to ply rickshaw. His son
Babboo (PW-2) had a tea stall (hotel) at Bilaspur Gate at the time of occurrence. It is alleged that
on 22.8.1982 at about 9:00pm informant Babboo son of deceased Amanat Khan was on the brink of
closing his tea stall and had already cooled the furnace (bhatti). Suddenly, appellant Munna arrived
at the tea stall accompanied with 4-5 companions and asked Babboo to serve tea. Babboo expressed
his inability because of cooling of furnace. But Munna continued to insist. His father Amanat
Khan, a rickshaw puller was sitting on his rickshaw at the tea stall. He also intervened by scolding
Munna whereupon irate Munna feeling insulted in front of his friends, threatened both Amanat
Khan as well as informant Babboo and left with his companions.

3. It is alleged that on next day i.e. on 23.8.1982 at about 8:30am in the morning both
deceased Amanat Khan and his son informant Babboo left home at the same time for attending
their respective occupations. Deceased Amanat Khan was plying his rickshaw and informant
Babboo was following him on bicycle though bicycle is not mentioned in the First Information
Report (in short, FIR). As soon as they reached at tri-junction (Tiraha) of Mohalla Sarai Jahangir,
appellant Munna son of Asad Khan surfaced from the lane of Sarai Jahagir and opened fire upon
Amanat Khan deceased resulting in his almost instantaneous death. Part of body of deceased fell
down on the road but his one leg got entangled in the rickshaw frame.

4. This incident occurred sometime at 8:30am. Police Station was one kilometer away from
the place of occurrence. Report was lodged within 45 minutes. Police arrived immediately and
investigation ensued. Postmortem was conducted on the same day at about 4:00pm in the evening.
Following injuries were found on the person of deceased :-
7 All. Munna Vs State Of U.P.
355

"Multiple fire arm wound of entry 1⁄4 cm x 1⁄4 cm x few chest cavity and few muscle
deep in an area of 30cm x 15 cm on the right side back just below right scapular region extending
to right axillary line. There was no blackening, no tattooing and no charring present. The margins
were found inverted."

5. Investigating Officer D.S.Malik (PW-13) recorded the statement of various witnesses
including Babboo immediately in the aftermath of incident. Samples of blood stained concrete and
simple concrete of road were taken. A search for appellant Munna was initiated on the same day
i.e. on 23.8.1982 but he was not found. It is pertinent to point out that appellant Munna surrendered
of his own directly in the court on 24.8.1982 and was sent to jail. On 27.8.1982, his statement was
recorded inside the jail by the Investigating Officer and thereafter charge sheet (Ex Ka 14) was
submitted against him in the court.

6. Trial Judge charged him under section 302 IPC. He denied the charge and claimed trial.
The trial was conducted wherein statements of as many as 13 witnesses on behalf of prosecution
were recorded. The statement of accused-appellant was recorded under section 313 Cr.P.C. The
statement of two witnesses namely, Haji Babban (DW-1) and Dulahjan (DW-2) were recorded in
defence. Trial court concluded that despite the existence of some minor discrepancies, there was
sufficient evidence on record to hold that appellant was guilty of the offence under section 302 IPC.
He was accordingly held guilty under section 302 IPC and sentenced to life imprisonment vide
impugned judgment and order dated 5.2.1983.

7. Heard Sri Rajrishi Gupta, Advocate, holding brief of Sri Dilip Kumar, learned Advocate
for appellant and Sri Syed Murtuza Ali, learned Additional Government Advocate (in short, AGA)
on behalf of State.

8. Learned counsel for the appellant has submitted that there was not a single scratch on the
person of deceased Amanat Khan despite his fall from Rickshaw on the road. Ex Ka-8 the
memorandum of custody of Rickshaw does not indicate that part of body of deceased Amanat Khan
was found entangled in the frame of Rickshaw. He also claimed that Rickshaw was not stained with
blood despite the fact that as per prosecution story deceased Amanat Khan was peddling rickshaw
at the time of murder. He argued, that prosecution claim, that informant Babboo (PW-2) was
following his father on bicycle is not borne out of the evidence. Learned counsel for the appellant
has also submitted that there are several discrepancies in the prosecution evidence which belies the
presence of witnesses on the spot. He has further submitted that some witnesses are related to
informant Babboo, therefore, their evidence should not be believed. Learned counsel has stressed
that time of incident is not established. According to him incident occurred very early in morning
and some unknown person had killed deceased Amanat Khan. Subsequently, appellant has been
falsely implicated on account of previous enmity.

9. Per contra, Sri Syed Ali Murtuza, learned Additional Government Advocate has
submitted that incident occurred at 8:30am and a report was lodge at 9:15am i.e. within 45 minute
of incident. Every important detail is available in the FIR. Such details were not required to be
356 INDIAN LAW REPORTS ALLAHABAD SERIES

mentioned in the FIR. Sri Ali has also submitted that minor discrepancies indicated by defence do
not demolish the credibility of the witnesses. Considering the fact that investigation commenced
quickly, there was no occasion and opportunity for any person to manufacture the evidence or to
concoct the prosecution case. He has also submitted that according to prosecution, one leg of
deceased Amanat Khan was ensnared in the frame of rickshaw yet it did not cause any injury to
person of deceased. He would submit that this argument is based on presumption that mere fall of
body of deceased Amanat Khan on the road would necessitate injury on his person.

10. If we visualize the incident, it would be apparent that as soon as Munna Khan came out
of lane of Sarai Jahagir, he opened fire upon Amanat Khan. Deceased Amanat Khan died
instantaneously and his body fell down from rickshaw but it did not completely fell from rickshaw
rather it merely touched the ground because one leg of deceased Amanat Khan got stuck in the
frame of rickshaw. The instantaneous death and awkward fall of deceased Amanat Khan prevented
any injury on the person of deceased other than fire arm injury. The evidence indicates is that as
soon as deceased Amanat Khan saw Munna, armed with fire arm, he tried to step off the rickshaw
but Munna shot him immediately. This evidence would also explain the absence of blood on
rickshaw. The blood was indeed found on the road but as Amanat Khan was getting off the
rickshaw after seeing armed Munna probably rickshaw was spared the stain of blood.

11. The prosecution case is primarily based on highly credible testimony of PW-2 Babboo.
Informant Babboo has given two stories. One story discloses that the acrimony of previous night
wherein it is alleged that Munna came to his tea stall at the time of its closure. Some persons were
sitting inside the hotel. Babboo was winding up his work. He had already cooled furnace (Bhatti).
His father deceased Amanat Khan was waiting for him outside the tea stall. Accused-appellant
Munna came there along with 4-5 persons and asked him to serve tea. Babboo pleaded with them
saying that his furnace had already cooled, therefore, it is not possible for him to prepare tea. This
enraged Munna who felt insulted. He again insisted to serve him and his friend tea. Amanat Khan
also intervened and admonished Munna. This further inflamed appellant. This incident was seen by
some other witnesses as well. PW-3 Shahid Khan and PW-4 Zahid have also reinforced the story of
previous night given by PW-2 Babboo though they have been denounced by defence as related and
interested witnesses. We are afraid that this alone can not be a ground for discarding the otherwise
trustworthy testimony of both the witnesses. They have not given any evidence regarding murder of
deceased. PW-3 Shahid Khan is probably cousin of PW-2 Babboo but PW-4 Zahid is a rickshaw
puller and was present at the tea stall of Babboo Khan for imbibing his tea. It is obvious that this
tea stall was not meant for elite classes. The tea stall was primarily meant for ordinary persons,
therefore, it was natural for rickshaw pullers to frequent such place. Deceased Amanat Khan was
also a rickshaw puller. His presence was also natural as he was waiting for his son. Next day,
deceased Amanat Khan was shot and killed by appellant Munna in the morning.

12. Second part of story has also been given by Babboo who was following his father. He
has testified that his father was assassinated in his presence by appellant Munna. Learned counsel
has disputed this fact saying that PW-2 Babboo has improved upon his earlier story during course
of evidence. FIR simply says that he was following his father in the morning but during the course
7 All. Munna Vs State Of U.P.
357
of his testimony, added that he was following his father on bicycle. We are afraid, this can not be
described as improvement. Father and son left together for their respective works. The father was
peddling rickshaw and son was following him on bicycle. There was no necessity to mention this
fact in the FIR. The FIR is not supposed to be encyclopedia. He has explained that he did not
accompany his father on rickshaw for the simple reason that he owned a bicycle and therefore, left
on bicycle and his father left on rickshaw for earning money. It was not possible for the father to
take his son. It is pertinent to point out that city of Rampur is a small place even today. This
incident occurred 34 years back and at that time Rampur was very quiet and small place. Judicial
notice of this fact can be taken. PW-2 Babboo has testified that place of occurrence was 400 steps
from his residence while tea stall was merely 200 steps from the place of occurrence. One can very
easily understand that residence of deceased and informant was at short distance from tea stall.
Therefore, informant used bicycle for such a small distance. We believe that non-mentioning of
bicycle in the FIR is not detrimental to prosecution story at all. The evidence of PW-2 Babboo
Khan is of high quality. It is natural, trustworthy and consistent with normal human conduct. Minor
discrepancies indicated by learned counsel for appellant have not adversely affected the quality
testimony. It merely shows that this witness has not been tutored.

13. PW-3 Shahid has also testified regarding incident. His testimony is also natural and
trustworthy. The minor discrepancies indicated by learned counsel for the appellant are certainly
not detrimental to prosecution story. People do not see incident of murder routinely in their every
day life. It is always not possible to give minute details of the incident with mathematical precision.
Where the bullet hit deceased Amanat Khan is a question, ordinarily meant for doctor, who
conducted autopsy. PW-3 Shahid Khan has testified that appellant fired shot which hit the deceased
on his waist. He has also stated that appellant Munna opened fire from the distance of 3-4 steps.
Learned counsel for appellant has submitted that this story is not consistent with the medical report
because medical report discloses that there was no blackening and tattoo on the person of deceased.
We can not countenance this attempt to compare ocular evidence with medical evidence in
mechanical manner. If core of ocular testimony is not contrary to the medical evidence, then minor
inconsistencies in description can not be taken into consideration especially if ocular testimony is
completely convincing. In the instant case, oral evidence of eyewitnesses is highly credible and
trustworthy.

14. In G.S. Walia versus State of Punjab and others (1998) 5 SCC 150, the Apex Court
has held that the comparison of medial evidence with ocular testimony should not be done in
mechanical manner. In the aforesaid case, some injuries caused by sharp edged weapon was found
by doctor but in ocular testimony there was no mention of sharp edged weapon yet the Apex Court
refused to reject the testimony of oral witnesses.

15. This view was again reiterated by Apex Court in State of U.P. versus Premi and
others 2003 Cri.L.J. 1554. In this case, medical opinion stated that margins of injuries were soft
and probably caused by sharp edged weapon while the prosecution story said that injuries were
caused by butt of revolver. This stated discrepancy was argued before the Apex Court but Apex
Court rejected this minor discrepancy and affirmed the sentence against the accused persons. It is
358 INDIAN LAW REPORTS ALLAHABAD SERIES

the present case too, the ocular evidence is completely trustworthy. Core of medical evidence is
also consistent with oral evidence. We do not accept the contention of learned counsel on this
score.

16. Learned counsel for the appellant has also drawn the attention of this Court towards
testimony of PW-11 Afsar which has not supported prosecution version. Perusal of this testimony
reveals that it does not help the appellant at all. The hostile testimony of any witness does not get
automatically effaced from the face of record. The court is empowered to rely on the part of
testimony of such witness, if found reliable and credible. The gist of testimony of PW-11 Afsar has
in fact supported prosecution story. The incident occurred sometime at about 8:30am. According to
this witness when he reached the place of occurrence, he found corpse of Amanat Khan. His
description of position of body of Amanat Khan is absolutely consistent with the prosecution story.
He says that leg of deceased Amanat Khan was stuck in rickshaw and part of body was lying on the
road. He has also admitted the presence of PW-2 Babboo, Wahid and PW-3 Shahid at the place of
occurrence. The only discordant note is when he says that he did not see any body killing Amanat
Khan and that Babboo, Wahid and Shahid reached the place of occurrence after him and none of
them had actually seen the occurrence. A careful perusal of testimony of PW-11 Afsar would
reveal that this witness is won over by Munna. During investigation, he stated that he had
witnessed Munna Khan firing a shot on deceased Amanat Khan and that PW-2 Babboo was
following his father; and that he also made an attempt to catch the accused but failed. This part of
statement recorded under section 161 Cr.P.C. was quoted to him during cross examination by
prosecution with the prior permission of the court. He admitted the veracity of this statement and
conceded that he did give this statement to Investigating Officer. Thereafter he again changed his
version during cross examination by defence counsel. He has changed his testimony far to often to
place any reliance upon him. But one thing is clear that he has unwittingly buttressed the case of
prosecution. It is trite law that testimony of hostile witness is not obliterated from the face of
record.

17. Learned counsel for the appellant has also argued that position of the body of deceased
Amanat Khan has not been explained by witnesses. We do not agree with the learned counsel for
appellant on this score also. We believe that testimony of PW-2 Babboo, PW-4 Shahid along with
evidence of PW-13 D.S.Malik are sufficient to reveal the exact position of the corpse of deceased.
PW-13 D.S. Mulik has submitted that body of deceased was partly stuck in his rickshaw and partly
lying on the road (ground). The same story was given by PW-2 Babboo and PW-3 Shahid. Learned
counsel for the appellant has drawn attention of this Court towards the memorandum of custody
(Supurdginama) of rickshaw (Ex Ka-8) wherein this fact has not been mentioned. We believe that
Ex Ka -8 was prepared for limited purpose. Rickshaw was found at the place of occurrence. This
rickshaw was handed over to Babboo Khan son of deceased Amanat Khan after executing required
documentation. This memorandum of custody of rickshaw has been proved as Ex.Ka-8. This
document was not prepared for showing the exact position of dead body of deceased Amanat Khan.
This paper was prepared for limited purpose of officially handing over rickshaw to the son of
deceased. Any attempt to read more into it, is not justified.
7 All. Munna Vs State Of U.P.
359
18. Learned counsel for the appellant has also argued that both PW-2 Babboo Khan and
PW-3 Shahid Khan are chance witnesses. We are afraid, this argument is not sustainable for the
simple reason that at small place like Rampur, especially 34 years back, ordinarily no one could be
deemed to be chance witness. In such a small place most of the people are aware of others,
especially neighbours or people belonging to same social group. In any case, Babboo and his
deceased father had left their residence simultaneously for their respective occupations. The tea
stall of Babboo Khan was not at great distance. His departure with his father was quite natural.
Similarly evidence of PW-3 Shahid Khan also discloses that he is not chance witness. He was
going from Bilaspur Gate to Chirimaran tri-junction. He has stated that he was going for work at
Bilaspur Gate and that he also found two acquaintance there. One of them, Tahir Husain (PW-5)
later on scribed the FIR dictated by Babboo Khan. PW-5 Tahir Husain has also reiterated that he
reached the place of occurrence at 8:35am. Learned counsel for the appellant has claimed that this
incident occurred very early in the morning and prosecution has deliberately shown it to have
occurred at 8:30am. Police Station is at a distance of one kilometer from the place of occurrence.
Learned counsel for the appellant has argued that nearby shopkeepers open their shops at about
7:00am but even the defence witness DW-2 Dulahjan has debunked this claim by saying that shops
in the area open at 8:00am. Both defence witnesses have given conflicting version about time of
opening of the shops in the area. There is nothing on record to demonstrate that the murder took
place at 5:00am. There was no occasion for deceased Amanat Khan to go at the place of occurrence
at 5:00am in the morning. The occurrence did not take place at a secluded place. Even if incident
had occurred very early in the morning, somebody would have noticed it, especially in the light of
the fact that Police Station is not far off.

19. We have carefully examined all the record. The evidence given by defence witnesses is
not credible. The incident occurred on 23.8.1982. One of the witness,namely, DW-2 Dulahjan
initially stated that he had gone to Pakistan on 20.8.1982. If he was in Pakistan on the date of
incident, there was no occasion for him to witness the incident. Later on, he changed his version
and said that he left for Pakistan on 28th of Moharrum. In fact, both the defence witnesses were not
present at the place of occurrence. Both claim that they received information of murder of Amanat
Khan when they reached their shops, alluding thereby that stated murder took place prior to the
time shown by prosecution. Prosecution says the murder took place at 8:30am but both the defence
witnesses say murder took place prior to 7:45am and 8:00am. Both the defence witnesses were not
present at the time of incident. They have not disclosed from whom they received information of
death of Amanat Khan. The quality of their evidence is poor. We are afraid, it is not possible to rely
on their story. Their testimonies indicate an effort to manufacture evidence.

20. We have gone through the entire evidence. The fact that some of the witnesses are
related is not sufficient ground for disbelieving their testimonies. Their trustworthy evidence can be
taken into consideration for convicting the accused. (State of U.P. versus Anil Singh 1988 (Supp)
S.C.C. 686).

21. Learned counsel for the appellant has repeatedly stated that there are some
discrepancies in the prosecution version. In the FIR, it is not mentioned as to how the body of the
360 INDIAN LAW REPORTS ALLAHABAD SERIES

deceased was found. He has argued that cycle allegedly used by son of deceased is not mentioned
in the FIR. These are minor discrepancies. We believe that testimony of the witnesses can not be
rejected on account of minor discrepancies only. Ordinarily witnesses are not be expected to give
minute details of incident. The power of observation and description differs from person to person.
In regard to exact time of an incident, or duration of an occurrence, people usually make estimate
by guess-work and one cannot expect witnesses to give precise or reliable estimate in such matters.
It depends on the time sense of individuals which varies from person to person. The Apex Court in
Bharwada Bhoginbhai Hirjibhai versus State of Gujarat (1983) (Cri) 728, has held thus:-

"We do not consider it appropriate or permissible to enter upon a reappraisal or
reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted
by learned counsel for the appellant. Over much importance cannot be attached to minor
discrepancies. The reasons are obvious:

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

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

(3) The powers of observation differ from person to person. What one may notice,
another may not. An object or movement might emboss its image on one person's mind whereas it
might go unnoticed on the part of another. (4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or heard by them. They can only recall
the main purport of the conversation. It is unrealistic to expect a witness to be a human tape
recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence,
usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of
interrogation. And one cannot expect people to make very precise or reliable estimates in such
matters. Again, it depends on the time- sense of individuals which varies from person to person.

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

(7) A witness, though wholly truthful, is liable to be overawed by the court
atmosphere and the piercing cross examination made by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up details from imagination on the spur of
the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of
looking foolish or being disbelieved though the witness is giving a truthful and honest account of
7 All. C/M, Lalit Krishna Women Institute of Higher Education, Inderpur, Ballia & Anr. Vs
 State Of U.P. & Ors.
361
the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism
activated on the spur of the moment."

22. In the light of the aforesaid discussion, it is evident that ordinarily witnesses are not
expected to depose with mathematical precision. They are expected to give reasonable description
of the incident already occurred. Prosecution is also expected to prove its case beyond all
reasonable doubt. We can not expect prosecution to establish its case beyond any shadow of doubt,
for the simple reason that people can have fanciful doubts regarding anything, in any manner, and
at any stage.

23. In view of the aforesaid discussion, the appeal fails and is according dismissed. The
judgment and order passed dated 5.2.1983 passed by then Sessions Judge, Rampur in Sessions Trial
No. 154 of 1982 (State versus Munna) arising out of Case crime no. 287 of 1982, Police Station
Ganj, District Rampur whereby appellant was convicted under section 302 IPC is affirmed. The
trial court is directed to get the appellant arrested and lodge him to jail to serve out the remaining
period of sentence.

24. Let this judgment be certified to the court concerned through the Sessions Judge,
Rampur within two weeks for compliance. Thereafter concerned court shall report compliance
within 30 days.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No.- 317 Of 2016

C/M, Lalit Krishna Women Institute of Higher Education, Inderpur, Ballia & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioners:
Sri Rajeev Misra, Sri Prashant Kumar Tripathi

Counsel for Respondents:
C.S.C., Sri Vivek Verma

Education Law -- University Examination -- Mass Copying -- Flying Squad Report -- Competence
of Flying Squad -- Comparison of Answer Scripts -- Inference of Mass Copying -- Lalit Krishna
Women Institute of Higher Education, Inderpur, Ballia, an institution affiliated to Mahatma Gandhi Kashi
Vidyapeeth, Varanasi was made an examination centre for UG courses for the academic session 2014-15 -- on
07.05.2015 the flying squad visited during the Mathematics (Second) Paper examination of B.Sc. 1st year and