# Nizamuddin @ Bhindi v. State of U.P

- **Citation:** (2025) 11 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-28
- **Case number:** Criminal Appeal No. 2105 of 1986
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nizamuddin-bhindi-v-state-of-u-p-52772
- **Pages:** 10

## Headnote

Benefit of doubt; Indian penal Code,
1860-sec 307-Appellant convicted u/s 307,
Indian Penal Code - seven years rigorous
imprisonment-allegation that appellant came
and fired upon PW-2 from behind -fire shot hit
on his back -appellant fled away from the spotmaterial contradiction between the statement of
PW-2 (injured)- material contradiction between
genesis of prosecution case- prosecution has
not proved its case beyond reasonable doubtcontrary - against the weight of evidenceentitled to the benefit of doubt-order of
conviction and sentence recorded is set asideAppeal allowed. (E-9)

Case Law Cited

## Text

11 All. Nizamuddin @ Bhindi Vs. State of U.P.
171
was clarified that the lease deed executed
and registered on 18.12.2018 is valid for a
period of 29 years with effect from the date
of
execution
and
registration
i.e.
18.12.2018. The ground on which the land
document was rejected was that it did not
meet the requirement in terms of Clause 4
(v) (a) of the brochure which provides that
the land should be available with the
applicant as on the date of application and
should have minimum lease of 19 years and
11 months from the date or after the date of
advertisement but not later than the date of
application, whereas the lease deed dated
18.l2.2018 submitted by the petitioner
under the head description of the leased
land in Mauza Rampur mentioned that the
period of lease will be valid for 29 years
after getting the licence from I.O.C.

26. The said objection was repelled by
the Patna High Court and it held that the
Oil Company has erred in construing the
registered instrument dated 18.12.2018
inasmuch as it has filed to look into the
complete contents of the lease deed which
clearly provides that the lease deed had
been made from the same date for a period
of 29 years on the annual rent of
Rs.95,000/- and the lessee has taken over
the possession of the land.

27. In the instant case, there is no such
rectification deed as was in the case of
Shankar Kumar Bhagat (supra) relied
upon by the learned counsel for the
petitioner. In the instant case, Clause-10 of
the lease deed which has been relied upon
by the Oil Company is unambiguous and
clearly stipulates that in the event, the
petrol pump is not allotted, the lease deed
would
stand
cancelled
automatically,
therefore, the law enunciated in the
judgement of Shankar Kumar Bhagat
(supra) does not come to rescue the
petitioner.

28. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly dismissed with no order as to
costs.
----------
(2025) 11 ILRA 171
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2025

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 2105 of 1986

Nizamuddin @ Bhindi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellants:

Counsel for the Respondents:

Issue for consideration
Matter pertains to benefit of doubt.

Headnotes
Benefit of doubt; Indian penal Code,
1860-sec 307-Appellant convicted u/s 307,
Indian Penal Code - seven years rigorous
imprisonment-allegation that appellant came
and fired upon PW-2 from behind -fire shot hit
on his back -appellant fled away from the spotmaterial contradiction between the statement of
PW-2 (injured)- material contradiction between
genesis of prosecution case- prosecution has
not proved its case beyond reasonable doubtcontrary - against the weight of evidenceentitled to the benefit of doubt-order of
conviction and sentence recorded is set asideAppeal allowed. (E-9)

Case Law Cited
1. Yogesh Singh Vs. Mahabeer Singh & Ors.,
(2017) 11 SCC 195
172 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Indian Penal Code

List of Keywords
Material contradiction, not proved its case
beyond reasonable doubt, the benefit of doubt.

Appearances of parties
Counsel for Appellant(s) : Amar Saran, Ajay
Kumar Counsel for Respondent(s) : A.G.A.

(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. Present Criminal Appeal has been
preferred under Section 374 of Code of
Criminal Procedure (hereinafter referred as
"Cr.P.C.") against the judgment and order
dated 5.8.1986 passed by Special Judge,
Mathura in Session Trial No. 39 of 1986,
whereby trial court convicted the appellant
under Section 307, Indian Penal Code
(hereinafter referred as "I.P.C.") and
sentenced him under Section 307, I.P.C. to
undergo
seven
years
rigorous
imprisonment.

2. Brief facts of the case giving rise to
the present appeal is that the first
information report dated 26.11.1985 has
been lodged by Mustaq Ahmad (PW-1)
alleging that on 26.11.1985 Mohd. Shariq
(PW-2/injured) had gone to the house of
the Executive Engineer (PWD) at about
4.00 p.m. situated in Veterinary College,
Mathura by a scooter; when they were
coming back from the house of Executive
Engineer, tire of scooter had become
punctured. At the same time, present
appellant being a driver of Executive
Engineer (PWD) came by Government
vehicle. After signalling by PW-2 Mohd.
Shariq, the appellant stopped the jeep and
Mohd. Shariq asked for some help from the
appellant on which the appellant abused
him. There was exchange of slapping
between PW-2 Mohd. Shariq and the
appellant. At the time of repairing the
puncture of scooter, the appellant came and
fired upon Mohd. Shariq (PW-2) from
behind due to which the fire shot hit on his
back and the appellant fled away from the
spot.
PW-1
Mustaq
Ahmad
(first
informant) brought the injured to the
hospital and admitted him.

3. After lodging the F.I.R. at 6.45 p.m.
on 26.11.1985, S.I. Satyaveer Singh (PW4) started the investigation and took blood
stained and plain earth from the place of
incident and taken into possession of the
scooter and blood stained clothes of the
injured and prepared recovery memos (ExKa-4, Ex-Ka-5 and Ex-Ka-6) respectively.
After collecting the injury report, discharge
summary of treatment of injured and
recording the pre-summoning evidence,
charge sheet, (Ex Ka-10) has been
submitted against the appellant before the
Magistrate having jurisdiction.

4. On committal, as the case is
exclusively triable by the Sessions Judge,
charge has been framed against the
appellant on 4.3.1986. The appellant denied
the charges and demanded trial.

5. To substantiate the charge against
the appellant, the prosecution examined as
many as four witnesses namely, PW-1
Mustaq Ahmad (first informant/eye witness
of the incident), PW-2, Mohd. Shariq
(injured), PW-3 Dr. Rajesh Kumar Singh
(who conducted medical examination of the
injured)
and
PW-4
Satyaveer
Singh
(Investigating Officer).

6. After examination of prosecution
witnesses, trial court recorded the statement
of the appellant under Section 313, Cr.P.C.
wherein he stated that Mohd. Shariq (PW2) had enmity with the appellant because
11 All. Nizamuddin @ Bhindi Vs. State of U.P.
173
the
appellant
had
not
repaired
the
Government Vehicle in the Garage of PW2.

7. Before the trial court, learned
counsel for the appellant argued that the
manner in which the injury was caused to
the injured Mohd. Shariq (PW-2) had not
been proved by the prosecution and there
were
material
inconsistency
in
the
statement of Mohd. Shariq (PW-2). It was
also argued that the medical evidence is
inconsistent with the ocular evidence. The
Investigating Officer (PW-4) had not sent
the blood stained clothes of the injured as
well as blood stained earth for chemical
examination. It was further argued that the
owner of tire puncture shop Munna and
other witnesses had not been produced by
the prosecution.

8. Learned trial court after referring
the evidence of Mohd. Shariq (PW-2
injured) as well as S.I. Satyaveer Singh
(PW-4) found that there is no material
inconsistency between the statements of
PW-2 and PW-4 and further found that the
prosecution has successfully proved its case
against the appellant beyond reasonable
doubt and convicted and sentenced the
appellant.

9. Learned counsel for the appellant
submitted that the trial court has passed the
impugned judgment and order without
appreciating the evidence in right perspective.
It is further argued that there is material
inconsistency between the statement of PW-2
and PW-4. Firstly; PW-2 stated that he
brought the punctured scooter at the shop of
Munna Mistri, secondly; he stated in his cross
examination that he had taken the punctured
wheel only by a rickshaw for repairing. It is
further argued that as per prosecution case,
which was proved by PW-1, the scooter was
punctured at the time of returning from the
house
of
Executive
Engineer
(PWD).
However, PW-1 (first informant) has been
declared hostile, but proved the F.I.R. (ExKa-1) whereas PW-2 (injured) stated that his
scooter was punctured when he was on the
way to meet the Executive Engineer (PWD).
The impugned judgment and order has been
passed against the weight of evidence as well
as on the basis of conjectures. The
prosecution has failed to prove the place of
incident. It is further submitted that the
Investigating Officer has not sent the blood
stained cloths as well as blood stained earth
for chemical examination. The impugned
judgment and order has been passed on the
basis of solitary evidence of PW-2 Mohd.
Shariq,
which
is
wholly
unreliable.
Therefore, the present appeal is liable to be
allowed.

10.
Learned
A.G.A.
vehemently
opposed the arguments of the appellant and
supported the judgment and order passed by
the trial court and submits that the
prosecution has proved its case beyond
reasonable doubt against the appellant. It is
further argued that there is no material
inconsistency between the testimony of PW-2
and PW-4. It is further argued that mere non
sending blood stained cloths as well as blood
stained earth for chemical examination is not
made the prosecution case fatal. Hence, the
criminal appeal deserves no merit and is
liable to be dismissed.

11. Heard Shri Ajay Kumar, learned
counsel for the appellant and Shri Manoj
Kumar Singh learned A.G.A. for the State
and perused the material available on
record.

12. Learned counsel for the appellant
argued that the injured Mohd. Sharique
(PW-2) sustained injuries on his back at
174 INDIAN LAW REPORTS ALLAHABAD SERIES
about 5.45 p.m. at the shop of tyre Mistri.
As per medical examination report wherein
entry or exit wound were present, none has
identified the assailants after referring the
following evidence:-

(a) PW-2 was running a Garage,
who repaired the Government vehicles and
due to this reason he had gone to meet the
Higher Officials of PWD and complained
that the appellant had not wanted to repair
the Government vehicle on his garage;

(b)
There
is
material
contradiction between the statement of PW2 (injured), firstly, he stated in his chief
examination that prior to reaching the
house of Executive Engineer (PWD),
scooter was punctured and incident of
altercation was also taken place and when
he was returning from the PWD office, the
incident was taken place; secondly; he
stated in his cross examination that he had
not reached the house of Executive
Engineer and on the way to house of
Executive Engineer, his scooter was
punctured and incident of altercation as
well as firing were taken place;

(c)
There
is
material
contradiction
between
genesis
of
prosecution case as per the F.I.R. When the
injured and first informant were returning
from the house of Executive Engineer
(PWD), incident of altercation as well as
firing were taken place. Whereas PW-2
firstly, in his chief examination stated that
prior to reaching the house of Executive
Engineer (PWD), scooter was punctured
and incident of altercation was taken place
and when he was returning from the PWD
office, the incident was taken place
whereas in his cross examination, he stated
that he had not reached the house of
Executive Engineer and on the way to
house of Executive Engineer, his scooter
was punctured and incident of altercation
as well as firing were taken place;

(d) In the first information report
(Ex-Ka-9), there is a genesis that they
brought the punctured scooter to the shop
of Munna Mistri where incident of fire shot
was taken place whereas Mohd. Sharique
(PW-2/injured) stated that he brought the
wheel of punctured scooter for repairing
and he had not brought the whole scooter.
The incident of fire shot was taken place
when he was fitting the wheel in the
scooter;

(e) As per genesis of F.I.R., the
incident took place at the shop of Munna
Mistri whereas PW-2 stated in his crossexamination that the incident was taken
place at the time of fitting wheel in the
scooter; where scooter was punctured;

(f) As per PW-2 as stated in his
chief examination prior to main incident of
fire shot, he was returning from the house
of Executive Engineer; whereas in his
cross-examination he stated that he had not
reached the house of the Executive
Engineer on that day.

13. Before considering the respective
arguments of both the parties it is apposite
to consider the entire prosecution evidence.

14. Mustaq Ahmad (PW-1), who has
been declared hostile by the prosecution
stated in his chief examination that he was
present at the place of incident and heard
the fire shot and injured told him that he
was Bhindi (appellant). He stated in his
cross examination that it is true that he was
going along with the injured by a scooter
and tire of scooter was punctured. Mohd.
Shariq (PW-2) asked the appellant to
brought the scooter through jeep.

After analysing the evidence of PW-1,
there is no dispute with regard to lodging of
11 All. Nizamuddin @ Bhindi Vs. State of U.P.
175
F.I.R. promptly (within one hour of the
incident by PW-1) and FIR (Ex-Ka-1)
proved
wherein
the
genesis
of
the
prosecution case is that when they were
returning from the house of Executive
Engineer (PWD) situated in the campus of
Veterinary College, the incident was taken
place.

15. Mohd. Shariq (PW-2), who is
injured, stated in his chief examination that
at 6.30 p.m. on 26.11.1985 his scooter got
punctured
nearby
Veterinary
College,
Mathura and he wanted the help of
appellant,
who
reached
thereby
Government Jeep, but he did not stop the
vehicle. After some distance he returned
and some altercation took place between
the injured and the appellant, thereafter, he
went away. After repairing of scooter he
went to PWD office. He returned from
PWD office at about 6.00 p.m. and he
reached near the police line. After some
time, appellant reached there and shot fire
upon the injured from the distance of 4-5
feet, which hit his back and exit wound in
his chest. Mustaq (PW-1) and Liyakat had
seen the incident and brought the injured to
District Hospital, thereafter Methodist
Hospital where he was admitted for 10
days.
Thereafter,
admitted
in
Indian
Medical Institute for four months and he
was on cot and there was difficulty to
move. The evidence was recorded through
commission in the house of the injured. He
was unable to sit.

16.
PW-2
stated
in
his
cross
examination that scooter got punctured
between District Jail
and Veterinary
College, Mathura. The punctured repaired
at about 3.15 p.m. and reached the place
where scooter was got punctured. Mohd.
Shariq (PW-2) further stated that when he
asked for help to appellant to bring the
punctured scooter by jeep, the appellant
abused him and at this time the injured
slapped twice to the appellant. He brought
the wheel of scooter for repairing of
puncture. When he was installing the wheel
in scooter, the appellant along with some 2
or 3 unknown persons came and some
altercation was taken place.

17. PW-2 further stated in his cross
examination that at about 2.30 p.m. he had
gone to house of Executive Engineer
(PWD) and his tire of scooter was
punctured at the road between District Jail
and Veterinary College because he was
residing in the campus of Veterinary
College. He returned from the place of tire
punctured to Police Line. At about 3.15
p.m. the punctured was repaired and he
brought repaired wheel of scooter at the
place where scooter was punctured. When
he was installing the wheel in the scooter,
the appellant came from the side of
Veterinary College and at about 4.00-4.30
p.m., some altercation took place. At that
time 2-3 unknown persons were present
along with the appellant.

18. PW-2 further stated in his crossexamination that after fire shot, he
identified the appellant after turning out
and saw the country made pistol in his
hand. He reached the District Hospital at
about 7.00-7.30 p.m., which was far from
the place of incident at about 2-3 Km. Prior
to the incident, there is no enmity with the
appellant. He further stated that he used to
meet the Executive Engineer (PWD) in
interval of 2-3 days. On the date of
incident, he had not able to reach the house
of Executive Engineer. After 10 or 20
minutes of the incident, Mustaq (PW-1)
brought him to the hospital by a rickshaw
and reached there at 7.00 and 7.30 p.m.
Thereafter refereed to Methodist Hospital.
176 INDIAN LAW REPORTS ALLAHABAD SERIES

19.
Defence
asked
following
suggestions from this witness; it is wrong
to say that he was not present at the place
of incident and no incident was occurred; it
is wrong to say that the incident of fire shot
is not taken place at the place of incident,
but it was occurred at another place; it is
wrong to say that he did not know, who
shot fire.

After
having
gone
through
the
evidence of PW-2 following facts clearly
emerged;

(a) PW-2 was running a Garage,
who repaired the Government vehicles and
due to this reason he had gone to meet the
Higher Officials of PWD and complained
that the appellant had not wanted to repair
the Government vehicle on his garage;

(b)
There
is
material
contradiction between the statement of PW2 (injured), firstly, he stated in his chief
examination that prior to reaching the
house of Executive Engineer (PWD),
scooter was punctured and incident of
altercation was also taken place and when
he was returning from the PWD office, the
incident was taken place; secondly; he
stated in his cross examination that he had
not reached the house of Executive
Engineer and on the way to house of
Executive Engineer, his scooter was
punctured and incident of altercation as
well as firing were taken place;

(c)
There
is
material
contradiction
between
genesis
of
prosecution case as per the F.I.R. When the
injured and first informant were returning
from the house of Executive Engineer
(PWD), incident of altercation as well as
firing were taken place. Whereas PW-2
firstly, in his chief examination stated that
prior to reaching the house of Executive
Engineer (PWD), scooter was punctured
and incident of altercation was taken place
and when he was returning from the PWD
office, the incident was taken place
whereas in his cross examination, he stated
that he had not reached the house of
Executive Engineer and on the way to
house of Executive Engineer, his scooter
was punctured and incident of altercation
as well as firing were taken place;

(d) In the first information report
(Ex-Ka-9), there is a genesis that they
brought the punctured scooter to the shop
of Munna Mistri where incident of fire shot
was taken place whereas Mohd. Sharique
(PW-2/injured) stated that he brought the
wheel of punctured scooter for repairing
and he had not brought the whole scooter.
The incident of fire shot was taken place
when he was fitting the wheel in the
scooter;

(e) As per genesis of F.I.R., the
incident took place at the shop of Munna
Mistri whereas PW-2 stated in his crossexamination that the incident was taken
place at the time of fitting wheel in the
scooter; where scooter was punctured;

(f) As per PW-2 as stated in his
chief examination prior to main incident of
fire shot, he was returning from the house
of Executive Engineer; whereas in his
cross-examination he stated that he had not
reached the house of the Executive
Engineer on that day.

20. PW-3, Dr. Rajesh Kumar Singh,
who examined the injuries of Mohd. Shariq
(PW-2) on 26.11.1985 at 6.45 p.m. and
proved medical report (Ex-Ka-2) stated in
his chief examination that the injured was
admitted for the gun shot injury in
emergency department and entry wound
was at his spinal bone and exit wound was
existed on the left side of chest near the 3rd
and 4th ribs, which were found fresh when
he operated the injured. He found that some
11 All. Nizamuddin @ Bhindi Vs. State of U.P.
177
bleeding was present in the chest and on
7.12.1985, injured was referred for All
India Medical Institute for treatment of
legs.

21.
PW-3
stated
in
his
cross
examination that the fire was shot from
nearby and no bleeding was present. It is
significant that the PW-2 (injured) was
brought to the hospital by PW-1 at
emergency department of District Hospital
on 26.11.1985 at 6.00 p.m. within 15
minutes of the incident, whereby the
injured was referred to Medical College,
Agra at once without conducting any
medical.

22.
S.I.
Satyaveer
Singh
(PW4/Investigating Officer) was examined by
the
prosecution,
who
proved
the
prosecution
documents
in
his
chief
examination and proved the recovery
memo of blood stained earth and simple
earth, seizure of scooter of the injured and
cloths of the injured and also proved the
F.I.R. and General Diary as secondary
evidence.

23.
PW-4
stated
in
his
cross
examination that blood stained clothes of
the injured was taken in which no entry or
exit hole was found. He did not send the
blood stained earth and simple earth to FSL
for examination. No pellets was recovered
from the place of incident. He had not
recorded the statements of Munna Mistri,
Rakesh, Vijay, eye witnesses of the
incident and also did not took sign of the
aforesaid witnesses upon the recovery
memos. One suggestion was asked to this
witness that it is wrong to say that father of
the injured is an advocate and he has
submitted charge sheet under influence of
his father.

24. In Yogesh Singh Vs. Mahabeer
Singh & Ors., (2017) 11 SCC 195, the
Supreme Court observed:-

"15. It is a cardinal principle of
criminal jurisprudence that the guilt of the
accused must be proved beyond all
reasonable doubts. However, the burden on
the prosecution is only to establish its case
beyond all reasonable doubt and not all
doubts. Here, it is worthwhile to reproduce
the observations made by Venkatachaliah,
J., in State of U.P. v. Krishna Gopal,
(1988) 4 SCC 302: (SCC pp. 313-14, paras
25-26)

"25. ... Doubts would be called
reasonable if they are free from a zest for
abstract speculation. Law cannot afford
any favourite other than truth. To constitute
reasonable doubt, it must be free from an
overemotional response. Doubts must be
actual and substantial doubts as to the guilt
of the accused person arising from the
evidence, or from the lack of it, as opposed
to mere vague apprehensions. A reasonable
doubt is not an imaginary, trivial or a
merely possible doubt; but a fair doubt
based upon reason and common sense. It
must grow out of the evidence in the case.

26. The concept of probability,
and the degrees of it, cannot obviously be
expressed in terms of units to be
mathematically enumerated as to how
many of such units constitute proof beyond
reasonable doubt. There is an unmistakable
subjective element in the evaluation of the
degrees of probability and the quantum of
proof. Forensic probability must, in the last
analysis, rest on a robust common sense
and, ultimately on the trained intuitions of
the judge. While the protection given by the
criminal process to the accused persons is
not to be eroded, at the same time,
uninformed legitimization of trivialities
178 INDIAN LAW REPORTS ALLAHABAD SERIES
would make a mockery of administration of
criminal justice."

[See also Krishnan v. State,
(2003) 7 SCC 56; Valson v. State of
Kerala, (2008) 12 SCC 24 and Bhaskar
Ramappa Madar and Ors. v. State of
Karnataka, (2009) 11 SCC 690].

16.Another golden thread which
runs through the web of the administration
of justice in criminal cases is that if two
views are possible on the evidence adduced
in the case, one pointing to the guilt of the
accused and the other to his innocence, the
view which is favourable to the accused
should be adopted. (Vide Kali Ram v. State
of H.P., (1973) 2 SCC 808; State of
Rajasthan v. Raja Ram, (2003) 8 SCC 180;
Chandrappa v. State of Karnataka, (2007)
4 SCC 415; Upendra Pradhan v. State of
Orissa, (2015) 11 SCC 124 and Golbar
Hussain v. State of Assam and Anr., (2015)
11 SCC 242).

17.However, the rule regarding
the benefit of doubt does not warrant
acquittal of the accused by resorting to
surmises,
conjectures
or
fanciful
considerations, as has been held by this
Court in the case of State of Punjab v.
Jagir Singh, (1974) 3 SCC 277: (SCC pp.
285-86, para 23)

"23. A criminal trial is not like a
fairy tale wherein one is free to give flight
to one's imagination and fantasy. It
concerns itself with the question as to
whether the accused arraigned at the trial
is guilty of the offence with which he is
charged. Crime is an event in real life and
is the product of interplay of different
human emotions. In arriving at the
conclusion about the guilt of the accused
charged with the commission of a crime,
the court has to judge, the evidence by the
yardstick of probabilities, its intrinsic
worth and the animus of witnesses. Every
case in the final analysis would have to
depend upon its own facts. Although the
benefit of every reasonable doubt should be
given to the accused, the courts should not
at the same time reject evidence which is ex
facie trustworthy, on grounds which are
fanciful or in the nature of conjectures."

18. Similarly, in Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2
SCC 793, V.R. Krishna Iyer, J., stated thus:
(SCC p. 799, para 6)

"6... The cherished principles or
golden thread of proof beyond reasonable
doubt which runs through the web of our
law should not be stretched morbidly to
embrace every hunch, hesitancy and degree
of doubt. The excessive solicitude reflected
in the attitude that a thousand guilty men
may go but one innocent martyr shall not
suffer is a false dilemma. Only reasonable
doubts belong to the accused. Otherwise
any practical system of justice will then
break down and lose credibility with the
community."

29. It is well settled in law that
the minor discrepancies are not to be given
undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution evidence. The omission should
create
a
serious
doubt
about
the
11 All. Nizamuddin @ Bhindi Vs. State of U.P.
179
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions which materially affect the
case of the prosecution but not every
contradiction or omission. (See Rammi Vs.
State of M.P., (1999) 8 SCC 649; Leela
Ram Vs. State of Haryana, (1999) 9 SCC
525; Bihari Nath Goswami Vs. Shiv Kumar
Singh, (2004) 9 SCC 186; Vijay Vs. State of
M.P., (2010) 8 SCC 191; Sampath Kumar
Vs. Inspector of Police, (2012) 4 SCC 124;
Shyamal Ghosh Vs. State of W.B., (2012) 7
SCC 646 and Mritunjoy Biswas Vs.
Pranab, (2013) 12 SCC 796).

30. In C. Muniappan and Others
vs. State of T.N., (2010) 9 SCC 567, this
Court explained the law on this point in the
following manner: (SCC p. 589, para 55)

"55.There
may
be
highly
defective investigation in a case. However,
it is to be examined as to whether there is
any lapse by the IO and whether due to
such lapse any benefit should be given to
the accused. The law on this issue is well
settled that the defect in the investigation
by itself cannot be a ground for acquittal. If
primacy is given to such designed or
negligent investigations or to the omissions
or lapses by perfunctory investigation, the
faith and confidence of the people in the
criminal justice administration would be
eroded. Where there has been negligence
on the part of the investigating agency or
omissions, etc. which resulted in defective
investigation, there is a legal obligation on
the part of the court to examine the
prosecution evidence dehors such lapses,
carefully, to find out whether the said
evidence is reliable or not and to what
extent it is reliable and as to whether such
lapses affected the object of finding out the
truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a
criminal trial. The conclusion of the trial in
the case cannot be allowed to depend solely
on the probity of investigation."

51. Similarly, in Raghubir Singh
Vs. State of U.P., (1972) 3 SCC 79, it was
held that the prosecution is not bound to
produce all the witnesses said to have seen
the
occurrence.
Material
witnesses
considered necessary by the prosecution
for unfolding the prosecution story alone
need be produced without unnecessary and
redundant multiplication of witnesses. In
this connection, general reluctance of an
average villager to appear as a witness and
get himself involved in cases of rival village
factions when tempers on both sides are
running high, has to be borne in mind.

25. The conclusion drawn from the
above
discussion
derived
from
the
appreciation of entire prosecution evidence,
following facts clearly emerged:-

(a) PW-2 was running a Garage,
who repaired the Government vehicles and
due to this reason he had gone to meet the
Higher Officials of PWD and complained
that the appellant had not wanted to repair
the Government vehicle on his garage;

(b)
There
is
material
contradiction between the statement of PW2 (injured), firstly, he stated in his chief
examination that prior to reaching the
house of Executive Engineer (PWD),
scooter was punctured and incident of
altercation was also taken place and when
he was returning from the PWD office, the
incident was taken place; secondly; he
stated in his cross examination that he had
not reached the house of Executive
Engineer and on the way to house of
Executive Engineer, his scooter was
punctured and incident of altercation as
well as firing were taken place;

(c)
There
is
material
contradiction
between
genesis
of
180 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution case as per the F.I.R. When the
injured and first informant were returning from
the house of Executive Engineer (PWD),
incident of altercation as well as firing were
taken place. Whereas PW-2 firstly, in his chief
examination stated that prior to reaching the
house of Executive Engineer (PWD), scooter
was punctured and incident of altercation was
taken place and when he was returning from
the PWD office, the incident was taken place
whereas in his cross examination, he stated that
he had not reached the house of Executive
Engineer and on the way to house of Executive
Engineer, his scooter was punctured and
incident of altercation as well as firing were
taken place;

(d) In the first information report
(Ex-Ka-9), there is a genesis that they brought
the punctured scooter to the shop of Munna
Mistri where incident of fire shot was taken
place whereas Mohd. Sharique (PW-2/injured)
stated that he brought the wheel of punctured
scooter for repairing and he had not brought
the whole scooter. The incident of fire shot was
taken place when he was fitting the wheel in the
scooter;

(e) As per genesis of F.I.R., the
incident took place at the shop of Munna Mistri
whereas PW-2 stated in his cross-examination
that the incident was taken place at the time of
fitting wheel in the scooter; where scooter was
punctured;

(f) As per PW-2 as stated in his chief
examination prior to main incident of fire shot,
he was returning from the house of Executive
Engineer; whereas in his cross-examination he
stated that he had not reached the house of the
Executive Engineer on that day.

26. On the basis of the facts and
circumstances discussed above, an inference
can easily be drawn that the prosecution has not
proved its case beyond reasonable doubt. The
contrary view taken by the trial court is against
the weight of evidence.

27. For all the reasons recorded and
discussed above, I am of the considered view
that the prosecution has failed to prove the
charges for the offence punishable under
Section 307 of I.P.C. against the appellant
beyond reasonable doubt as the evidence on
record does not bring home the guilt of the
appellant beyond the pale of doubt, the
appellant is entitled to the benefit of doubt.
Consequently, the appellant is entitled to be
acquitted of the charge for which he was tried.

28. As a result, present criminal appeal is
allowed. The impugned judgment and order of
conviction dated 05.08.1986 as well as sentence
recorded by the trial court is set aside. The appellant
is acquitted of the charge under section 307 of
I.P.C. for which he has been tried. The appellant is
on bail, therefore, his personal bonds and sureties
are, hereby, discharged. The appellant will fulfill the
requirement of Section 437-A, Cr.P.C. to the
satisfaction of the trial court at the earliest.

29. The trial court records be returned
forthwith with a certified copy of this
judgment for compliance. The office is
further directed to enter the judgment in
compliance register maintained for the
purpose of the Court.
----------
(2025) 11 ILRA 180
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.11.2025

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Jail Appeal No. 2708 of 2012
Connected with Criminal Appeal No. 1574 of
2012

Chandra Pal @ Rachit ...Appellant
Versus
State of U.P. ...Respondent