# Afaq v. State of U.P

- **Citation:** (2024) 12 ILRA 997
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Criminal Appeal No. 647 of 1985
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/afaq-v-state-of-u-p-51039
- **Pages:** 11

## Headnote

A. Criminal Law - Unreliable witness - It
is a sound and well- established rule of
law that the court is concerned with the
quality and not with the quantity of the
evidence
necessary
for
proving
or
disproving a fact. (Para 18)

Evidence
can
be
divided
into
three
categories broadly, namely, (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable. If evidence, along with matters
surrounding it, makes the court believe it
is wholly reliable qua an issue, it can
decide its existence on a degree of
probability. Similar is the case where
evidence is not believable. When evidence
produced is neither wholly reliable nor
wholly
unreliable,
it
might
require
corroboration, and in such a case, court
can also take note of the contradictions
available in other matters. (Para 19)

The evidence of a chance witness requires
a very cautious and close scrutiny and a
chance witness must adequately explain
his presence at the place of occurrence.
Deposition of a chance witness whose
presence at the place of incident remains
doubtful should be discarded. (Para 16)

In the present case, if an incident of the kind
which had been reported in the FIR had taken
place and six persons were just onlookers then
it becomes hard to believe that the incident was
actually seen by six young able bodied persons.
They had for reasons only known to them
refrained from intervening in the scuffle which
998 INDIAN LAW REPORTS ALLAHABAD SERIES
was happening and which resulted in the
murder of Shabbir Ahmad. Therefore, it is found
that P.W.-3 was not a witness who was there at
the place of incident at all and so was the case
with P.W.-4 and P.W.-5 who were also chance
witnesses and had been planted by the
prosecution in a manner which could not be
believed. They were thus wholly unreliable
witnesses and on the basis of the testimony of
unreliable witness the accused could not be
convicted. (Para 25)

The charges as were framed on the 16th of
November, 1984, by the court below were not
proved and, therefore, it is held that the appellants
Rais and Afaq were not guilty of the charges as
were levelled against them. (Para 26)

Both the appeals are allowed and the appellants
Rais and Afaq are acquitted of the charges
levelled against them. The appellants Rais and
Afaq are on bail. The bail bonds are cancelled.
Sureties are discharged. (Para 27)

Criminal appeals allowed. (E-4)

Precedent followed:

## Text

12 All. Afaq Vs. State of U.P.
997
exceptions are: (i) where the
statutory authority has not acted in
accordance with the provisions of the
enactment in question; (ii) it has acted in
defiance of the fundamental principles of
judicial procedure; (iii) it has resorted to
invoke the provisions which are repealed;
and (iv) when an order has been passed in
total violation of the principles of natural
justice.

14. When the facts of the instant
case along with the arguments of the learned
counsel for the petitioner are seen in the
context of the law laid down by the Hon'ble
Supreme Court, it clearly emerges that none
of the aforesaid exceptions are attracted in the
facts of the instant case so as to entertain the
instant petition.

15. Considering the aforesaid i.e.
statutory remedy being available under the
provisions of Act, 1972 as such the writ
petition is disposed of leaving it open to the
petitioner to pursue the remedy as available
to him under the Act, 1972. As the petitioner
is a retired employee, it is provided that in
case an application is filed by the petitioner
under the Act, 1972, the same would be
considered and decided in accordance with
law and the provisions of the Act, 1972,
which
the
authority would make
an
endeavour to decide within a period of 3
months from the date the application is filed
along with a certified copy of this order.
----------
(2024) 12 ILRA 997
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.
Criminal Appeal No. 647 of 1985

Afaq ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
J.S. Sengae, Jai Prakash Singh, M. Islam,
Mohd. Irteqa, Sudhir Mehrotra

Counsel for the Respondent:
Dga, Pradeep Kumar, R.B. Sahai, Sanjay
Srivastava

A. Criminal Law - Unreliable witness - It
is a sound and well- established rule of
law that the court is concerned with the
quality and not with the quantity of the
evidence
necessary
for
proving
or
disproving a fact. (Para 18)

Evidence
can
be
divided
into
three
categories broadly, namely, (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable. If evidence, along with matters
surrounding it, makes the court believe it
is wholly reliable qua an issue, it can
decide its existence on a degree of
probability. Similar is the case where
evidence is not believable. When evidence
produced is neither wholly reliable nor
wholly
unreliable,
it
might
require
corroboration, and in such a case, court
can also take note of the contradictions
available in other matters. (Para 19)

The evidence of a chance witness requires
a very cautious and close scrutiny and a
chance witness must adequately explain
his presence at the place of occurrence.
Deposition of a chance witness whose
presence at the place of incident remains
doubtful should be discarded. (Para 16)

In the present case, if an incident of the kind
which had been reported in the FIR had taken
place and six persons were just onlookers then
it becomes hard to believe that the incident was
actually seen by six young able bodied persons.
They had for reasons only known to them
refrained from intervening in the scuffle which
998 INDIAN LAW REPORTS ALLAHABAD SERIES
was happening and which resulted in the
murder of Shabbir Ahmad. Therefore, it is found
that P.W.-3 was not a witness who was there at
the place of incident at all and so was the case
with P.W.-4 and P.W.-5 who were also chance
witnesses and had been planted by the
prosecution in a manner which could not be
believed. They were thus wholly unreliable
witnesses and on the basis of the testimony of
unreliable witness the accused could not be
convicted. (Para 25)

The charges as were framed on the 16th of
November, 1984, by the court below were not
proved and, therefore, it is held that the appellants
Rais and Afaq were not guilty of the charges as
were levelled against them. (Para 26)

Both the appeals are allowed and the appellants
Rais and Afaq are acquitted of the charges
levelled against them. The appellants Rais and
Afaq are on bail. The bail bonds are cancelled.
Sureties are discharged. (Para 27)

Criminal appeals allowed. (E-4)

Precedent followed:

1. Manoj & ors. Vs St. of U.P., (2023) 2 SCC 352
(Para 16)

2. Manoj & ors. Vs St. of M.P., (2003) 2 SCC 353
(Para 16)

3. Vadivelu Thevar Vs The St. of Madras, AIR
1957 SC 614 (Para 17)

4. Mahendra Singh & ors. Vs St. of M.P., (2022)
7 SCC 157 (Para 18)

5. Rajesh Yadav & anr.Vs St. of U.P., (2022) 12
SCC 200 (Para 19)

6. Dalbir Singh Vs St. of U.P., 2016 (11) ADJ 815
(Para 23)

Present appeals assail judgement and
order dated 31.1.1985, passed by the
Sessions Judge, Fatehpur.

(Delivered by Hon'ble Siddhartha Varma, J. &
Hon'ble Ram Manohar Narayan Mishra, J.)

1. The above criminal appeals have
been heard together as appellants Afaq and
Rais @ Munna who were tried together
filed criminal appeals separately against the
same judgement.

2. Upon an incident having taken place
on 20th June, 1984 at around 7:30 a.m.,
wherein one Shabbir Ahmad Khan had
died, his brother Saleem Khan got lodged a
first information report at 8:30 a.m. As per
the first information report, the brother of
the first informant while was, on 20 June,
1984, at 7:30 a.m. after having answered
the call of nature, going back to his home,
Afaq s/o Jamaluddin Khan and Rais @
Munna s/o Shakir Khan near the Gosai
Talab accosted the deceased. Afaq was
carrying a razor (ustara) while Rais was
empty handed as was stated in the first
information report and when Rais and Afaq
met Shabbir, they entered into a verbal
altercation and thereafter there was a
physical fight as well. Thereafter, Rais
exhorted Afaq to kill the deceased and
subsequently Afaq with the help of Rais
had assaulted Shabbir with the razor with
an intention to kill.

3. It has been stated in the first
information report that the incident was
witnessed by Yakoob Khan, Nasiruddin
Khan, Ali Ahmad @ Gajju Khan, Usman
Khan and Abdul Hafeez. When these
persons who were present at the spot asked
the two assailants not to kill Shabbir then
the miscreants ran towards the southern
direction and ran away. The motive has
also been disclosed in the first information
report and it has been stated that around
nine months prior to the incident, one
Kuresha was married to the brother of the
first informant i.e. the deceased Shabbir.
However, when Kuresha had doubted that
Shabbir was having an affair with the wife
12 All. Afaq Vs. State of U.P.
999
of Saleem then Shabbir had got angry with
this false allegation, which was alleged
against him and he had divorced Kuresha.
In the first information report itself, it had
been stated that around one month prior to
the incident, there was a Panchayat in the
village and the parties had come to a
settlement. It had been stated that because
of this enmity, the accused-Afaq and Rais
had cut the throat of the deceased with an
intention
to
kill
him.
In
the
first
information report itself there was a prayer
that the investigation be done and the guilty
be brought to book.

4. On 21.6.1984, it was stated that as
per the information the blood-stained razor
(Ex.ka5) was discovered and was taken into
custody at the instance of Rais. The clothes
etc. of the deceased was also taken into
custody. The plain soil and the bloodstained soil were also taken into custody
and were exhibited as Ex.ka11. Thereafter,
upon lodging of the FIR, Panchayatnama
was prepared on 20th June, 1984 itself. It
commenced at 9:00 a.m. and came to an
end at 10:30 a.m. This was followed by a
postmortem, which was done on 20th June,
1984, itself at 5:40 p.m.

5. From the side of prosecution, as
many as 7 prosecution witnesses were
produced. P.W.-1, Dr.Ramji Khare, had
proved the postmortem and had given the
details of the ante-mortem injuries, which
were found on the dead-body of the
deceased. P.W.-2, Ram Adhar, Head
Constable, had written the chick-FIR and
he had also proved the same. P.W.-3,
Saleem Khan is the real brother of the
deceased and he was the person who
lodged the first information report. The
P.W.-3 in his examination-in-chief had
stated that since Kuresha was divorced by
the deceased Shabbir around a month prior
to the incident, there was enmity between
him and the accused. It was stated that Rais
was the brother of Kuresha and Afaq was a
relative of Rais. He has categorically stated
that the incident had taken place on 20th
June, 1984 near the Gosai Talab and that he
had himself gone to the Gosai Talab to pick
some mud from there. He has stated that
Shabbir had returned from the Talab and
had reached the place of incident after
having eased himself in the morning. He
has stated in his examination-in-chief that
when Shabbir had reached the place of
incident, then he heard the accused saying
that since Shabbir had divorced his sister,
he be killed. Thereafter, it has been stated
that they entered into a physical fight and
that Rais sat on the chest of the deceased
and Afaq with the help of the razor had cut
the throat to the extent that he died.

6. In the examination-in-chief itself it
has been stated that the first informant had
raised a hue and cry and because of which,
Yakoob, Ali Ahmad, Naseeruddin, Hafeez
and Usman came towards the place of
incident. When all these people reached the
place of incident, the accused ran away
from the southern side. They had noticed
that there were injuries on the body of the
deceased and blood was flowing out from
it. He has stated that at the place of incident
itself, on his dictation Mohd. Khan had
written the report and thereafter, he had put
his signature on the first information report
and had lodged the same.

7. In the cross-examination, P.W.-3
has somewhat changed his stand and had
stated that Kuresha herself was of bad
character and, therefore, Shabbir had
divorced her. He has categorically denied
the fact that Shabbir was of a bad character
and that he was having any affair with his
(Saleem-first informant's) wife. He has, in
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
fact, very categorically stated that it was
wrong to say that Shabbir had divorced her
on account of the fact that she was having
an affair with him. However, in the next
paragraph, he has once again stated that
Kuresha had alleged that Shabbir was
having an affair with his wife and thereafter
upon again a question being asked as to
whether Kuresha was of a bad character, he
had stated that she was not of a bad
character. Then again he had stated that he
had forgotten to write in the first
information report, that Kuresha was of a
bad character.

8. Upon a question being asked as to
whether there was a latrine situate in the
houses of the first informant and the
deceased, he had stated that there were
latrines situate in their houses, but they were
used only by women. He had also stated that
while returning, after having answered the
call of nature, the deceased Shabbir was also
carrying a Lota (mug), but the mug was not
found at the place of incident. Upon being
asked as to whether he was actually there at
the spot, he had stated that it was wrong to
say that he was not there at the spot and that
he was wrongly testifying the fact that he was
present there at the spot. He also denied the
fact that simply because there was enmity
between the accused and the first informant,
therefore, the accused were being implicated.

9. Upon being specifically asked as to
why he had not mentioned in the first
information report that he was himself
present at the place of incident, he had
stated that he had, in fact, stated so while
dictating the first information report, but
why the scribe had missed out that
statement, he did not know.

10. P.W.-4, Usman, is an eye-witness
and he in his testimony has stated that on
the date of incident i.e., on 20th June 1984
at around 7:30 a.m. while he was coming
from Village-Adhawal towards his village
along with Yakoob (P.W.-5) they had
noticed that the deceased and the accused
had entered into a fight and they were also
abusing each other. The accused had
overpowered the deceased and Rais had
climbed on the chest of Shabbir and Afaq
with a razor, which he had in his hand, had
cut his throat. He has also stated that apart
from him, the incident was witnessed by
Naseeruddin, Ali Ahmad, Hafeez, Yakoob
and Salim.

11. He had stated that Afaq had run
away with the razor with which he had
killed Shabbir and thereafter in the same
breath he had stated that the razor was, in
fact, left behind by Afaq. It has also been
stated by him that thereafter when the
accused had run away, he had also gone
near the place of incident and had seen that
Shabbir had died by then and from his body
blood was coming out. He has, in
paragraph no. 12 of his cross-examination
stated that one day prior to the date of
incident i.e. in the evening/night of
19.6.1984, he had gone to village Adhawal.
He had stated that Yakoob had also
accompanied him. They had both gone to
see some dry wood and had also gone to
see the tree which Yakoob had purchased
and had planned to give it to the P.W.-4 on
contract for cutting the same. He had stated
that he had reached the village Adhawal at
around
7:00
to
8:00
PM
in
the
evening/night and in the night after they
had seen the tree which they intended to cut
they had slept in the village itself. He has,
however, upon being asked as to in whose
house he had slept, he had said that he did
not remember the same. However, on the
next day he himself and Yakoob had
proceeded for their village from Adhawal.
12 All. Afaq Vs. State of U.P.
1001
He had not cut any tree in Adhawal. He
has, thereafter, stated that even after the
incident he had not cut the trees which
Yakoob had planned to entrust him for the
cutting of the same. However, 2 -3 days
later he did cut them. He has very
categorically
stated
that
the
verbal
altercation which took place between the
accused and Shabbir was heard by him.
Why the police had not recorded his
statement in that manner he was not aware.
He has, however, stated that he had also
informed the police that apart from him, the
incident was also seen by Salim i.e. the first
informant. He has also stated that along
with all the persons who had collected at
the place of incident he had tried to restrain
the accused. But when all of them had tried
to go towards the accused then the accused
had
threatened
them
with
dire
consequences and, therefore, they did not
go near the place of incident.

12. P.W.-5 is, Yakoob, who has also
stated somewhat the same things as had
been stated by P.W.-4 Usman Khan.
However, despite the fact that all the
witnesses were related to each other he was
trying to give out in his cross examination
that he was not closely related with the
informant and the deceased. He had also
stated that he had gone to Adhawal on the
day prior to the date of the incident and
while coming back had witnessed the
incident. He has stated that the village
Adhawal was around 1 mile away from his
own village. He has stated that in Adhawal
his cut wood was lying and that he had
purchased some wood in the village itself.
He had, however, quite contrary to what
P.W.-3 had stated got recorded that he had
not purchased any tree. He had only
purchased some wood from Siya Ram,
Ram Narayan etc. He has also stated that
Usman had accompanied him to the village
Adhawal and that they had remained at
Adhawal in the night prior to the date of
incident and had slept there. He had stated
that the next day they had returned to their
village. He has also stated that when the
verbal altercation was going on between
the accused and the deceased then he was
only 15 steps away from the place of
incident. However, he has stated that
because Afaq was having a razor, none of
the persons present had tried to placate the
accused persons or to save the deceased
from the accused persons.

13. P.W.-6 is Mohd. Khan, the witness
of the recovery of the blood stained Ustara.

14. P.W.-7 is Jagvir Kateriya was the
Investigating Officer.

15. Learned counsel for the appellant
Sri
V.P.
Srivastava,
learned
Senior
Counsel, assisted by Sri J.P. Singh and Sri
Rajeev Nayan has argued that as a matter
of fact the witnesses P.W.-3, P.W.4 and
P.W. 5 were not there at the place of
incident at all. He submits that, in fact,
P.W.-3 had got the information about the
death of his brother Shabbir from someone
else and he had implicated the brother of
the estranged wife (Kuresa) for the murder
of his own brother Shabbir. Learned
counsel for the appellant has stated that in
the first information report, the first
informant had, because of the fact that he
was not there on the spot and he was
getting the first information report lodged
on the basis of some information he had got
from someone else, he had not stated in the
first information report at all that he was
present on the spot. In fact while giving out
the motive, he had stated that Kuresa had
doubted her own husband with regard to
the fact that he was having an affair with
the wife of Salim. Learned counsel for the
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant, therefore, states that if the first
informant had been on the spot and had got
the first information report lodged himself
then he would definitely have mentioned
that Shabbir was having an affair with the
informant's wife and would not have said
that Shabbir was having an affair with the
wife of one Salim and, therefore, learned
counsel for the appellant states that it was
highly improbable that the first informant
was there on the spot. Learned counsel for
the appellant has further stated that Usman
Khan and Yakoob Khan had come up with
a concocted story that they had one day
prior to the date of incident gone to the
neighbouring village Adhawal and that they
had slept there in the night and had come to
their village on the subsequent morning at
around 7:30am and had witnessed the
entire incident. Learned counsel for the
applicant states that there are any number
of contradictions in the statements of P.W.-
4 and P.W.-5 and those contradictions were
not minor contradictions which could be
brushed aside/ignored by the Court. He has
made an endeavour to take the Court
through the statements of P.W.-4 which is
to be found at page 39 and has stated that in
paragraph no. 12 of it, he had stated that
P.W.-4 Usman Khan had gone with P.W.-5
Yakoob Khan to the neighbouring village
Adhawal and there Yakoob had purchased
certain trees and he had planned to give the
job of cutting those trees to Usman Khan.
He has, thereafter, stated that he did not
remember as to where exactly Usman Khan
had slept in the night of 19/20.6.1984.
Quite contrary to that, learned counsel for
the appellant has drawn the attention of the
Court to the statement of P.W.-5 wherein in
paragraph no. 9 Yakoob Khan has stated
that they had gone to the village Adhawal
which was around 1 mile away and there
Yokoob Khan's cut wood was already
lying. He had very categorically again,
quite contrary to what P.W.-4 had stated,
got recorded that he had not purchased any
tree etc. and that the cut wood was bought
from Siya Ram and Ram Narayan etc. He
has also stated that he had not taken Usman
to the village Adhwal for any specific
purpose but he had just taken him for no
reason whatsoever. Learned counsel for the
appellant has further stated that though
Usman Khan had stated that they had slept
in the house of some villager of the village
Adhawal but P.W.-5 Yakoob Khan had
stated that they had slept where the wood
was cut and had not slept in anybody's
house.

16. Learned counsel for the appellant
has stated that when Adhawal was just 1
mile away from the village of Usman and
Yakoob it could have been very convenient
for them to have reached back their village
in the cool of the evening of June 1984
itself and there was no requirement for
them to have slept there at the village
Adhawal.
Learned
counsel
for
the
appellant,
therefore,
states
that
the
witnesses P.W.-4 and 5 were chance
witnesses. They had absolutely no occasion
to be present near the place of incident.
Learned counsel for the appellants relied
upon a decision of the Supreme Court in
(2023) 2 SCC 352 : Manoj and Ors. vs.
State of U.P. and has submitted that a
chance witness cannot be taken to be a
reliable
witness
and,
therefore,
the
testimony of a chance witness could not be
in any manner used to convict an accused.
Learned counsel for the appellant states
that as per the law laid down by the
Supreme Court, testimony of a chance
witness
should
be
utilised
by
the
prosecution very cautiously. He submits
that the evidence of the chance witness
requires a very cautious and strict scrutiny
and if there was any slackness in the
12 All. Afaq Vs. State of U.P.
1003
explanation about the presence of the
chance witness at the place of incident then
his deposition ought to be rejected. Since
learned counsel for the appellant relied
heavily on paragraphs 102, 103 and 104 of
the judgment reported in (2003) 2 SCC 353
: Manoj & Ors. vs. State of Madhya
Pradesh, the same are being reproduced
here as under :-

"102. A chance witness is one,
who appears on the scene suddenly. This
species of witness was described in Puran
v. State of Punjab (AIR 1953 SC 459), in
the following terms:

"Such witnesses have the habit of
appearing suddenly on the scene when
something is happening and then of
disappearing after noticing the occurrence
about which they are called later on to give
evidence."

103. This court has sounded a
note of caution about dealing with the
testimony of chance witnesses. In Darya
Singh v. State of Punjab (AIR 1965 SC
328), it was observed that:

"...where the witness is a close
relation of the victim and is shown to share
the victim's hostility to his assailant, that
naturally makes it necessary for the
criminal courts examine the evidence given
by such witness very carefully and
scrutinise all the infirmities in that evidence
before deciding to act upon it. In dealing
with such evidence, Courts naturally begin
with the enquiry as to whether the said
witnesses
were
chance
witnesses
or
whether they were really present on the
scene of the offence......If the criminal
Court is satisfied that the witness who is
related to the victim was not a chancewitness, then his evidence has to be
examined from the point of view of
probabilities and the account given by him
as to the assault has to be carefully
scrutinised."

104. In Jarnail Singh v. State of
Punjab [(2009) 9 SCC 719] again, this
Court held that:

"22. The evidence of a chance
witness requires a very cautious and close
scrutiny and a chance witness must
adequately explain his presence at the place
of occurrence (Satbir v. Surat Singh (1997)
4 SCC 192 30, Harjinder Singh v. State of
Punjab
(2004)
11
SCC
253,
Acharaparambath Pradeepan and Anr. v.
State of Kerala (2006) 13 SCC 643 and
Sarvesh Narain Shukla v. Daroga Singh
(2007) 13 SCC 360). Deposition of a
chance witness whose presence at the place
of incident remains doubtful should be
discarded (vide Shankarlal v. State of
Rajasthan (2004) 10 SCC 632)."

17. Still further, learned counsel for
the appellant stated that not only were they
chance witnesses. From the statements
made before the Court it could clearly be
gathered that they were wholly unreliable.
Their statements may not be relied upon at
all. To differentiate between a wholly
reliable witness; partly reliable witness and
a
wholly
unreliable
witness,
learned
counsel for the appellants has relied upon
AIR 1957 SC 614 (Vadivelu Thevar vs.
The State of Madras). He has for that
purpose, relied upon paragraph no. 11
which is being reproduced here as under:-

"11.
In
view
of
these
considerations, we have no hesitation in
holding that the contention that in a murder
case, the court should insist upon plurality
of witnesses, is much too broadly stated.
Section 134 of the Indian Evidence Act,
has categorically laid it down that "no
particular number of witnesses shall, in any
case, be required for the proof of any fact".
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
The legislature determined, as long ago as
1872, presumably after due consideration
of the pros and cons, that it shall not be
necessary for proof or disproof of a fact, to
call any particular number of witnesses. In
England, both before and after the passing
of the Indian Evidence Act, 1872, there
have been a number of statutes as set out in
Sarkar's Law of Evidence - 9th Edn., at
pp. 1100 and 1101, forbidding convictions
on the testimony of a single witness. The
Indian Legislature has not insisted on
laying down any such exceptions to the
general rule recognized in Section 134
quoted above. The section enshrines the
well recognized maxim that "Evidence has
to be weighed and not counted". Our
Legislature has given statutory recognition
to the fact that administration of justice
may be hampered if a particular number of
witnesses were to be insisted upon. It is not
seldom that a crime has been committed in
the presence of only one witness, leaving
aside those cases which are not of
uncommon
occurrence,
where
determination of guilt depends entirely on
circumstantial evidence. If the legislature
were to insist upon plurality of witnesses,
cases where the testimony of a single
witness only could be available in proof of
the crime, would go unpunished. It is here
that the discretion of the presiding judge
comes into play. The matter thus must
depend upon the circumstances of each
case and the quality of the evidence of the
single witness whose testimony has to be
either accepted or rejected. If such a
testimony is found by the court to be
entirely
reliable,
there
is
no
legal
impediment to the conviction of the
accused person on such proof. Even as the
guilt of an accused person may be proved
by the testimony of a single witness, the
innocence of an accused person may be
established on the testimony of a single
witness,
even
though
a
considerable
number of witnesses may be forthcoming
to testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a
sound and well-established rule of law that
the court is concerned with the quality and
not with the quantity of the evidence
necessary for proving or disproving a fact.
Generally speaking, oral testimony in this
context may be classified into three
categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable."

18. Learned counsel for the appellants
still further has relied upon (2022) 7 SCC
157 (Mahendra Singh and others vs.
State of Madhya Pradesh). Since learned
counsel for the appellants has read out
paragraph no. 12 of the judgement, the
same is being reproduced here as under:-

12. It will be apposite to refer to
the following observations of this Court in
its celebrated judgment in Vadivelu Thevar
[Vadivelu Thevar v. State of Madras, 1957
SCR 981 : AIR 1957 SC 614] : (AIR p. 619,
paras 11-12)

"11. ... Hence, in our opinion, it
is a sound and well-established rule of law
that the court is concerned with the quality
and not with the quantity of the evidence
necessary for proving or disproving a fact.
Generally speaking, oral testimony in this
context may be classified into three
categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable.

12. In the first category of proof,
the court should have no difficulty in
coming to its conclusion either way - it
12 All. Afaq Vs. State of U.P.
1005
may convict or may acquit on the testimony
of a single witness, if it is found to be
above
reproach
or
suspicion
of
interestedness,
incompetence
or
subornation. In the second category, the
court equally has no difficulty in coming to
its conclusion. It is in the third category of
cases, that the court has to be circumspect
and has to look for corroboration in
material particulars by reliable testimony,
direct or circumstantial."

19. To further bolster his point and to
still further elaborate on the issues as to
who was a reliable witness and who was
not a reliable witness, the counsel for the
appellant further relied upon (2022) 12
SCC 200 (Rajesh Yadav and another vs.
State of Uttar Pradesh. Since the learned
counsel for the appellants has read out
paragraph no. 20 of the judgement the same
is being reproduced here as under:-

20.
We
have
already
indicated
different classification of evidence. While
appreciating the evidence as aforesaid
along with the matters attached to it,
evidence can be divided into three
categories broadly, namely, (i) wholly
reliable, (ii) wholly unreliable, and (iii)
neither
wholly
reliable
nor
wholly
unreliable. If evidence, along with matters
surrounding it, makes the court believe it is
wholly reliable qua an issue, it can decide
its existence on a degree of probability.
Similar is the case where evidence is not
believable. When evidence produced is
neither
wholly
reliable
nor
wholly
unreliable, it might require corroboration,
and in such a case, court can also take note
of the contradictions available in other
matters.

20. Learned counsel for the appellants
has further submitted that as per the first
information report when at the time when
Salim was watching the entire incident and
had chosen not to help out his own brother
by going near the place of incident then it
becomes quite probable that he was not
there at the spot at all. He has further stated
equally improbable was the presence of
Yakoob Khan, Naseeruddin Khan, Ali
Ahmad, Usman Khan and Abdul Hafees at
the place of incident. Learned counsel for
the appellants states that none of those six
persons present at the place of incident ever
tried to go near the place of incident where
just two persons were mauling the deceased
by a small razor (ustara). Learned counsel
for the appellants states that six able bodied
young
people
could
have
easily
overpowered the two of the accused who
were only carrying a razor and were not
armed with any firearm etc.

21. Learned counsel for the appellant,
therefore, states that the entire story of the
prosecution becomes unbelievable and
could not be relied upon to convict the
appellants.

22. Learned counsel for the appellants
further states that even the recovery as was
done under Section 27 of the blood stained
razor was a false recovery. Learned counsel
for the appellant has stated that the P.W.-4
had in his examination in chief stated that
Afaq after having committed the crime ran
with the razor but he thereafter himself had
stated that he had left the razor there on the
spot. Learned counsel for the appellants
therefore states that why a recover was
required of the instrument which had been
left behind was not clear and in fact
remained a mystery. Learned counsel for
the appellants further states that Afaq who
had used the razor to kill the deceased
could have definitely thrown the razor in
the pond which was neighbouring the place
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
of incident and would not have hidden the
same behind a tree.

23. Learned counsel for the first
informant Sri Ram Krishna holding brief of
Sri Sanjay Srivastava has argued that when
there were three prosecution witnesses who
claimed themselves to be eye witnesses
then it mattered little that Naseeruddin, Ali
Ahmad, Abdul Hafees etc. who allegedly
were at the place of incident did not appear
in the witness box. Learned counsel for the
first informant states that even if the three
eye witnesses were related to the first
informant and the deceased their testimony
could not be thrown out because they had
definitely seen the incident and thereafter
had deposed so in the court. Learned
counsel for the informant further states that
the incident took place at 7:30am and very
promptly the first information report was
got lodged and, therefore, there was not an
iota of doubt that the accused Rais and
Afaq
had
killed
the
deceased
and,
therefore, they were rightly convicted.
Learned counsel for the informant, in this
regard, relied upon 2016(11) ADJ 815 :
Dalbir Singh vs. State of U.P.

24. Learned AGA Sri C.B. Dhar
Dubey has also adopted the argument as
had been made by learned counsel for the
first informant.

25. Having heard the learned counsel
for the parties, we are definitely of the view
that when the first informant had got the
first information report lodged, he had
nowhere mentioned that whether he was
present on the spot. He has, in fact, while
describing the motive in a strange manner
described that the wife of Shabbir, Kuresa,
was having an affair with Saleem. He
forgot that he himself was Saleem and was
lodging the first information report. This
gives a doubt in the mind of the Court that
in fact someone else who had an intention
to implicate Rais and Afaq got the first
information report lodged. In fact, a doubt
also comes to the mind of the Court that in
fact Salim was not there on the spot and
that he was not an eye witness at all.
Further the Court finds that the P.W.-4 and
P.W.-5 had stated that they had gone to the
neighbouring village Adhawal which was
only 1 mile away and they had slept in the
village in the previous night and had only
come to their village on the date of incident
at 7:20am. The Court feels, therefore, that
the story which the P.W.-4 and P.W.-5 had
come up with, was a concocted story and
could not be believed. They were, as had
been submitted, chance witnesses who had
no occasion to be present at the place of
incident and only to make them eye
witnesses they had been planted by the
prosecution. Still further, if we peruse the
statement of P.W.-4 and P.W. -5, we find
that there were material contradictions in
their statements. P.W.-4 had stated that
Yakoob had taken him to the village
Adhawal where he had bought a tree and he
was planning to give the work of cutting
the same to P.W.-5 but Yakoob in his
statement had stated that he had gone to
look up certain trees which he had
purchased in the neighbouring village
Adhawal and that he had taken Usman
Khan for no reason whatsoever. All these
contradictions
were
not
minor
contradictions and, therefore, they create a
doubt in the mind of the Court that whether
the prosecution witnesses 3, 4 and 5 were at
all there at the place of incident. To top it
all, the Court finds it strange that six
persons who were allegedly there as per the
first information report had not cared to
intervene in the fight between the deceased
and the accused persons. The accused
persons Rais and Afaq were just two young
12 All. Afaq Vs. State of U.P.
1007
men and from the side of the informant,
Salim, there were Yakoob, Naseeruddin,
Ali Ahmad, Usman Khan and Abdul
Hafees. All of them were young able
bodied persons but they chose just to be on
lookers and kept seeing the incident from a
very short distance. In fact, if the
statements of P.W.-4 and P.W.-5 are
perused it becomes clear that they were
standing only 10 to 15 steps away from the
place of incident. This appears absolutely
strange to the Court. If an incident of the
kind which had been reported in the first
information report had taken place and six
persons were just onlookers then it
becomes hard to believe that the incident
was actually seen by six young able bodied
persons. They had for reasons only known
to them refrained from intervening in the
scuffle which was happening and which
resulted in the murder of Shabbir Ahmad.
We, therefore, do find that P.W.-3 was a
witness who was not there at the place of
incident at all and so was the case with
P.W.-4 and P.W.-5 who were also chance
witnesses and had been planted by the
prosecution in a manner which could not be
believed. They were thus wholly unreliable
witnesses and on the basis of the testimony
of unreliable witness the accused could not
be convicted.

26. We, therefore, are of the view that
the charges as were framed on the 16th of
November, 1984, by the court below were
not proved and, therefore, we hold that the
appellants Rais and Afaq were not guilty of
the charges as were levelled against them.

27. The judgement and order dated
31.1.1985 passed by the Sessions Judge,
Fatehpur, is set aside. Both the appeals are
allowed and the appellants Rais and Afaq
are acquitted of the charges levelled against
them. The appellants Rais and Afaq are on
bail. The bail bonds are cancelled. Sureties
are discharged.
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