# Munna v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-14
- **Case number:** Criminal Appeal No. 543 of 2022
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-v-state-of-u-p-ors-49101
- **Pages:** 11

## Headnote

A. Criminal Law - Appeal against acquittal
- Criminal Law Amendment Act - Section 7
- Indian Penal Code,1860 - Section 436 -
Delay in lodging the FIR and its impact
upon the prosecution theory - It is well
settled that the delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case - Mere delay in lodging the
first information report with the police is, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in
the light of the plausibility of the explanation
forthcoming for such delay accordingly must fall
for
consideration
on
all
the
facts
and
circumstances of a given case.

Delay in lodging the FIR quite often
results in embellishment which is a
creature of afterthought. On account of
delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of
the
introduction
of
coloured
version,
exaggerated account or concocted story As a
result of deliberation and consultation. It is,
therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained. (Para 22
to 27)

Normally, the Court may reject the case of the
prosecution in case of inordinate delay in
lodging the FIR because of the possibility of
concoction of evidence by the prosecution.
However, if the delay is satisfactorily explained,
the Court will decide the matter on merits
674 INDIAN LAW REPORTS ALLAHABAD SERIES
without giving much importance to such delay.
The Court is duty-bound to determine whether
the explanation afforded is plausible enough
given the facts and circumstances of the case.
The delay may be condoned if the complainant
appears to be reliable and without any motive
for implicating the accused falsely. (Para 27)

The incident of setting ablaze the house of the
informant took place on 12.10.2008, however,
the written complaint, which transformed into
lodging of the FIR was dated 13.10.2008 at
18:05 hours, despite the fact that PW-2 Vivek
son of Keshav and Pappu were present though
did not lodge the FIR. There has been no
explanation offered by the prosecution in
lodging
the
FIR
after
huge
delay,
particularly when the police station itself
was 100 steps from the house of the
informant. (Para 28)

B. It is well settled principle of law that
appellate courts hearing the appeal filed
against the judgment and the order of the
acquittal should not overrule or otherwise
disturb the judgment acquittal, if the
appellate court does not find substantiate
and compelling reasons for doing so.
Nonetheless if the trial courts conclusion w.r.t.
the facts is palpably wrong if the trial court
decision was based on erroneous view of law
and the judgment is likely result in grave
miscarriage
of
justice and
the approach
proceeded towards wrong direction or the trial
court has ignored the evidence or misread the
material
evidence
which
should
have
determining the factor in the lis of the matter
then obviously the appellate court is right in
interfering with the
order acquitting the
accused. In case two views are possible and the
view so taken by the trial court while acquitting
the accused is a plausible view then in the
backdrop of the fact that there is double
presumption of innocence available to the
accused then obviously the appellate court
should not interfere with the order of acquittal.
(Para 7, 8)

This Court finds that the prosecution proceeds
on weak footing as not only there is delay in
lodging of the FIR, but the other indices for
linking the accused for commission of crime is
also lacking, particularly of the fact that there
are major contradictions in the St.ment of PW-1
and PW-2 as well as the fact that Pappu did not
appear in the witness-box and the manner in
which investigation has been done and lastly,
but not the least, the fact that the four accused
as discussed above were in judicial custody,
when the said crime was said to have
occasioned. (Para 29 to 31)

C.
It
is
well
settled
that
enmit

## Text

9 All. Munna Vs. State of U.P. & Ors.
673
caused to his own body, mind, reputation
and property and such loss or injury is one
of the ingredients of the offence for which
the accused person has been charged and,
therefore, any other person cannot be
accepted as victim within the first part of
Section 2 (wa) for the purposes of
maintaining appeal. It was further held that
the second part "includes his or hear
guardian and Legal Heir" would come into
play when the actual sufferer is absent or
suffers disability.

9. From perusal of record, we find
that that the deceased has a son Rajesh Jha
who was stated to be in Mumbai and was
posted
as
Deputy
Commissioner
of
Customs at the time of incident, therefore,
the instant appellant-Ajay Gaud herein,
who is nephew of the deceased, cannot be
taken as a victim as held by Hon'ble Full
Bench in Manoj Kumar Singh (supra).
Since Rajesh Jha, son of the deceased, is
alive, therefore, even the second part of the
definition as provided in Sub-Section 2
(wa) CrPC would not come into play as
held by Hon'ble Full Bench in Manoj
Kumar Singh (supra).

10. Accordingly, present appeal
stands dismissed as not maintainable.

11. However, it is made clear that
dismissal of the present appeal as not
maintainable would not effect the merits of
the criminal appeal filed by the accused
persons.
----------
(2022) 9 ILRA 673
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 543 of 2022
(U/S 372 Cr.P. C.)

Munna ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Ramanuj Yadav

Counsel for the Opposite Parties:
Govt. Advocate, Sri Nand Kishor Mishra,
Shilpa Ahuja

A. Criminal Law - Appeal against acquittal
- Criminal Law Amendment Act - Section 7
- Indian Penal Code,1860 - Section 436 -
Delay in lodging the FIR and its impact
upon the prosecution theory - It is well
settled that the delay in giving the FIR by
itself cannot be a ground to doubt the
prosecution case - Mere delay in lodging the
first information report with the police is, not
necessarily, as a matter of law, fatal to the
prosecution. The effect of delay in doing so in
the light of the plausibility of the explanation
forthcoming for such delay accordingly must fall
for
consideration
on
all
the
facts
and
circumstances of a given case.

Delay in lodging the FIR quite often
results in embellishment which is a
creature of afterthought. On account of
delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of
the
introduction
of
coloured
version,
exaggerated account or concocted story As a
result of deliberation and consultation. It is,
therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained. (Para 22
to 27)

Normally, the Court may reject the case of the
prosecution in case of inordinate delay in
lodging the FIR because of the possibility of
concoction of evidence by the prosecution.
However, if the delay is satisfactorily explained,
the Court will decide the matter on merits
674 INDIAN LAW REPORTS ALLAHABAD SERIES
without giving much importance to such delay.
The Court is duty-bound to determine whether
the explanation afforded is plausible enough
given the facts and circumstances of the case.
The delay may be condoned if the complainant
appears to be reliable and without any motive
for implicating the accused falsely. (Para 27)

The incident of setting ablaze the house of the
informant took place on 12.10.2008, however,
the written complaint, which transformed into
lodging of the FIR was dated 13.10.2008 at
18:05 hours, despite the fact that PW-2 Vivek
son of Keshav and Pappu were present though
did not lodge the FIR. There has been no
explanation offered by the prosecution in
lodging
the
FIR
after
huge
delay,
particularly when the police station itself
was 100 steps from the house of the
informant. (Para 28)

B. It is well settled principle of law that
appellate courts hearing the appeal filed
against the judgment and the order of the
acquittal should not overrule or otherwise
disturb the judgment acquittal, if the
appellate court does not find substantiate
and compelling reasons for doing so.
Nonetheless if the trial courts conclusion w.r.t.
the facts is palpably wrong if the trial court
decision was based on erroneous view of law
and the judgment is likely result in grave
miscarriage
of
justice and
the approach
proceeded towards wrong direction or the trial
court has ignored the evidence or misread the
material
evidence
which
should
have
determining the factor in the lis of the matter
then obviously the appellate court is right in
interfering with the
order acquitting the
accused. In case two views are possible and the
view so taken by the trial court while acquitting
the accused is a plausible view then in the
backdrop of the fact that there is double
presumption of innocence available to the
accused then obviously the appellate court
should not interfere with the order of acquittal.
(Para 7, 8)

This Court finds that the prosecution proceeds
on weak footing as not only there is delay in
lodging of the FIR, but the other indices for
linking the accused for commission of crime is
also lacking, particularly of the fact that there
are major contradictions in the St.ment of PW-1
and PW-2 as well as the fact that Pappu did not
appear in the witness-box and the manner in
which investigation has been done and lastly,
but not the least, the fact that the four accused
as discussed above were in judicial custody,
when the said crime was said to have
occasioned. (Para 29 to 31)

C.
It
is
well
settled
that
enmity
emanating as a motive is two-sided
dagger and thus in order to put the
motion of motive for conviction, same is
to be proved beyond doubt also. Motive
cannot be ipso facto a ground to hold the
accused guilty of commission of crime,
particularly
when
though
allegations
regarding administering of beating upon the
brothers and the family members of the
informant has been made, but no document
whatsoever has been produced before the
Court either showing the nature of the
injuries or the lodging of the complaint or FIR
against them. (Para 33)

There is no perversity in the order of the
Trial Court which is a possible view and
the
testimony
of
the
prosecution
witnesses and the evidences so adduced
therein do not point towards in any
manner whatsoever for conviction of the
accused. In the absence of any perversity or
misreading of the evidences so sought to be
adduced by the prosecution, this Court has no
option but to concur with the judgment of the
Trial Court acquitting the accused herein. (Para
32, 34)

Appeal dismissed. (E-4)

Precedent followed:

1. Tota Singh & anr. Vs St. of Pun., (1987) 2 SCC
529 (Para 9)

2. Ramesh Babulal Doshi Vs St. of Guj., (1996) 9
SCC 225 (Para 9)

3. St. of Raj. Vs St. of Guj., (2003) 8 SCC 180
(Para 9)

4. St. of Goa Vs Sanjay Thakran, (2007) 3 SCC
755 (Para 9)
9 All. Munna Vs. State of U.P. & Ors.
675
5. Chandrappa & ors. Vs St. of Karn, (2007) 4
SCC 415 (Para 9)

6. Ghurey Lal Vs St. of U.P., (2008) 10 SCC 450
(Para 9)

7. Siddharth Vashishtha @ Manu Sharma Vs St.
(NCT of Delhi), (2010) 6 SCC 1 (Para 9)

8. Babu Vs St. of Kerala, (2010) 9 SCC 189 (Para
9)

9. Ganpat Vs St. of Har., (2010) 12 SCC 59 (Para
9)

10. Sunil Kumar Sambhudayal Gupta (Dr.) &
ors. Vs St. of Mah., (2010) 13 SCC 657 (Para
9)

11. St. of U.P. Vs Naresh, (2011) 4 SCC 324
(Para 9)

12. St. of M.P. Vs Ramesh (2011) 4 SCC 786
(Para 9)

13. Jayaswamy Vs St. of Karn. (2018) 7 SCC 219
(Para 9)

14. Thulia Kali Vs The St. of T. N., (1972) 3 SCC
393 (Para 22)

15. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Kerala, (1973) 3 SCC 114 (Para
23)

16. Tara Singh & ors. Vs St. of Pun., 1991 Supp
(1) SCC 536 (Para 24)

17. Meharaj Singh Vs St. of U.P., (1994) 5 SCC
188 (Para 25)

18. Thanedar Singh Vs St. of M.P. (2002) 1 SCC
487 (Para 26)

19. P. Rajagopal & ors. Vs St. of T. N. (2019) 5
SCC 403 (Para 27)

Present appeal assails judgment and order
dated 03.11.2018, passed by IV Addl.
Sessions Judge, District Hamirpur.

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal under Section 372 of
Criminal Procedure Code, 1973 (in short
'Cr.P.C.'), has been instituted by the
appellant against the judgment and order
dated 3.11.2018 passed by IVth Addl.
Sessions Judge, District Hamirpur, passed
in S.T. No. 1 of 2009, arising out of Case
Crime no. 672 of 2008, under Sections 436,
120-B IPC, Police Station- Khanna, District
Hamirpur, whereby learned trial court has
acquitted the accused persons, who are
opposite parties nos. 2 to 8.

2. Briefly stated facts shorn off
unnecessary details are that the first
informant being the appellant Munna son
of Late Bhagwan Deen is a resident of
village
Gyodi, P.S. Khanna, District
Hamirpur. As per the prosecution case, on
10.10.2008, one Rajesh Dubey, accused
respondent no.7, Ashok Dubey- accused
respondent no.8, Chhuttan Singh, accusedrespondent no.6, Udai Bhan Singh, accused
-respondent no.5, Kishori Sahu, accused -
respondent no.2, Rajju Mali- accusedrespondent no.3 and Babu Mali- accused -
respondent no.4 in connection with certain
water dispute indulged in administering
beating with the brother and family
members
of
the
informant,
pursuant
whereto the brothers of the informant
sustained injuries and they were put to
medication
in
the
District
Hospital,
Hamirpur. Further it has been alleged that
on 12.10.2008 at 9:30 hours in the night,
the accused-respondent Kishori, Rajju Mali
and Babu Mali assembled in front of his
house and consigned the house to flames.
Pursuant
whereto
enormous
damage
occasioned. As per the prosecution version,
so contained in the FIR after a period of
two days, the nephews of the informant
being
Vivek
and
Pappu
gave
the
information regarding putting the house on
flames by the aforesaid three accused as
676 INDIAN LAW REPORTS ALLAHABAD SERIES
named
hereinabove.
Accordingly,
the
informant came back to his house, as he
was out-stationed and straightway went to
the site of occurrence and on the same day,
he reported the matter to the police station
Khanna,
District
Hamirpur
and
accordingly, the FIR purported to be under
Section 436 IPC read with section 7 of the
Criminal Law Amendment Act was sought
to be lodged being Case Crime no. 672 of
2008. The FIR in question was lodged on
13.10.2008 at 18:50 hours. The FIR was
lodged against Kishori Sahu (accusedopposite party no.2), Rajju Mali (accusedopposite party no.3) and Babu Mali
(accused - opposite party no.4).

3. Consequent to the lodging of the
FIR, investigation was put to motion and
investigating officer was nominated who
went to the site of occurrence prepared site
plan and recorded under Section 161 CrPC.
A charge sheet was submitted by the
Investigating Officer against the accusedrespondents herein purported to be under
Sections 436, 120-B IPC read with Section
7 Criminal Law Amendment Act. The
matter was committed to the Court of
Sessions. The accused pleaded innocent
and not guilty.

4. To bring home the charges, the
prosecution produced following witnesses,
namely:

1.
Munna
PW1
2.
Vivek
PW2
3.
Head Constable Ram
Bharose
PW3
4.
S.I. Balbeer Singh
(I.O.)

PW4

5. We have heard Sri Ramanuj Yadav,
learned counsel for the appellant and Sri
Ratan Singh, learned A.G.A. for the State.

6. Before we embark on testimony
and the judgment of the Court below, the
contours
for
interfering
in
Criminal
Appeals where accused has been held to be
non guilty would require to be discussed.

7. The Hon'ble Apex Court in the
series of decisions have been consistently
mandating that it is well settled principle of
law that appellate courts hearing the appeal
filed against the judgment and the order of
the acquittal should not overrule or
otherwise disturb the judgment acquittal, if
the
appellate
court
does
not
find
substantiate and compelling reasons for
doing so.

8. Nonetheless if the trial courts
conclusion with regard to the facts is
palpably wrong if the trial court decision
was based on erroneous view of law and
the judgment is likely result in grave
miscarriage of justice and the approach
proceeded towards wrong direction or the
trial court has ignored the evidence or
misread the material evidence which should
have determining the factor in the lis of the
matter then obviously the appellate court is
right in interfering with the order acquitting
the accused. However, Hon'ble Apex Court
has further held that in case two views are
possible and the view so taken by the trial
court while acquitting the accused is a
plausible view then in the backdrop of the
fact that there is double presumption of
innocence available to the accused then
obviously the appellate court should not
interfere with the order of acquittal.

9. The above noted proposition of law
is clearly spelt out in umpty number of
9 All. Munna Vs. State of U.P. & Ors.
677
decisions, some of them are as under
namely:-Tota Singh and another vs. State
of Punjab, (1987) 2 SCC 529, Ramesh
Babulal Doshi vs. State of Gujarat, (1996)
9 SCC 225, State of Rajesthan vs. State of
Gujarat, (2003) 8 SCC 180, State of Goa
vs. Sanjay Thakran, (2007) 3 SCC 755,
Chandrappa and others vs. State of
Karnataka, (2007) 4 S.C.C. 415, Ghurey
Lal vs. State of U.P., (2008) 10 SCC 450,
Siddharth
Vashishtha
Alias
Manu
Sharma vs. State (NCT of Delhi), (2010) 6
SCC 1, Babu vs. State of Kerala, (2010) 9
SCC 189, Ganpat vs. State of Haryana,
(2010)
12
SCC
59,
Sunil
Kumar
Sambhudayal Gupta (Dr.) and others vs.
State of Maharashtra, (2010) 13 SCC 657,
State of U.P. vs. Naresh, (2011) 4 SCC
324, State of M.P. vs. Ramesh, (2011) 4
SCC 786, and Jayaswamy vs. State of
Karnataka, (2018) 7 SCC 219.

10. Bearing in mind the judicial
pronouncement of the Hon'ble Supreme
Court in dealing with the appeals at the
instance of the complainant, the present
case is to be decided.

11. To begin step by step, the ocular
testimony of the prosecution witness is to
be meticulously analyzed.

12. PW-1 Munna got himself present in
the witness box and according to him, he
could identify as he knows all the accused. In
his testimony, PW-1 further deposed that on
12.10.2008, his brother Keshav, Ram Kripal,
Ram Babu and Smt. Ram Kunwar had gone to
fetch water and at that point of time, the
accused herein being Rajesh, Ashok, Udai
Bhan and Chhuttan indulged in fighting,
pursuant whereto injuries were sustained by
them and after two days, he received an
information through his nephew Vivek, who
happens to be PW-2 and another nephew
Pappu that the accused Babu, Kishori and
Rajju had consigned their house on flames and
accordingly, he came back to his house on
13.10.2008 and thereafter got the FIR lodged.
In the statement, the occurrence of consigning
the house to flames was assigned 8-9 P.M, in
the night on 12.10.2008. According to PW-1
Munna, he is a driver, who drives the vehicle
of one Sri Aridam Singh. Thus the PW-1 is
not an eye-witness to the said occurrence.

13. As PW-2, Vivek son of Keshav
presented himself. According to him on the
date of the incident, he was 11-12 years
studying in Class-IX and he had also narrated
the fact that on 10.10.2008, beating was also
administered to his relatives by the accused
and on 12.10.2008, the accused set the house
in flames at 9:30 in the night and the said act
was done by the Kishori Sahu, Babu Mali and
Rajju Mali and he had given information to his
uncle PW-1 after two days. In his cross, PW-2
Vivek has deposed that there is a police station
Khanna situate over there, whereat one S.I.
and five to six constables are there and when
the alleged incident took place, and the police
station was just 100 steps from his house and
towards the western side. The house of PW-1
is situate just 20 steps.

14. PW-3 Constable being Ram
Bharose Tripathi also presented himself as
prosecution witness and he proved the
prosecution case, as he was the person, who
got registered the FIR.

15. S.I. Balbir Singh (I.O.) presented
himself as PW-4, who took the statements
of the prosecution and on the pointing out
of the prosecution witnesses, he prepared
the site plan and recorded the statements of
prosecution witnesses.

16. As per the prosecution case, PW1, who happens to be Munna Singh is the
678 INDIAN LAW REPORTS ALLAHABAD SERIES
informant, however, he is not present when
the alleged offence was said to have been
committed, as he was on a different place
driving the vehicle while working as a
driver. However, according to him, he
received information regarding the incident
of fire on 13.10.2008 from PW-2 Vivek
and Pappu through telephonic call, whereat
the accused Babu, Kishori and Rajju were
assigned the roles of consigning the house
on flames. According to him, he after
finishing his work came back to the village
and straightway went to the site of
occurrence and thereafter proceeded to P.S.
Khanna and got the FIR registered on
13.10.2008 at 18:50 hours.

17. Now, a question arises as to why
the FIR was not lodged on 12.10.2008 itself
by
the
prosecution
witnesses,
who
witnessed the said occurrence. As per the
statement of PW-2 Vivek, he in his
testimony has deposed that the fire took
place on 12.10.2008 in the night at 9 to
01:30
hours.
Further
in
the
crossexamination, PW-2 Vivek has himself
further deposed that a police chawki is
already stationed wherein there is one S.I.
and five to six police constables and on the
date of the occurrence, it was 100 steps
from his house. No plausible explanation
has been offered by PW-2 Vivek as to why
the FIR was lodged on 13.10.2008 at 18:50
hours, i.e, on the next day after enormous
delay. It has also come on record that the
Police Station is quite near and further the
fact that there was no obstruction or
hindrance so available or the approach
towards the Police Station was not
accessible.

18. Another factor, which needs to be
considered at this stage is the fact that in
the
deposition
of
PW-1
Munna,
information regarding the consigning of the
house on flames was made available to the
PW-1 Munna by Pappu also. However,
Pappu was not presented as prosecution
witness and thus neither his examinationin-chief
nor
cross-examination
was
conducted. The said factor also assumes
significance, as at that relevant point of
time, PW-2 Vivek was studying in ClassIX and he happened to be an interested
witness, vis-a-vis commission of crime, so
much so it is quite implorable or
inconceivable that if somebody's house is
put on fire, then the aggrieved party would
wait for a day and not promptly lodge the
FIR. It has further come on record that the
Police Station/ chawki in question was just
100 steps from the house of the informant
and thus in all possibilities in case fire
occasioned, then the police would have
come there as they cannot be a mute
spectator in this regard.

19. Even otherwise, in the FIR the
incident has been shown to have been
committed at 9:30 P.M, on 12.10.2008 as
whereas in the statement of PW-1, Munna,
the occurrence has been shown to be at 8 to
9 in the night on 12.10.2008. No
independent witness whatsoever appeared
as a prosecution witnesses so as to prove
that the accused had consigned the house of
the informant on flames.

20. Moreover records further reveal
that though the FIR had been lodged
against the accused O.P. no.2 Kishori,
accused O.P. no.3 Rajju Mali and accused
O.P. no.4 Babu Mali. However, perusal of
the statement of PW-1 Munna shows that
accused opposite parties 2 to 8 have been
shown to have committed crime. It has also
come on record that the accused opposite
party no.5 Udaibhan, accused O.P. no.6
Chhuttan, accused O.P. no.7 Rajesh and
accused O.P. no.8 Ashok were already in
9 All. Munna Vs. State of U.P. & Ors.
679
judicial custody at the time when the
alleged offence took place. No explanation
whatsoever has been tendered by the
prosecution, as to why their names surfaced
and put to trial in that regard. The said
aspect is of great significance as PW-2
Vivek was an eye-witness to the said
incident and so far as Pappu is concerned,
who is said to be an eye-witness did not
enter into the witness box.

21. Looking into the said factors, the
issue of delay in lodging of the FIR also
assumes significance as normally, delay in
lodging of the FIR does not ipso facto
becomes a ground to demolish the
prosecution case, however, it is one of the
indices which itself is to be taken into
consideration and assumes significance in
the light of the other factors or ingredients
in order to put the nail in the coffin for
conviction.

22. The Hon'ble Apex Court on the
question of delay in lodging the FIR and its
impact upon the prosecution theory in the
case of Thulia Kali Vs. The State of Tamil
Nadu, (1972) 3 SCC 393, has observed as
under:-

"The object of insisting upon
prompt lodging of the report to the police
in respect of commission of an offence is to
obtain early information regarding the
circumstances in which the crime was
committed, the names of the actual culprits
and the part played by them as well as
names of eye witnesses present at the scene
of occurrence. Delay in lodging the first
information report quite often results in
embellishment which is a creature of
afterthought. On account of delay, the
report not only gets bereft of the advantage
of spontaneity, danger creeps in of the
introduction
of
coloured
version,
exaggerated account or concocted story As
a result of deliberation and consultation. It
is, therefore, essential that the delay in the
lodging of the first information report
should be satisfactorily explained."

23. In the case of Apren Joseph Alias
Current Kunjukunju and others Vs. The
State of Kerala, (1973) 3 SCC 114, the
Hon'ble Apex Court has observed as under:

"11. Now first information report
is a report relating to the commission of an
offence given to the police and recorded by
it under Section 154, Cr. P. C. As observed
by the Privy Council in K. E. v. Khwaja, the
receipt and recording of information report
by the police is not a condition precedent to
the setting in motion of a criminal
investigation. Nor does the statute provide
that such information report can only be
made by an eye witness. First information
report under Section 154 is not even
considered a substantive piece of evidence.
It can only be used to corroborate or
contradict the informant's evidence in
court. But this information when recorded
is the basis of the case set up by the
informant. It is very useful if recorded
before there is time and opportunity to
embellish or before the informant's memory
fades.
Undue unreasonable
delay
in
lodging the F. I. R., therefore, inevitably
gives rise to suspicion which puts the court
on guard to look for the possible motive
and the explanation for the delay and
consider its effect on the trustworthiness or
otherwise of the prosecution version. In our
opinion, no duration of time in the abstract
can be fixed as reasonable for giving
information of a crime to the police, the
question of reasonable time being a matter
for determination by the court in each case.
Mere delay in lodging the first information
report with the police is, therefore, not
necessarily, as a matter of law, fatal to the
680 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution. The effect of delay in doing so
in the light of the plausibility of the
explanation forthcoming for such delay
accordingly must fall for consideration on
all the facts and circumstances of a given
case."

24. In the case of Tara Singh and
others Vs. State of Punjab, 1991 Supp (1)
SCC 536, the Hon'ble Apex Court in
paragraph 4 has observed as under:-

"4. It is well settled that the delay
in giving the FIR by itself cannot be a
ground to doubt the prosecution case.
Knowing the Indian conditions as they are
we 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 griefstricken 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 to the police station for giving
the report. Of course the Supreme Court as
well as the High Courts have pointed out
that 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 are
cautioned to scrutinise 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."

25. In the case of Meharaj Singh Vs.
State of U.P., (1994) 5 SCC 188, the
Hon'ble Apex Court has observed as
under:-

"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose
of appreciating the evidence led at the trial.
The object of insisting upon prompt lodging
of the FIR is to obtain the earliest
information regarding the circumstance in
which the crime was committed, including
the names of the actual culprits and the
parts played by them, the weapons, if any,
used, as also the names of the eyewitnesses,
if any. Delay in lodging the FIR often
results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also
creeps in of the introduction of a coloured
version or exaggerated story. With a view
to determine whether the FIR was lodged at
the time it is alleged to have been recorded,
the courts generally look for certain
external checks. One of the checks is the
receipt of the copy of the FIR, called a
special report in a murder case, by the
local Magistrate. If this report is received
by the Magistrate late it can give rise to an
inference that the FIR was not lodged at
the time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
9 All. Munna Vs. State of U.P. & Ors.
681
FIR along with the dead body and its
reference in the inquest report. Even
though the inquest report, prepared under
Section 174 CrPC, is aimed at serving a
statutory function, to lend credence to the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above,
the FIR has lost its value and authenticity
and it appears to us that the same has been
'ante-timed and had not been recorded till
the inquest proceedings were over at the
spot by PW 8."

26. In the case of Thanedar Singh
Vs. State of M.P., (2002) 1 SCC 487, the
Hon'ble Apex Court has observed as
under:-

"6. The High Court was of the
view that the judgment of the Trial Court
was perverse and its approach was
unreasonable. The first comment made by
the High Court was that the Trial Court did
not assign any reason for disbelieving the
FIR. The High Court found no infirmity in
the FIR having regard to the fact that the
part played by the accused appellant was
specifically mentioned in the FIR. But, the
High Court missed to note the crucial facts
adverted to in Para 5.2 (supra) which cast
a serious doubt on the correctness of the
FIR, especially the time and date of its
recording. The learned Sessions Judge
particularly adverted to the fact that the
prosecution did not produce the original
record of police station relating to the
receipt and despatch of FIR inspite of an
order passed to that effect. Though the
Trial Judge was not careful enough in
recording a specific finding that the
prosecution failed to clear the doubt
regarding the date and time of recording
the FIR, in sum and substance, that is what
the learned Trial Judge purported to say.
The observations of the Trial court were
not properly understood by the High Court
when it proceeded on the basis at
paragraph 12 that the Trial court found
fault with the delay in lodging the
complaint at 9 A.M. on the next morning.
But, it is to be noted that nowhere in the
judgment, the trial court observed that the
complaint
having
been
lodged
and
recorded at 9A.M. next morning, that itself
would tantamount to delay."

27. Yet, in the case of P. Rajagopal
and others Vs. State of Tamil Nadu
(2019) 5 SCC 403, the Hon'ble Apex Court
in paragraph 12 has held as under:-

12. Normally, the Court may
reject the case of the prosecution in case of
inordinate delay in lodging the first
information
report
because
of
the
possibility of concoction of evidence by the
prosecution. However, if the delay is
satisfactorily explained, the Court will
decide the matter on merits without giving
much importance to such delay. The Court
is duty-bound to determine whether the
explanation afforded is plausible enough
given the facts and circumstances of the
case. The delay may be condoned if the
complainant appears to be reliable and
without any motive for implicating the
accused falsely.

28. Noticing the underlying principles
of law as laid down in the above noted
682 INDIAN LAW REPORTS ALLAHABAD SERIES
judgments, this Court finds that the incident
of setting ablaze the house of the informant
took place on 12.10.2008, however, the
written complaint, which transformed into
lodging of the FIR was dated 13.10.2008 at
18:05 hours, despite the fact that PW-2
Vivek son of Keshav and Pappu were
present though did not lodge the FIR. There
has been no explanation offered by the
prosecution in lodging the FIR after huge
delay, particularly when the police station
itself was 100 steps from the house of the
informant.

29. The Trial Court has also
considered the provisions contained under
Section 436 IPC, which refers to the penal
provision with regard to mischief by fire or
explosive substance, with intent to destroy
house. The Trial Court has also referred to
the FIR, according to which the informant's
house was completely consigned to flames.
As a matter of fact, the entire prosecution
story also is under cloud as according to the
statement of PW-2 Vivek, he had narrated
the entire fact and a site-plan was also
prepared by the Investigating Officer.
However, as per the site-plan, the point ''A',
which has been crossed is being shown to
have been consigned to flames. This is the
back portion of the house of Keshav as
only part of portion has been shown to be
burnt.

30. The issue can also be seen from
another point of angle also that there has
been no statement made by any of the
prosecution witness as to when any
exercise whatsoever was taken to subdue
the fire and what was the items which got
burnt and at what time, the gate / door was
opened and items recovered either burnt or
not. Even there is no recovery memo or any
inventory so as to suggest as to what type
of damage was done. The same also put a
big question mark over the investigation so
sought to be conducted by the Investigating
Officer. Notably, there were no other
villagers, who could have been independent
witness to have recorded his testimony
regarding alleged commission of crime,
which could have proved the fact as to
whether the accused herein were a part in
commission of offence.

31. Analyzing the present case from
four-corners of law, this Court finds that
the prosecution proceeds on weak footing
as not only there is delay in lodging of the
FIR, but the other indices for linking the
accused for commission of crime is also
lacking, particularly of the fact that there
are major contradictions in the statement of
PW-1 and PW-2 as well as the fact that
Pappu did not appear in the witness-box
and the manner in which investigation has
been done and lastly, but not the least, the
fact that the four accused as discussed
above were in judicial custody, when the
said crime was said to have occasioned.

32. Hence in any view of the matter,
applying the principles of law so culled out
by the Hon'ble Apex Court in the present
case, we find that there is no perversity in
the order of the Trial Court is a possible
view and the testimony of the prosecution
witnesses and the evidences so adduced
therein do not point towards in any manner
whatsoever for conviction of the accused.

33. So far as, the issue of motive is
concerned, the learned Trial Court as
discussed the same while holding that the
same cannot be ipso facto a ground to hold
the accused guilty of commission of crime,
particularly
when
though
allegations
regarding administering of beating upon the
brothers and the family members of the
informant has been made, but no document
9 All. Hanuman & Ors. Vs. State of U.P. & Ors.
683
whatsoever has been produced before the
Court either showing the nature of the
injuries or the lodging of the complaint or
FIR against them. As it is well settled that
enmity emanating as a motive is two-sided
dagger and thus in order to put the motion
of motive for conviction, same is to be
proved beyond doubt also.

34. This Court while bestowing
anxious consideration on the judgment
passed by the Trial Court finds its inability
to interfere in the present proceedings as
according to this Court the view taken by
the Trial Court does not seem to be
suffering from any perversity, and this
Court further finds that there is no other
view ought to be taken, other than the view
so taken by the court below. In the absence
of any perversity or misreading of the
evidences so sought to be adduced by the
prosecution, this Court has no option but to
concur with the judgment of the Trial Court
acquitting the accused herein.

35. Resultantly, present criminal
appeal is dismissed.

36. Records of the present case be
sent back to the concerned court below.
----------
(2022) 9 ILRA 683
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 1767 of 2022

Hanuman & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sachida Nand Tiwari, Sri Murli Dhar
Mishra

Counsel for the Respondents:
C.S.C., Sri Arvind Kumar Srivastava, Sri
Bhaju Ram Prasad Sharma

Civil
Law
-
U.P.
Consolidation
of
Holdings Act (5 of 1954) - Section 48 -
during pendency of the revision u/s 48
of the U.P.C.H. Act, one of the opposite
party, Bhagwan Das, died - however, his
heirs
were
not
substituted
in
the
revision - the revision was allowed and
the matter was remanded back to the
Consolidation
Officer
to
decide
the
objection afresh - Held - Explanation (3)
of the Section 48 of the U.P.C.H. Act
states that the Deputy Director of
Consolidation
has
wide
power
to
appreciate the evidence etc. & in place
of
remanding
the
matter
back,
he
himself can decide the revision on merit
after
affording
the
opportunity
of
hearing
to
both
the
parties
in
accordance of law - Also, allowing the
revision without substituting the legal
heirs of deceased party in the revision
makes the revisional order illegal -
matter remanded back to the D.D.C. to
decide the revision in accordance with
law after substituting the legal heirs of
deceased opposite party (Bhagwan Das)
(Para 8, 9, 12)

Allowed. (E-5)

List of Cases cited:

1.
Chandrama
Vs
Deputy
Director
of
Consolidation Ballia & ors. (134) RD 555

2. Gajjoo Vs Deputy Director of Consolidation &
ors. 1995 R.D. 231

3.
Bansi
Kanhai
Vs
Deputy
Director
of
Consolidation U.P. Lucknow & ors. AIR 1967
Allahabad 592

(Delivered by Hon'ble Chandra Kumar
Rai, J.)