# Afjal Ansari v. State of U.P

- **Citation:** (2024) 7 ILRA 1139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-29
- **Case number:** Criminal Appeal No. 5295 of 2023
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/afjal-ansari-v-state-of-u-p-52198
- **Pages:** 35

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section
374(2)-Uttar
Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Act. 1986-Sections 3(1) &
18-Challenge to-conviction-The conviction
was
based
on
the
accused
alleged
involvement in a gang led by Mukhtar
Ansari, primarily involved in the 2005
murder of MLA Krishna Nand Rai-The
appellant acquittal in the murder case
should act as estoppels against the
application of the Gangster Act-the
prosecution could not prove its case and
charges
under
section
3(1)
of
the
Gangster Act beyond reasonable doubtThe court held that he is liable to be
acquitted in the light of Apex Court
judgment in the matter of Farhana
which has retrospective effect.(Para 1 to
102)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,873 of 109,409. This is a partial read: ask again with offset=39873 for what follows._

7 All. Afjal Ansari Vs. State of U.P.
1139
surviving appellants is imposed fine of Rs
10000/- in addition to imprisonment
already awarded under section 307/ 149
IPC and in case of default both of them will
under go to an additional imprisonment for
three months. The judgment and order
dated 13.12.1982 passed by the trial court
is affirmed accordingly. The appeal sans
merit and is accordingly dismissed.

60. Copy of the judgment be sent
to the trial court to ensure necessary
compliance in one months. The compliance
report be communicated to this court within
two weeks thereafter.

61. Trial court record be sent back
immediately.
----------
(2024) 7 ILRA 1139
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2024

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Appeal No. 5295 of 2023
Connected with
Government Appeal No. 198 of 2024
and
Criminal Revision No. 3535 of 2023

Afjal Ansari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mr. G.S. Chaturvedi, Sr. Advocate, Mr. D.S.
Mishra, Sr. Advocate, Mr. Upendra Upadhyay

Counsel for the Respondent:
Mr. P.C. Srivastava, AAG, Mr. J.K. Upadhyay, AGA
Mr. Sudist Kumar

A. Criminal Law-Criminal Procedure Code,
1973-Section
374(2)-Uttar
Pradesh
Gangster
and
Anti-Social
Activities
(Prevention) Act. 1986-Sections 3(1) &
18-Challenge to-conviction-The conviction
was
based
on
the
accused
alleged
involvement in a gang led by Mukhtar
Ansari, primarily involved in the 2005
murder of MLA Krishna Nand Rai-The
appellant acquittal in the murder case
should act as estoppels against the
application of the Gangster Act-the
prosecution could not prove its case and
charges
under
section
3(1)
of
the
Gangster Act beyond reasonable doubtThe court held that he is liable to be
acquitted in the light of Apex Court
judgment in the matter of Farhana
which has retrospective effect.(Para 1 to
102)

The appeal is allowed. (E-6)

List of Cases cited:

1. Farhana Vs St. of U.P. & ors. (2024) SCC
OnLine SC 159

2. Sangeetaben Mahendra Patel Vs St. of
Guj. & anr.(2012) 7 SCC 621 Ashwani
Kumar @ Ashu & anr. Vs St. of Punj. (2015)
6 SCC 308

3. Kharkan & ors. Vs St. of U.P. (1965) AIR (SC)
83

4. Tahsidar Singh Vs St. of U.P. (1959) AIR (SC)
1012

5. Ashok Kumar Dixit Vs St. of U.P. (1987) AIR
All 235

6. Pappu @ Dhani Ram Vs St. of U.P. 2024 (0)
Supreme (All) 258

7. Selvamani Vs The St. Rep. by the Insp. of
Police (2024) SCC Online SC 873

8. Smt. Alka Rai & Anr Vs U.O.I. & ors. (2006) 5
199 DB

9. Harendra Rai Vs St. of Bih. & ors. (2023) SCC
OnLine SC 1023

10. Sumer Singh Vs Surajbhan Singh & ors.
(2014) 7 SCC 323
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Suryakant Baburao @ Ramrao Phad Vs St.
of Mah. & ors.

12. Tahsidar Singh Vs St. of U.P. (1959) AIR
(SC) 1012

13. V.K Mishra & anr Vs St. of U.K. & anr (2015)
AIR SC 3043

14. P.V. George Vs St. of Ker.(2007) 3 SCC 557

15. Manoj Parihar & ors. Vs St. of J & K & ors.
(2022) :Live Law (SC) 560

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

1- Criminal Appeal No. 5295 of
2023 under Section 18 of Uttar Pradesh
Gangsters and Anti Social Activities
(Prevention) Act, 1986 read with Section
374 (2) of Criminal Procedure Code has
been filed by appellant Afjal Ansari against
the judgement and order dated 29.04.2023
passed by the learned Additional Sessions
Judge/Special Judge, M.P./M.L.A Court,
Ghazipur in Special Session Trial No. 980
of 2012 arising out of Case Crime No. 1052
of 2007, under Section 3(1) of the Uttar
Pradesh
Gangsters
and
Anti
Social
Activities
(Prevention)
Act,
1986,
(hereinafter referred to as "the Gangsters
Act")
police
station
Mohammadabad,
district Ghazipur, whereby the learned Trial
Court
convicted
and
sentenced
the
appellant
to
four
years'
simple
imprisonment and a fine of Rs. 1,00,000/-
(rupees one lac ) and in case of default in
payment of fine, the appellant was further
directed to undergo six months' rigorous
imprisonment.

2- A Government Appeal No. 198
of 2024 under Section 377 of Criminal
Procedure Code has been filed by the State
against the judgement and order dated
29.04.2023 passed by the Additional
Sessions Judge/Special Judge, M.P./M.L.A
Court, Ghazipur in Special Session Trial
No. 980 of 2012 arising out of Case Crime
No. 1052 of 2007, under Section 3(1) of the
Uttar Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986, police
station Mohammadabad, district Ghazipur
for enhancement of sentence awarded to
the appellant.

3- One Piyush Kumar Rai, son of
late Krishna Nand Rai (one of the
deceased) of case crime No. 589 of 2005,
under Sections 147, 148, 149, 302, 404,
120-B
IPC
and
7
Criminal
Law
Amendment Act, police station Bhawarkol,
district Ghazipur has also filed Criminal
Revision No. 3535 of 2023 Under Section
397/401 Cr.P.C. against the aforesaid
judgement and order dated 29.04.2023 for
enhancement of sentence awarded to the
appellant.

4- After the conviction of the
appellant by the Trial Court, when this
appeal (Criminal Appeal No. 5295 of 2023)
was filed, a Coordinate Bench of this Court
vide order dated 24.07.2023 has suspended
the sentence of the appellant and he was
directed to be released on bail, but prayer to
stay the conviction of the appellant was
rejected.

5- The State of U.P. did not
challenge
the
above
order
dated
24.07.2023, whereby this Court while
suspending the sentence, granted bail to the
appellant before the Hon'ble Supreme
Court, but the appellant being aggrieved
and dissatisfied with the part of above order
of this Court dated 24.07.2023 refusing to
stay the conviction of the appellant, has
filed Criminal Appeal No. 3838 of 2023
before the Hon'ble Supreme Court, which
has been disposed of suspending the
7 All. Afjal Ansari Vs. State of U.P.
1141
conviction of the appellant vide order dated
14.12.2023 [Afjal Ansari Vs. State of
Uttar Pradesh, (2024)2 SCC 187] with
certain directions, which are as under:-

"24. We, thus, deem it
appropriate to partially allow this
appeal and suspend the conviction
awarded to the Appellant in Special
Sessions Trial No. 980/2012 subject
to
the
following
conditions,
clarifications and directions:
i.
The
Ghazipur
Parliamentary Constituency shall
not be notified for bye-election, in
terms of Section 151 of the RPA, till
the decision of the Appellant's
criminal appeal by the High Court;
ii. The Appellant shall,
however,
not
be
entitled
to
participate in the proceedings of
the House. He shall also not have
the right to cast his vote in the
House or to draw any perks or
monetary benefits;
iii. The continuance of MP
led
welfare
schemes
in
the
Ghazipur
Parliamentary
Constituency without the Appellant
being associated for the release of
grants for such schemes, is not an
irrevocable consequence as all
such Schemes can be given effect,
even in the absence of the local
parliamentary representative;
iv. The Appellant shall not
be disqualified to contest future
election(s) during the pendency of
his criminal appeal before the High
Court and if he is elected, such
election will be subject to outcome
of the First Criminal Appeal; and
v. The High Court shall
make an endeavour to decide the
Appellant's
criminal
appeal
expeditiously
and
before
30.06.2024."

6- Thereafter, on being nominated
by Hon'ble the Chief Justice, this Criminal
appeal
along
with
above
mentioned
connected matters was placed before this
Bench for hearing.

Brief facts

7- The facts that formed the
bedrock of the present Criminal Appeal No.
5295 of 2023 are that a first information
report was got lodged by Shri Ram Darash
Yadav, the then Inspector, police station
Kotwali,
Mohammadabad,
district
Ghazipur
alleging
inter-alia
that
on
19.11.2007 he along with Constable Amit
Kumar Rai, Ramashray Yadav, Akhilesh
Yadav left the police station at about 09.30
hours by Government Jeep No. UP61B
2408 for patrolling and in search of wanted
criminal. During patrolling, he came to
know
that
in
town
Mohammadabad
Yusufpur one notorious criminal Mukhtar
Ansari, son of Subhan Ullah Ansari,
resident of Mohammadabad Yusufpur,
police station Mohammadabad, district
Ghazipur is running an illegal gang of
Mafias, who individually or collectively
with the assistance of members of the gang,
for the material and monetary benefit, are
indulged
in
murder,
loot,
abduction,
extortion and other serious offences,
whereby they amassed and are acquiring
immense wealth. The gang is being run by
Mukhtar Ansari himself from jail by
issuing orders. He has a long criminal
history and due to his terror, nobody could
muster courage to lodge FIR or to depose
either against him or against members of
his gang. Recently on 29.11.2005 at about
2:45 PM, they have committed the murder
of
Krishna
Nand
Rai,
MLA
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohammadabad, for their political benefit
as a result thereof, law and orders were
disturbed. Report of the murder of Krishna
Nand Rai was lodged by the informant
Ram Narayan, which was registered at case
crime No. 589 of 2005, under Sections 147,
148, 149, 302, 404, 120-B IPC and 7
Criminal Law Amendment Act, police
station
Bhawarkol,
district
Ghazipur
against Mukhtar Ansari, Afjal Ansari,
Aejazul Haq, Munna Bajrangi alias Prem
Prakash Singh, Ataur Rehman @ Babu,
Firdaus alias Javed, in which after
culmination of investigation, charge sheet
Nos. 06 of 2006 dated 21.02.2006 and 06A
of 2006 dated 15.03.2006 were submitted.
Similarly, on 22.1.1997 at about 17:45 PM
one Nand Kishore Rugta alias Nandu Babu
was abducted in a Maruti car by four
persons. The report of the said case was got
registered by Mahavir Prasad Rugta against
some unknown persons including Vijay
Singh. During investigation by C.B.I., the
name of Mukhtar Ansari, Shahabuddin,
Ataur
Rehman
@
Babu,
Barvindar,
Gurmeet Singh, Jasveer Singh, Laxmi
Yadav and Jitendra surfaced and charge
sheet has been submitted in the said case
crime No. 19/1997 under Section 364A,
365 IPC (converted under Section 364A,
365, 302,120B,34 IPC), Police Station,
Bhelu Pur District Varanasi. Taking
cognizance of said cases, the gang chart
has been approved by the District
Magistrate, Ghazipur on 19.11.2007 qua
Mukhtar Ansari, Afjal Ansari and Aejazul
Haq with the allegation that they with the
help of their associates for pecuniary,
material, political and temporal gain,
committed offence under chapter XVI,
XVII and XXII of IPC, therefore, it is
necessary to lodge FIR against them
under Section 3(1) of the Uttar Pradesh
Gangsters and Anti Social Activities
(Prevention) Act, 1986.
8- On the basis of the aforesaid
first information report dated 19.11.2007,
three cases being case crime No. 1051 of
2007 against Mukhtar Ansari, case crime
No. 1052 of 2007 against Afjal Ansari
(appellant) and case crime No. 1053 of
2007 against Aejaz alias Aejazul Haq under
Section 3(1) of the Uttar Pradesh Gangsters
and Anti Social Activities (Prevention) Act,
1986 were separately registered at police
station Mohammadabad, district Ghazipur.
Charge sheet was also separately filed
against each of them and they have also
been tried separately. Details of the same
are as under:-

(i) Special Session Trial
No. 90 of 2012 arising out of case
crime No. 1051 of 2007 against
Mukhtar Ansari, in which vide
judgment
and
order
dated
29.04.2023 of the trial Court, he
was convicted and sentenced under
Section 3(1) of the Uttar Pradesh
Gangsters
and
Anti
Social
Activities (Prevention) Act, 1986 to
ten
years,
against
which
he
preferred Criminal Appeal no. 6029
of 2023 before the High Court, but
during pendency of said Criminal
Appeal, Mukhtar Ansari died on
28.03.2024.
(ii) Special Session Trial
No. 980 of 2012 arising out of case
crime No. 1052 of 2007 against
Afjal Ansari (appellant), in which
vide judgment and order dated
29.04.2023 of the trial Court, he
has been convicted and sentenced
under Section 3(1) of the Uttar
Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986 to
four years' simple imprisonment
against which he preferred present
Criminal Appeal No. 5295 of 2023.
7 All. Afjal Ansari Vs. State of U.P.
1143
(iii) Special Session Trial
No. 8 of 2012 arising out of case
crime No. 1053 of 2007 against
Aejaz alias Aejazul Haq, but he
also died during pendency of his
trial.

9- In the gang chart prepared
against the appellant-Afjal Ansari, only one
case being Case Crime No. 589 of 2005,
under Sections 147, 148, 149, 302, 307,
404, 120-B IPC and 7 Criminal Law
Amendment Act, police station Bhawarkol,
district Ghazipur has been cited.

10- In the present case arising out
of case crime No. 1052 of 2007, under
Section 3(1) of the Gangsters Act, after
culmination of investigation, the charge
sheet No. 100/2010 dated 02.09.2010 was
filed against the appellant-Afjal Ansari, on
which the learned Special Judge, Gangsters
Act, Varanasi took cognizance of offence
on 15.9.2010.

11- After twelve years from the
date of taking cognizance, on 23.9.2022
charges were framed against appellantAfjal Ansari.

12- In order to prove its case
beyond the hilt, the prosecution has
examined as many as following seven
witnesses :-

PW-1, Shri Ram Darash
Yadav,
PW-2, Shri Surya Prakash
Yadav,
PW-3,
Head
Constable
Ram Dular Yadav,
PW-4,
Shri
Narendra
Pratap Singh,
PW-5, Om Prakash Singh,
PW-6, Ram Narayan Rai
PW-7, Om Prakash Singh.

13-

Out
of
the
aforesaid
prosecution witnesses, only PW-6, Ram
Narayan Rai has been examined as a
witness of fact to prove that the appellant is
a Gangster and is member of a gang of
Mukhtar Ansari. Rest of the witnesses are
formal one. It would also be worthwhile to
refer
the
statement
of
prosecution
witnesses.

14- PW-1, Ram Darash Yadav in
his
examination-in-chief,
which
was
recorded on 12.1.2023, has stated that on
19.11.2007 he was posted as Inspector of
police station Kotwali, Mohammadabad,
Ghazipur. On that date while he was on
patrolling and in search of criminal, he got
information from the people that there is a
gang of Mukhtar Ansari, which is involved
in
anti-social
activities
and
criminal
activities, like murder and extortion etc. for
his political benefit. Due to the aforesaid
act of the gang, there is an atmosphere of
fear and terror in the vicinity as a result
thereof people do not report the matter in
the police station or depose against them.
On the aforesaid information and keeping
in view the past criminal history, gang chart
was prepared and was got approved by the
higher authorities on 19.11.2007 at 22:30
hours and thereafter three separate cases
were registered against Mukhtar Ansari,
Afjal Ansari and Aejaz alias Aejazul Haq at
case crime No. 1051 of 2007, 1052 of 2007
and 1053 of 2007 respectively under
Section 3(1) of the Uttar Pradesh Gangsters
and Anti Social Activities (Prevention) Act,
1986.

15- He further deposed that as per
gang chart, Afjal Ansari is named in the
murder case of Krishna Nand Rai along
with Mukhtar Ansari, Aejaz alias Aejazul
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
Haq and Munna Bajrangi alias Prem
Prakash in case crime No. 589 of 2005,
under Sections 147, 148, 149, 302, 504,
120-B IPC and Section 7 Criminal Law
Amendment Act.

16- He also deposed that when the
aforesaid incident was occurred, he was
posted in the Narcotic Cell of CBCID
Headquarters, Lucknow as Inspector. In
Ghazipur, he was posted on 08.07.2007 as
In-charge
Inspector,
Mohammadabad.
During patrolling of his area, there was
general discussion among the public about
the atmosphere of fear and terror, which
persists for about 3-4 months, thereafter
gradually the atmosphere became normal.

17- This witness further deposed in
his examination-in-chief that as per his
knowledge, the leader of the gang was
Mukhtar Ansari, who was having a criminal
history of 32 cases. Against the present
appellant Afjal Ansari, who was a member
of the gang, there is only one case being
case crime No. 589 of 2005. Against
Aejazul Haq also there is only one case.

18- He has also proved his first
information report, which is available on
record at paper No. 102B/3 and 102B/4, the
original copies whereof are available in
SST No. 90 of 2012. He also proved the
certified copies and marked as Ext. Ka-1.
He also deposed that on the basis of one
first information report, three cases have
been
registered,
in
which
after
investigation, separate charge sheet has
been submitted.

19- This witness also proved his
signature on the certified copy of the gang
chart. He also deposed that original copy of
the gang chart is available in SST No. 90 of
2012.
He
also
deposed
that
first
information report is in his writing and he
put his signature thereon and proved his
signature, which has been marked as Ext.
Ka-2.

20- There is signature of Ritu
Maheshwari, the then District Magistrate
on the gang chart. This witness has also
stated that as per his knowledge, the modus
operandi and purpose of this gang was to
gain political, economic and social benefit.
His statement under Section 161 Cr.P.C.
was also recorded by the investigating
officer during investigation.

21- PW-2, Inspector Surya Prakash
Yadav, son of Ram Navmi Yadav, in his
examination-in-chief, which was recorded
on
19.1.2023,
has
stated
that
on
16.04.2008, he was posted at police station
Bhawarkol as Station House Officer. Case
Crime Nos. 1051 of 2007, 1052 of 2007
and 1053 of 2007, under Section 3(1) of the
Uttar Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986 were
registered
at
police
station
Mohammadabad, district Ghazipur, which
were initially investigated by Ram Swaroop
Verma. On 16.04.2007, he has also gone
through the earlier papers written by the
previous investigating officer and recorded
the statement of writer of the FIR Ram
Dular Yadav, writer of FIR of case crime
No. 589 of 2005, Head Muharrir Om
Prakash Singh and investigating officer
Shri Om Prakash Singh of case crime No.
589 of 2005, under Sections 147, 148, 149,
302, 307 and 120-B IPC as well as the
complainant of that case Ram Narayan Rai
in the case diary. Thereafter, he was
transferred and investigation was done by
Paltu Ram, S.O. Bhawarkol.

22- PW-3, Head Constable Ram
Dular Yadav, in his examination-in-chief
7 All. Afjal Ansari Vs. State of U.P.
1145
dated 19.1.2023, has deposed that on
19.11.2007, he was posted at police station
Mohammadabad as Constable-Muharrir.
On that date, on the basis of written
information of In-charge Inspector Ram
Darash Yadav, he lodged cases at case
crime No. 1051 of 2007, 1052 of 2007 and
1053 of 2007, under Section 3(1) of the
Uttar Pradesh Gangsters and Anti Social
Activities (Prevention) Act, 1986 at police
station Mohammadabad, district Ghazipur
against Mukhtar Ansari, Afjal Ansari and
Aejazul Haq respectively. He has also
proved the copy of Chik FIR at paper Nos.
102B/1 and 102B/2, the original whereof is
available in the record of Session Trial No.
90 of 2012. He has proved his writing and
signature on the original copy of the FIR by
stating that original copy of FIR is in my
writing and signature. After matching the
photocopy of the FIR with the original one,
he also certified it, which has been marked
as Ext. Ka-3. He has also proved GD No.
34 of 22:30 O'clock, the certified copy
whereof is paper No. 6A, carbon copy of
the same is available in Session Trial No.
90 of 2012.

23- He also deposed that GD has
been destroyed as per rule and the copy of
the report thereof has been proved by him
and marked as Ext. Ka-4. Copy of GD has
been marked as Ext. Ka-5. His statement
was also recorded by the investigating
officer.

24- PW-4, Narendra Pratap Singh,
son of late Gareeb Das Singh presently
posted as Superintendent of Police (Legal),
Headquarters Director General of Police,
Lucknow, in his examination-in-chief dated
25.01.2023, deposed that in the year 2006,
he was posted as Station House Officer,
Kasimabad, Ghazipur. He investigated case
crime No. 589 of 2005, under Sections 147,
148, 149, 307, 302, 404, 120-B IPC and 7
Criminal Law Amendment Act, police
station Bhawarkol, district Ghazipur, which
was related to the murder of the then
M.L.A Krishna Nand Rai and six others.

25- He further deposed that he
filed the charge sheet against three persons.
Second charge sheet was filed against
Aejazul Haq, Afjal Ansari and Mukhtar
Ansari. He proved the charge sheet filed
against Afjal Ansari and Aejazul Haq,
which was marked as Ext. Ka-6. This case
was mentioned in the gang chart and
concerned
investigating
officer
has
recorded his statement.

26- PW-5, Om Prakash Singh,
retired Inspector, son of Jeet Bahadur
Singh, in his examination-in-chief dated
25.01.2023, deposed that in the year 2005,
he was posted as In-charge Inspector of
police station Bhawarkol. He had initially
investigated case crime No. 589 of 2005
(State Vs. Mukhtar Ansari and others),
under Sections 302, 147, 148, 149, 120-B
IPC, police station Bhawarkol, district
Ghazipur, in which Afjal Ansari was also
accused.

27- He further deposed that during
initial investigation he filled two papers for
investigation, but on the same day, he was
suspended. Thereafter, the investigation of
the case was transferred to SI Kasimabad.
In this incident the then MLA and 6-7 other
persons have been assassinated. There was
anguish in the public over this incident and
law
and
order
situation
was
badly
disturbed. After his removal from the
investigation, he does not have any
information about the investigation. During
his suspension period, he was transferred to
Ballia. His statement was also recorded by
the investigating officer.
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
28- PW-6, Ram Narayan Rai, son
of late Jagannath Rai, in his examinationin-chief,
which
was
recorded
on
04.02.2023, deposed that he has come to
depose in the case related to Gangsters Act.
This case has been registered for the
criminal conspiracy in the murder case of
his brother Krishna Nand Rai, who was
murdered on 29.11.2005. When Krishna
Nand Rai was assassinated, he was with
him. In the murder of his brother, 6-7
persons were involved. Munna Bajrangi
and Jeeva etc. were involved. Murder was
committed at 2:45 PM in village Basniya
and the persons who committed the murder
was armed with heavy weapons. After this
incident, there was an atmosphere of fear
among the people.

29- This witness further deposed that
as per his knowledge, Afjal Ansari was
conspirator. Afjal Ansari and Mukhtar Ansari
etc. were having a gang consisting of 50-60
persons. He also stated that leader of the gang
is Afjal Ansari against whom 5-6 cases are
registered. In addition thereto about 50-60
cases are registered against Mukhtar Ansari.
The main aim of this gang is to murder people
and to grab the land by putting the people in
fear. In the murder case of his brother Krishna
Nand Rai, six people were also assassinated.
An atmosphere of fear continued for five-six
months after this incident.

30- He also deposed that in the
murder case of his brother accused were
acquitted. He cannot say why accused were
acquitted in that case. He got the case
registered at police station Bhawarkol relating
to murder case of his brother. His statement
was also recorded by the investigating officer.

31- After the statement of PW-6,
Ram Narayan, on an application under
Section 311 Cr.P.C., PW-2, Inspector Surya
Prakash Yadav, son of Ram Navmi Yadav
was recalled for cross-examination. He, in
his cross-examination dated 14.02.2023
deposed that the statement given by the
informant Ram Narayan Rai in paragraph
No. 3 of his examination-in-chief that " as
per his knowledge, Afjal Ansari was
conspirator. Afjal Ansari and Mukhtar
Ansari were have a gang having 50-60
persons. He also stated that leader of the
gang is Afjal Ansari against whom 5-6
cases are registered. In addition thereto
about 50-60 cases are registered against
Mukhtar Ansari. The main object of this
gang is to murder the person and to grab
the land by putting the people in fear" has
not been told to him, but he has only stated
that accused persons are vicious criminals,
who have a gang.

32- PW-7, SI Om Prakash Singh,
son of Daya Shanker Singh, in his
examination-in-chief
dated
04.02.2023,
deposed that on 29.11.2005, he was posted
at police station Bhawarkol as Head
Muharrir. On that date, on the written
information of Ram Narayan Rai he has
registered a case at case crime No. 589 of
2005, under Sections 147, 148, 149, 302,
307, 120-B and 404 IPC and 7 Criminal
Law Amendment Act against Munna
Bajrangi, Mukhtar Ansari, Afjal Ansari,
Aejazul Haq. He proved the photocopy of
the Chik FIR and marked it as Ext. Ka-7.

33- This witness further deposed
that the investigation of the case was
conducted by SO Paltu Ram and SHO of
Bhawarkol Daya Shanker Pandey. The
charge sheet was filed by Daya Shanker
Pandey in the year 2010. When he was
posted at police station Bhawarkol, district
Ghazipur, he was familiar with his writing
and signature. He verified the writing and
signature of Daya Shanker Pandey. As such
7 All. Afjal Ansari Vs. State of U.P.
1147
he proved the charge sheet, which was
marked as Ext. Ka-8.

34- SO Paltu Ram and SHO
Bhawarkol Daya Shanker Pandey have died
and their death reports are on record.

35-

After
the
closure
of
prosecution evidence, the statement of the
accused,
Afjal
Ansari,
son
of
late
Subhanullah Ansari under Section 313
Cr.P.C. was recorded in question-answer
form, translated version whereof are
reproduced herein-under:

Question No. 1: As per
prosecution, you have a gang, of
which your are a leader. What do
you have to say in this regard?
Answer: Statement of the
prosecution is absolutely wrong.
Neither have I any gang nor am I a
member of any gang.
Question
No.
2:
The
prosecution has stated that you
along with other members have
formed an organized gang for their
economic and material gain, who
are in the habit of committing
offence mentioned under Chapter
16, 17 and 22 IPC. What do you
want to say in this regard?
Answer: The statement of
the prosecution is completely false
and baseless.
Question No. 3: In the gang
chart related to this case, a case has
been registered against you, being
case crime No. 589 of 2005, under
Sections 302, 307, 147, 148, 149,
120-B IPC and 7 Criminal Law
Amendment Act. What do you have
to say in this regard?
Answer: The complainant
of that case Ram Narayan Rai, due
to political reason, has made
allegation of criminal conspiracy
against me. The trial of that case
was conducted by the Special CBI
Court/MP/MLA in New Delhi, in
which he has been acquitted. He
had nothing to do with that
incident. The certified copy of
order of the Court has been
produced before the Court.
Question No. 4: Where
were you at the time of death of
Krishna Nand Rai, the deceased of
case crime No. 589 of 2005, under
Sections 302, 307, 147, 148, 149,
120B IPC and Section 7 Criminal
Law
Amendment
Act,
PS
Bhawarkol, district Ghazipur?
Answer: On the date of
alleged incident, I was in Delhi and
was attending the Lok Sabha
Session, which was going on that
day. As per the report of the
complainant,
role
of
hatching
conspiracy has been attributed to
me and as per prosecution story I
have hatched conspiracy before the
incident on 25th October, 2005 in
Ghazipur Court, whereas the fact is
that on 24th and 25th of October, I
was in Lucknow and on 26th
October, I met His Excellency the
President of India along with a
delegation in Delhi, which clearly
goes to show that on 25th October,
2005
I
cannot
hatched
any
conspiracy in Ghazipur.
Question No. 5: Apart from
you, the names of 06 other accused
persons are mentioned in the gang
chart. What do you want to say in
this regard?
Answer:
In
respect
of
incident, which took place on 29th
November, 2005, the persons, who
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
have been made accused and
charge sheeted, and whose names
also find place in the gang chart, he
has also been made co-accused in
the said gang chart. In that case
judgment of the Court has come.
He does not have any other
criminal history with other people
named in gang chart. Out of the
persons
whose
names
are
mentioned in the gang chart,
Aejazul Haq, who is my brother-inlaw is 90% disabled, Mukhtar
Ansari is my younger brother and
rest are not known to him.
Question No. 6: According
to the prosecution, your alleged
gang has been assigned number IS
191. What do you want to say in
this regard?
Answer: During the entire
trial, no such fact has come on
record that I am a member of any
IS 191 gang. I am not aware of any
such fact.
Question No. 7: What do
you want to say in respect of
evidence of PW-1 Shri Ram Darash
Yadav.
Answer: As a complainant
of this case, Shri Ram Darash
Yadav under the influence of his
higher officers, has lodged the FIR
against me on false and baseless
allegation only on hearsay and on
the basis of previously registered
case crime No. 589 of 2005.
Question No. 8: What do
you want to say in respect of FIR
(Ext. Ka-1) and Gang Chart (Ext-
Ka-2), proved by PW-1.
Answer: In this regard I
had raised an objection at that stage
that on the basis of one first
information report, three cases have
been
registered
against
three
different
persons
and
separate
charge sheet has been filed. There
is only one FIR, which bears the
signature of the complainant. The
gang
chart,
which
has
been
prepared for this case is also only
one, which bears the signature of
the
complainant
and
as
per
convenience two cases have been
registered
after
getting
it
photocopied, which is against the
rule. The gang chart was also
forwarded and approved on the
same day by all the officers, for
which no plausible reason has been
tendered, which is also against the
rule. The gang chart was also
prepared
wrongly
under
the
pressure of the higher officers.
Question No. 9: What do
you have to say regarding the
evidence of PW-2 Surya Prakash
Yadav?
Answer: In the capacity of
investigating officer, Shri Surya
Prakash Yadav has not investigated
the case fairly. The investigation
has been conducted in an arbitrary
manner.
Question No. 10: PW-3 HC
Shri Ram Dular Yadav has proved
the first information report and GD
etc. What do you want to say?
Answer: The case has been
registered ante-timed at the behest
of higher officers.
Question No. 11: What do
you have to say in respect of
evidence of PW-4, Shri Narendra
Pratap Singh?
Answer: There is nothing
to say in this regard.
Question No. 12: What do
you want to say in respect of
7 All. Afjal Ansari Vs. State of U.P.
1149
evidence of PW-5 Om Prakash
Singh?
Answer: I have nothing to
say as he has not given any
evidence against me.
Question No. 13: It has
been
alleged
by PW-6, Ram
Narayan Rai that you have been a
conspirator in the murder of his
brother. What do you have to say in
this regard?
Answer: The allegations
are absolutely false and has been
levelled due to political malice.
Question No. 14: PW-7 SI
Om Prakash Singh has proved Ext.
Ka-7 and Ka-8. What do you have
to say in this regard?
Answer: Since, he has not
given any evidence against me,
therefore, I have nothing to say.
Question No. 15: Do you
want to say anything more?
Answer: I will file my brief
written statement.
Question No. 16: Do you
want to give defence evidence.
Answer: Yes

36- After the statement of the
accused-Afjal Ansari under Section 313
Cr.P.C. is over, in support of his case, the
accused-appellant
has
also
produced
following three defence witnesses.

DW-1, retired Honorary
Captain Heera Lal Singh Yadav,
DW-2, Shanker Dayal Rai
DW-3 Baliram Patel.

37- DW-1, retired Honorary
Captain Heera Lal Singh Yadav, son of Shri
Ramjas Yadav in his examination-in-chief
dated 21.2.2023 has deposed that his
residence falls within the constituency of
Ballia and Shri Afjal Ansari is Member of
Parliament from Ghazipur. He knows Afjal
Ansari since 2001. After his retirement
from army, he is doing agriculture, animal
husbandry as well social work. On account
of social work, he used to come and go to
the public representatives. Popularity of
Afjal Ansari was not only confined to
Ghazipur, but in whole of eastern region.
His reputation and his working is very
good. He does not discriminate amongst the
public.

38- There are certain political
opponent of Afjal Ansari and in spite of his
opposition, his reputation is good. His
Ancestor late Usman Ali was in the Indian
Army and he was martyred. Ghazipur is
known for its Army. Family of Afjal Ansari
is also having history and with confidence I
can say that neither he has any gang nor a
member thereof.

39- Grand father of Afjal Ansari late
Mukhtar Ahmad Ansari also participated in the
freedom movement and Afjal Ansari also has
great respect for the work done by his ancestor.
Afjal Ansari also helps poor, downtrodden and
neglected people as per their demand.

40- DW-2, Shanker Dayal Rai, son of
late Vashishth Narain Rai in his examination-inchief, which was recorded on 23.2.2023 has
deposed that he had been a teacher in
Mohammadabad Inter College and retired from
the said school as Principal in the year 2014.
Thereafter, he started agriculture and social
work. He knows Afjal Ansari for the last about
40 years. He is very popular for his public
service and public welfare. His reputation in the
society is to help the poor and downtrodden.

41- He further deposed that his
residence comes within the constituency of
Mohammadabad. Due to his popularity,
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Afjal
Ansari
was
the
Member
of
Legislative Assembly for five consecutive
terms and at present he is Member of
Parliament from Ghazipur constituency.
Prior to this from 2004-2009 also he was
elected
member
from
Ghazipur
constituency. He is a member of reputed
Ansari's family. His ancestor has also
sacrificed for the freedom movement. In
the society, his reputation is of a popular
public representative. He has neither any
illegal gang in society nor he has been a
member of any such gang. He does not
ready to do any illegal work at anyone's
request and also refused to do such work.
He has firm belief in the Constitution of
India.

42- This witness also deposed that
although the unsuccessful and depressed
political opponent used to make false
accusation against him, but they did not get
success in it and no aspersion is cast on the
reputation of Afjal Ansari and he gets full
public support.

43- DW-3, Shri Baliram Patel, son
of Kishun Patel, in his examination-inchief, which was recorded on 23.2.2023 has
deposed that he had been Gram Pradhan for
two terms, his wife and uncle were also
Gram Pradhan. His family hold the post of
Gram Pradhan for four terms. He does
agricultural and animal husbandry work. In
addition thereto he also has interest in
social work. He knows Afjal Ansari for the
last 40 years. Afjal Ansari belongs to a
reputed family and he also helps the poor
for which he is very popular in the society.

44- He further deposed that due to
his popularity, he was elected Member of
Legislative Assembly for the five terms and
Member of Parliament for two terms. At
present, he is Member of Parliament from
Ghazipur constituency. He is a symbol of
communal harmony. His door is always
open for the poor, downtrodden and
neglected section of the society and he
helps every one. A fist of person advertise
against him for their political gain, but the
general public are in his support. Due to his
work and reputation in the society, he is
very popular and has good hold in the
society.

45- This witness also deposed that
Afjal Ansari is neither having any illegal
gang nor is a member of any gang. He
always opposed the persons indulged in
illegal activities.

46- Learned Additional Sessions
Judge/Special Judge, M.P./M.L.A Court,
Ghazipur after having heard the learned
counsel for the parties and scrutinizing the
evidence, convicted and sentenced the
accused-appellant
as
mentioned
in
paragraph No.1. Hence the aforesaid two
Criminal Appeals
and
one
Criminal
Revision have been preferred. They are
being dealt with and decided together.
Firstly this Court proceeds to deal Criminal
Appeal No. 5295 of 2024.

Submissions on behalf of the
appellant in Appeal

47-

Shri
Gopal
Swaroop
Chaturvedi,
learned
Senior
Counsel
appearing on behalf of the appellant has
placed the following submissions:

47.1- Armed with the decision of
Hon'ble Supreme Court in the case of
Farhana Vs. State of U.P. and others
2024 SCC OnLine SC 159, Shri Chaturvedi
submits that if the single base case on the
basis whereof, the Gangsters Act has been
imposed, has ended in acquittal, the case
7 All. Afjal Ansari Vs. State of U.P.
1151
under the Gangsters Act cannot be
sustained, hence impugned judgment and
order of conviction and sentence of
Appellant-Afjal Ansari is liable to be setaside.

47.2- Relying upon the judgment of
the Hon'ble Apex Court in the case of
Sangeetaben Mahendrabhai Patel Vs.
State of Gujarat and another (2012) 7 SCC
621 and Ashwani Kumar @ Ashu &
another Vs. State of Punjab (2015) 6 SCC
308, it is next submitted that findings of
acquittal recorded in favour of the appellantAfjal Ansari by the Trial Court at Delhi while
acquitting him by judgment and order dated
dated 03.07.2019 in base case being FIR No.
46/2005 dated 29.11.2005 (case crime No.
589 of 2005) would constitute as estoppel
against the prosecution in the present case,
hence the same cannot be doubted taking any
adverse
inference
that
acquittal
was
undeserved or unwarranted.

47.3- Relying upon the judgment of
the Hon'ble Apex Court in the case of
Kharkan and others Vs. State of U.P.
(1965) AIR (SC) 83, it is submitted that in
view of provisions of Section 40 to 43 of
Evidence
Act,
whatever
observations
regarding the witnesses being hostile have
been made by the trial Court in the judgment
and order of acquittal dated 03.07.2019 of the
appellant in base case, are not admissible in
the present case for the purpose of relying
upon the appreciation of the evidence. The
said judgment is admissible only to show the
parties and the decision.

47.4- The evidence cannot be led
to rebut a finding recorded between the
same party in previous trial.

47.5- PW-6 Ram Narayan Rai is
the only witness of fact of this case and he
is also informant /complainant of base case
crime No. 589 of 2005 claiming himself to
be one of the eye witnesses of the incident
dated 29.11.2005 and was examined as
PW-35 in that case, but presence of Ram
Narayan Rai on the spot in the incident
dated 29.11.2005 of base case, has been
disbelieved by the Trial Court at Delhi,
therefore he is wholly unreliable witness
and his testimony cannot be taken into
consideration in the present case.

47.6- It is also pointed out that
each and every ingredients of offence under
Section 3(1) of the Uttar Pradesh Gangsters
and Anti Social Activities (Prevention) Act,
1986 are lacking in the statement under
Section 161 Cr.P.C. of PW-6.

47.7- Referring to the judgment of
the Hon'ble Apex Court in the case of
Tahsildar Singh Vs. State of U.P. (1959)
AIR (SC) 1012, it is submitted that there
are several omissions in the statement
under Section 161 Cr.P.C. of PW-6, which
amounts to material contradictions and will
hit by Section 162 Cr.P.C. Mr. Chaturvedi
in order to strengthen his submission, while
referring the para 3 and 6 to 11 of the
statement of Ram Narayan Rai (PW-6)
further submitted that the omissions are
with regard to existence of gang of the
appellant-Afjal Ansari as well as object and
antisocial activities of his gang.

47.8-