Phulwa Alias Phool Chandra Kewat vs State Of U.P. on 3 April, 2026

Author: Siddharth

Bench: Siddharth





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2026:AHC:71558-DB
 
 Reserved On :- 24.02.2026  Delivered On:- 03.04.2026  
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL APPEAL No. - 1099 of 1989   
 
   Phulwa Alias Phool Chandra Kewat    
 
  .....Appellant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Manvendra Singh, R.B.Sahai   
 
  
 
Counsel for Respondent(s)   
 
:   
 
A.G.A.   
 
     
 
    
 
 HON'BLE SIDDHARTH, J.

HON'BLE HARVIR SINGH, J.

(Delivered By Hon'ble Siddharth, J.)

1. Heard Sri Sobhit Yadav, learned counsel for appellant; Sri Sushil Kumar Pandey, learned AGA-I for State and perused the material on record and the judgment of the trial court.

2. This criminal appeal has been preferred against the judgment and order of Sessions Judge, Fatehpur in Sessions Trial No. 617 of 1988 dated 04.05.1989; convicting the appellant under Section 302 IPC and sentencing him to imprisonment for life.

3. Briefly stated, the case of the prosecution may be summed up as follows : Accused, Phulwa Kewar is resident of Chaubhayya ka dera while deceased, Nankauna was resident of Chhitwa Ka Dera, hamlets of Arhawal, P.S.- Lalauli, District- Fatehpur. The cattle of the accused had trespassed into the field of Nankauna Kewat about fifteen days before the occurrence. Since Nankauna Kewat had protested, the accused had threatened him. On the night between 8th and 9th September, 1988, P.W.-1, Smt. Dev Kali, wife of Nankauna Kewat, was sleeping at the door of her cattleshed, while her husband was sleeping in front thereof. P.W.-3, Jagat Pal Kewat, brother of P.W.-1, Smt. Dev Kali Devi, then available there was sleeping inside the cattle shed. A lantern was kept alight inside the same. At about mid night, P.W.-1, Smt. Dev Kali Devi, had started feeding her child. In the meanwhile, accused, Phulwa Kewat, having country made pistol, arrived there. Consequently, P.W.-1, Smt. Dev Kali Devi, raised the alarms. After that, accused, Phulwa Kewat fired one shot at Nankauna Kewat, who fell down from the cot and died on the spot. After that P.W.-1, Smt. Dev Kali Devi got Ext. Ka 1, the written report prepared by C.W.-1, Vidya Sagar son of Raghuraj Prasad Kewat of the same village and lodged the same with the local police at 07:45 a.m on 9th September, 1988. Accordingly, P.W.-5, Brij Lal Pandey, then constable-clerk, registered the case at Crime No. 103 of 1988 of the offence under Section 302 IPC against the accused. P.W.-7, Dhan Pal Singh, then Station Officer Lalauli started the investigation. He conducted the inquest upon the dead body of Nankauna Kewat upto 11 a.m on the same day. Thereafter, the autopsy on the dead body of Nankauna Kewat was conducted by P.W.-4, Dr. Narendra Kumar at 03:30 p.m on the next day. In the mean while, the accused surrendered in the court. After interrogating him, P.W.-7, Dhan Pal Singh, concluded the investigation by submitting Ext. Ka 16, the charge sheet against him on 21st September, 1988. Thereafter, the accused was committed to the court of Sessions, by Sri Sanjay Harkauli, Judicial Magistrate, Fatehpur, by his order dated 24th December, 1988.

4. After hearing, the accused was charged for the offence under Section 302 I.P.C he pleaded not guilty and claimed to be tried. He has further contended that, he has been falsely implicated due to groupism between the inhabitants of both the hamlets; that C.W.-1, Vidya Sagar, had written out the written report on the dictation of the Sub-Inspector; that residential house of the victim and the complainant is situated in the nearby village, Dasauli, while his cattle shed alone was on the spot and that, it is just possible that the deceased had over stayed at the cattle shed, while his wife might have remained at their main residential house in village, Dasauli.

5. The prosecution has examined seven witnesses, while the accused being called upon, had adduced the documentary evidence alone. Apart from this, Vidya Sagar being the scribe of Ext. Ka.1, the written report, was examined as a court witness. Accordingly, C.W.-1, Vidya Sagar, has duly proved Ext. Ka.1, the written report of the occurrence while P.W.-1, Smt. Dev Kali Devi, has testified that she had produced Ext. Ka.1, the written report at the police station. P.W.-5, Brij Lal Pandey, the constable-clerk, has proved Ext.Ka.3, the first information report and Ext.Ka.4, the entry no. 6 of the General Diary through which, he had registered the case against the accused at 07:45 a.m on 09th September, 1988. Being suggested, he has denied preclocking of the first information report and that too after the return of the investigating officer from the place of occurrence. P.W.-7, Dhan Pal Singh, then Station Officer, P.S.- Lalauli and the investigating officer of the case, who conducted the inquest, has proved Ext. Ka.5, the inquest report, Ext.Ka.6, the challan laash; Ext. Ka.7, the photonash; Ext.Ka.8, the report to the C.M.O., Ext.Ka.9; the report to the R.I., Police Lines and Ext. Ka.10, the sample of the seal regarding the inquest. He has further proved Ext. Ka.11, the site map, Ext.Ka 14, the memo of recovery of Ext.IV, the blood stained earth and Ext.V, the pure earth and Ext. Ka 15, the memo of entrustment about Ext.I, the lantern and that too after the verification. Since P.W.-2, Kanchan Kewat and P.W.-3, Jagat Pal Kewat, have not supported the case of prosecution, as sustained during the interrogation. P.W.-7, Dhan Pal Singh, has proved Ext. Ka. 13 and Ext. Ka. 12, their statements recorded under Section 161 of the Code of Criminal Procedure, 1973. P.W.-6, Mohd. Hashim, who had escorted the sealed dead body of Nankauna Kewat along with village Chaukidar Surajdin, has filed his affidavit to this effect, that the sealed dead body was kept intact throughout and the same was produced and identified before the doctor conducting the autopsy. P.W.-4, Dr. Narendra Kumar, who conducted the autopsy at 03:30 p.m on 10th September, 1988 has proved the gunshot wounds found on the dead body of Nankauna Kewat and Ext. Ka. 2, the autopsy report. He has also proved Ext. II, the baniyan and Ext. III, the lungi, which were than removed from the dead body and handed over the constable. After that, P.W.-7, Dhan Pal Singh, the Investigating Officer, having testified the absconding of the accused, has duly proved Ext. Ka. 16, the charge sheet dated 21st, September, 1988. Accordingly, it is evident that the case, which was registered against the accused, had resulted into submission of the charge sheet against him after the investigation. On the other hand, the accused has filed and relied upon Ext. Ka. 1, the certified copy of the deed of agreement executed by Babulal Kewat, the elder brother of the deceased, Nankauna Kewat, whereby he had agreed to sell his plot nos. 1201 area 2-10-0, 1203 area 2-10-0, 1205 area 2-10-0 and 1207 area 2-10-0 to Ramraj and Kalloo son of Jagmohan resident of Arhawal for Rs. fifty thousands on 11th August, 1987. Admittedly, Babulal Kewat had neither wife nor any child. It is also undisputed that the deceased, Nankauna Kewat had been challenging the genuineness of the aforesaid agreement of sale and a panchayat had followed in connection thereof. Consequently, the defence has contended that deceased, Nankauna Kewat was done to death in place of Babulal Kewat by his enemies. Obviously, Ext. Kha 1, the certified copy of the agreement of sale dated 11th August, 1987 has been filed to sustain the aforesaid alternative version of the defence.

6. The medical evidence led by the prosecution through P.W.-4, Dr. Narendra Kumar is not in dispute. Accordingly, it is obvious that P.W.-4, Dr. Narendra Kumar, had found following ante-mortem injuries at 03:30 p.m on 10th September, 1988 :-

(i) Gunshot wound of entry 1cm x 1cm x cavity deep of the right side of back about 13 cms below right scapula lower and with margins of wound being inverted and direction of wound being upwards, frontwards and towards left.

(ii) Gunshot wound of exit 1-1/2 cm x 1-1/2 cm x cavity deep on the left side of chest; 8 cms below medialend of left clavicle, with margins of wound being everted.

7. In the internal examination, P.W.-4, Dr. Narendra Kumar, had found that pleura, lungs, heart, right side bronchi and pericardium were lacerated that the chest cavity contained 3/2 litre of blood and that the stomach was empty, while the small intestine was full at places and the large intestine was full on the upper part. In his opinion the death had occurred due to shock and hemorrhage which had resulted from the aforesaid gunshot wound and that too about one and a half day before the autopsy. Being required, he has further opined that, this death was possible even at 1:00 a.m on 9th September, 1988. Being cross-examined, he has disclosed that, there may be a difference of three to four hours either way in the aforesaid duration of the death and that the assailant might have been at a little lower level than the deceased at the time of the actual assault. Since there is nothing very conspicuous to doubt, the independent testimony and the opinion of P.W.-4, Dr. Narendra Kumar, it is logical to conclude that the death of Nankauna Kewat had occurred at any time between 11:30 p.m and 07:30 a.m on the night between 9th and 10th September, 1988.

8. The case of the prosecution about the occurrence, as well as participation of the accused is sought to be established from the statements of P.W.-1, Smt. Dev Kali Devi a/a 30 years w/o Nankauna Kewat, P.W.-2, Kanchan Kewat a/a 60 years s/o Kanhai Kewat r/o Chhituwa-ka-dera at Arhawal and P.W.-3, Jagatpal Kewat a/a 40 years s/o Vishunath Kewat r/o Hintapur, P.S. Lalauli, District- Fatehpur.

9. P.W.-1, Smt. Dev Kali Devi, being the widow of the deceased and the first informant, has testified, that the accused had allowed his cattle to trespass into her field about 15 days prior to the occurrence. Her husband had protested and consequently an altercation had ensued between her husband and the accused and that the accused had then threatened to see her husband within 15 days. Thereafter, she has testified, that the occurrence took place in the month of Bhadon and that too seven months before that she was then lying near the door of her cattle shed while her husband was lying on his cot a little ahead of the cattle shed; that her brother P.W.-3, Jagatpal was then lying over another cot inside the hut of the cattle-shed; that a lantern was then kept alight inside the hut; that P.W.-2, Kanchan Kewat, was then lying over another cot in the eastern corner from her husband, that at about mid-night she got up for feeding her child and then she had witnessed that accused- phulawa, having a tamancha had arrived from one corner, that she had then raised the alarms that phulwa had arrived that thereupon her husband got up and sat over his cot that P.W.-2, Kanchan Kewat and P.W.-3, Jagat Pal Kewat, being awakened had also raised the alarm; that accused having fired at her husband had managed to escape towards the same direction; that she had identified the accused in the light of the lantern available there; that none had chased him to fear; that her husband being injured had fallen down on the ground and had succumbed to the injury; that his blood had fallen there; that due to fear, she could not go for lodging the report; that she got Ext. Ka.1 written by C.W.-1, Vidya Sagar, in the morning. Being cross-examined, she has disclosed that her ancestral house is in the abadi of Dasuali, which is situate at a distance of one mile from her cattle-shed lying in the fields of chhituwa-ka-dera; that her cattle shed consists of tiled room and one hut alone; that P.W.-2, Kanchan Kewat was there due to being share-cropper of Hirwa; that Babulal, elder brother of her husband, was joint in status with him; that he had neither wife nor any child and that the altercation about the cattle of trespass between the accused and her husband took place before her. Being cross-examined about the occurrence, she has further disclosed that the accused had arrived there from the south-east corner; that the tamancha, then held by the accused was of one and a half span; that the accused had fired only one shot at her husband from a distance of 4 or 5 cubits and that too from the right hand; that her husband being injured, had fallen towards west of his cot and that too in a flat position; that her husband was facing east, while the assailant was facing west at the time of assault and that it is wrong to say that she was not present at the time of occurrence. Being confronted with the omission in her written report and the police statement, she has asserted firstly about the naming of the accused in the alarms, secondly about the sitting position of her husband at the time of assault and thirdly about the identification of the accused in the light of the lantern.

10. P.W.-2, Kanchan Kewat, who was then sleeping over a cot underneath a nearby Babool tree for watching the crop, has testified, that the cot of deceased, Nankauna was in the south of his cot at a distance of 20 steps; that the occurrence took place at about 12 p.m or 1 a.m on the said night; that he heard the sound of the fire; that he stood up and rushed towards the Abadi of Chhituwa-ka-dera and that he had not witnessed any one then firing at Nankauna. Consequently, this witness was declared hostile and cross-examined by the prosecution because he had supported the case of the prosecution in his statement Ext. Ka. 13 recorded under Section 161 of the Code of Criminal Procedure, 1973. Consequently, being cross-examined by the prosecution, he has resiled from his said statement to this effect that he had identified the accused, while firing at Nankauna from his tamancha and that too in the light of the lantern. However, he has admitted that accused hails form his caste. Being suggested, he has denied that he having received money from the accused is resorting to false statement.

11. P.W.-3, Jagat Pal Kewat, admittedly brother of P.W.-1, Smt. Dev Kali Devi, who was physically present there, because he had gone there to fetch his sister, has testified that he was lying over a cot inside the hut in the night of the occurrence; that a lantern was kept alight inside the hut; that Nankauna Kewat, his brother-in-law was then sleeping over a cot at a distance of 2 - 3 steps from the door of the hut while his sister P.W.-1, Smt. Dev Kali Devi, was sleeping over another cot beside her husband; that P.W.-2, Kanchan Kewat, was then underneath the nearby Babool tree; that at about 12 p.m or 1 a.m., his sister had raised the alarms for the help for the miscreant was killing; that thereupon he got up and sat over the cot; that thereafter, he witnessed that a man like accused, Phulawa was there and he had fired the shot at his brother-in-law; that thereafter, he had managed to escape towards south east corner; that he had seen him in the light of the lantern and that thereafter he had arrived near his brother-in-law, who had fallen down from the cot and had succumbed to the injury. Since this witness has testified that the assailant was like accused, Phulawa, the prosecution has declared him hostile and being permitted has cross-examined him also.Consequently, this witness has disclosed that the assailant had a 'tamancha' and he had no cover over this face; that he had fully seen him and in his opinion the assailant was accused, Phulawa. Being cross-examined by the defence, he has disclosed that the lantern was hanging over a wooden pillar and that too at a height of 4 to 6 feet; that he had heard the sound of the fire after the alarm raised by his sister; that he had seen the assailant at the time of assault, as well as the escape from there; that his brother-in-law was sitting over the cot at the time of actual assault; that he was then facing east while the assailant was facing north at that time; that the assailant had fired the shot at him from south and that too from a distance of about 4 to 6 steps and that he had gone there to fetch his sister and that his village is situate at a distance of 6 - 7 miles from the place of occurrence.

12. P.W.-7, Dhan Pal Singh, the investigating officer, has testified that accused, Phulawa Kewat, was not available at his residence on the date of occurrence at the house of his father-in-law at village Hintapur and in his nanihal, Village- Khapatiha, District- Banda on the next day. Obviously he has not been cross-examined about such conspicuous absence of the accused from his residence and from the places where he was expected to be.

13. Learned counsel for the appellant has submitted that the incident in dispute took place on 09.09.1988 at 01:00 a.m but the F.I.R was lodged belatedly at 07:45 a.m when the distance between place of incident and police station was about 3 kms only; the appellant after coming to know of the lodging of F.I.R surrendered himself on 14.09.1988 and nothing incriminating was recovered from his pointing out. P.W.-2 was declared hostile while P.W.-1 (wife of deceased) and P.W.-3 (brother-in-law of deceased) were interested witnesses; as per the site plan lantern was lightning the hut of the deceased, but he was sleeping outside with P.W.-1 and it was not possible to identify the appellant in the dark night by P.W.-1 and P.W.-3; because of an incident took place 15 days ago the appellant was implicated in this case on the basis of suspicion. P.W.-1 claimed that she was residing at her house in Dasauli and hence how she was present at her cattle-shed, where the incident took place has not been explained. From the statement of P.W.-1, it is clear that she did not understood the contents of application given by C.W.-1, Vidya Sagar, at the police station. The motive of crime was the agreement to sale executed by Babu Lal, elder brother-in-law of P.W.-1, in favour of Ram Raj and Kallu sons of Jagmohan, which was not liked by the deceased and village panchayat also took place in this regard. The appellant was falsely implicated in this case when the deceased had enmity with Ram Raj and Kallu aforesaid. The statement of P.W.-3 is not reliable, since he was sleeping inside the hut when the incident took place outside. The appellant is aged about 66 years and is in jail since 02.12.2025 when bail was earlier granted to him.

14. Learned A.G.A has vehemently opposed the submissions made by learned counsel for the appellant and has submitted that the statement of P.W.-1, who is an illiterate and rustic women, is sufficient to uphold the conviction of the appellant. He has further submitted that P.W.-2 was declared hostile but P.W.-3 has supported the prosecution case in his cross-examination despite being declared hostile. He has explained reason of his presence in the house of P.W.-1 and deceased on that date. There was clear motive of the incident, which was proved before the court and hence the conviction of the appellant in this case is justified. The findings of the trial court are based on the material on record and deserve to be confirmed and the appeal may be dismissed.

15. After hearing the rival submissions and going through the material on record of trial court, we find that P.W.-1 has stated, that her ancestral house is situated in abadi of the village - Dasauli but on the date of incident, she was present along with her husband in the cattle-shed. The dead body of deceased was also recovered from the same place. The site plan prepared by the investigating officer shows P.W.-1, P.W.-2 and P.W.-3 clearly which is corroborated from the oral evidence of the aforesaid witnesses.

16. Since Babulal Kewat, the elder brother of the husband of P.W.-1, Smt. Dev Kali Devi, had no wife and any child and no other female member of the joint family has either been shown or suggested by the defence, it is logical to rely upon P.W.-1, Smt. Dev Kali Devi to this effect that she had joined the association of her husband on the unfortunate night, because her Jeth was altogether alone in the ancestral house. So is the case with her brother, P.W.-3, Jagatpal Kewat also. Being cross-examined, P.W.-3, Jagat Pal Kewat, has disclosed that he was there to fetch his sister. Since his sister and brother-in-law were sleeping on different cots apparently besides each other in the open. Hence, his presence inside the adjacent hut is normal and justified.

17. Similarly, the physical presence of P.W.-2, Kanchan Kewat, a hostile witness, cannot be doubted that he was admittedly there over his cot underneath the Babool tree. It is significant to note that the physical presence of both the witnesses, namely, P.W.-2, Kanchan Kewat and P.W.-3, Jagat Pal Kewat and the purpose of their presence were disclosed by P.W.-1, Smt. Dev Kali Devi at the very outset in the first information report itself. The defence has not doubted the physical presence of P.W.-2, Kanchan Kewat in the nearby vicinity. Since both P.W.-1, Smt. Dev Kali Devi and her brother, P.W.-3, Jagatpal Kewat, have categorically denied negative suggestions hence we are convinced that three witnesses were present at and near the place of occurrence.

18. The testimony of P.W.1, Smt. Dev Kali Devi, being a very natural and trustworthy is sufficient by itself to prove participation of the accused in the undisputed crime. Admittedly, she is illiterate and unsophisticated and hails from the lower caste also. However, she is throughout consistent in her testimony to this effect, that it was accused, alone who had fired the single shot at her husband from a country made pistol and that too from a distance of four or five cubits, while her husband was in a sitting position. Her testimony as such cannot be doubted on the grounds of technical omissions and minor discrepancies. Obviously, the testimony of P.W.1, Smt. Dev Kali Devi, is so self-consistent and trustworthy that, it is very safe to base the conviction on her sole testimony alone. Testimony of a single witness can be accepted and the conviction can be based on such evidence, found to be trustworthy. Obviously, the testimony of P.W.1, Smt. Dev Kali Devi, inspires full confidence of the Court (see judgment of the Apex Court in the case of Amar Singh vs. NCT of Delhi, Criminal Appeal No. 335 of 2015).

19. The testimony of P.W.-1, Smt. Dev Kali Devi, is corroborated by P.W.-3, Jagatpal Kewat, about the crime committed and P.W.-3, has also testified about the participation of the accused in the crime. It is true that P.W.-3, Jagatpal Pal Kewat is not so definite as his sister, P.W.-1, Smt. Dev Kali Devi, happens to be about the identity of the accused. But it is equally true that he is an outsider and he was then inside the hut and that too within the direct light zone of the burning lantern. Therefore, the same certainty is not expected from him. His corroborative testimony, however cannot be ignored.

20. Evidence of a hostile witness remains admissible in the trial and there is no legal bar to base a conviction upon the testimony of such a witness, if corroborated by other reliable evidence. Therefore, it is very much evident that the testimony of P.W.1, Smt. Dev Kali Devi, is further substantiated by the corroborative testimony of her brother also, and that too about the disputed participation of the accused. So far as the commission of offence on the fateful night is concerned, it is also corroborated from the statement of P.W.-2.

21. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examine him.

"6. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof."

22. In State of U.P. vs. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held, that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde vs. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. vs. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. vs. State of U.P., AIR 2006 SC 951; Sarvesh Narain Shukla vs. Daroga Singh & Ors., AIR 2008 SC 320; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462.

"83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."

23. Undoubtedly, there may be some exaggeration in the evidence of the prosecution witnesses. However, it is the duty of the court to unravel the truth under all circumstances.

24. In Balaka Singh vs. State of Punjab, 1975 AIR 1962 this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel vs. State of M.P and held as under : "8. the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the true is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."

25. In Sukhdev Yadav & Ors. vs. State of Bihar, AIR 2001 SC 3678, this Court held as under: "It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account."

26. A similar view has been re-iterated in Appabhai & Anr. vs. State of Gujarat, AIR 1988 SC 696, wherein this Court has cautioned the courts below not to give undue importance to minor discrepancies, which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not dis-believe the evidence of such witnesses altogether if they are otherwise trustworthy.

27. In Sucha Singh vs. State of Punjab, AIR 2003 SC 3617, this Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

28. In Shivaji Sahebrao Bobade & Anr. vs. State of Maharashtra, AIR 1973 SC 2622, this Court held : "?Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant?"

29. Therefore, in such a case the paramount importance of the court is to ensure that miscarriage of justice is avoided. The benefit of doubt particularly in every case may not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense.

30. Regarding source of light, there was sufficient light for the proper identification of the accused at the time of the occurrence. Both P.W.1, Smt. Dev Kali Devi as well as P.W.3, Jagat Pal Kewat are consistent with each other that a lantern was kept alight inside the nearby hut on the night of occurrence. Since the cattle of the victim were there and child of P.W.1, Smt. Dev Kali Devi,was there and the feeding was essential, it is not at all prudent to doubt the source of light at that place.

31. Regarding motive of crime on the part of the accused is not at all without motive. P.W.1, Smt. Dev Kali Devi, being direct witness of the earlier incident, has testified that the accused being perturbed by the resistance offered by her husband at the time of the cattle trespass, had threatened him with dire consequences. This fact about the motive was also disclosed at the outset in the first information report also. Consequently, it is obvious that the crime is sustained by a motive also.

32. The immediate and subsequent conduct of the accused is absconding cannot be ignored. P.W.7, Dhan Pal Singh, the Investigating Officer has testified that the accused was not available at his house and at the houses of his relations in village Hintapur and Khapatia. Obviously, there is nothing to doubt his official testimony to this effect. It is also obvious that the accused has offered no prudent explanation for his conspicuous absence on 9th, 10th, 11th and 12th of September, 1988. Therefore, it is logical to infer that he had immediately absconded because of his guilty mind.

33. The medical evidence is very much consistent with the whole case of the prosecution. Having considered the nature of the gunshot wound of entry and the gunshot wound of exit found on the dead body of Nankauna Kewat and that too without any mark of blackening or tattoo, it is logical to infer that the assailant had fired the single shot at him from a distance more than 4 feet and that too from a lower level. Since speed of P.W.-1, Smt. Dev Kali Devi, is quite and reliable to the effect also, that her husband had just got up from the court after the alarms raised by her, and then he set over the court, it is logical to infer that the assailant had fired at his back while he was either in standing position or in semi standing position. In this respect, it is significant to note that the accused happens to be small statured having the height of four feet ten inches. Consequently, the direction of the wound was found to be upwards, frontward and towards left. Obviously, this consistency between the medical evidence and the substantive evidence is very inspiring and worth acceptance also.

34. Lastly, the first information report of the case provides very valuable corroboration to the substantive evidence on the record on all the particulars of the occurrence. It is true that the occurrence took place just after midnight and the first information report was launched at 7:45 a.m on the same day. Since the police station is situated at a distance of 8 kms. it is obvious that there is a delay in lodging of the first information report. However, P.W.1, Smt. Dev Kali Devi, has successfully explained that, she could not go to the police station, because of fear. The explanation as such is very natural and the same cannot be a easily ignored. Even if, it is ignored, I find that delay by itself is not at all a good ground for disbelieving the case of the prosecution. C.W.-1, Vidya Sagar, the scribe of the first information report has corroborated the testimony of P.W.-1, Smt. Dev Kali Devi, the first informant, about the place and the approximate time, when Ext. Ka. 1, the written report was written and there is nothing to doubt the official testimony of P.W.-5, Brij Lal Pandey, as well as P.W-7, Dhanpal Singh, the investigating officer. Hence, it is evident that the testimony of P.W.-1, Smt. Dev Kali Devi, is fully corroborated by the first information report also.

35. In view of the above consideration, we have found that the trial court has rightly convicted and sentenced the accused. The judgment of the trial court is affirmed.

36. The Criminal Appeal is dismissed.

37. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall surrender forthwith and carry out the remaining sentence.

38. Let the Trial court record be returned forthwith along with copy of this judgment, within period of ten days.

(Harvir Singh,J.) (Siddharth,J.)

April 3, 2026

Rohit