# Alam (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-26
- **Case number:** Criminal Appeal No.888 of 2016
- **Bench:** Mahesh Chandra Tripathi, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alam-in-jail-v-state-of-u-p-48792
- **Pages:** 18

## Headnote

Law-
Indian
Evidence
Act,
1872- Section 3- It is established that
P.W.-1
is
changing
his
stand
with
respect to place of incident - These are
material contradiction in the statement
of P.W.-1 and has not been explained by
prosecution, as such, evidence of P.W.-1
cannot be relied upon- Statement of
P.W.2 is not consistent with respect to
place of incident as well as evidence of
P.W.2 is not corroborated by evidence of
P.W.1, thus, evidence of P.W.2 is also
not reliable and trustworthy-P.W.-3 is
not eye-witness of the incident and his
evidence
is
also
not
reliable
and
trustworthy.

Settled law that material contradictions in the
testimonies of the prosecution witnesses, that
go to the root of the matter and are
uncorroborated,
render
the
case
of
the
prosecution doubtful.

Indian Evidence Act, 1872- Section 3-
Ocular evidence has greater evidentiary
value vis-a-vis medical evidence. In the
present matter, we also find that there
is
inconsistency
of
the
prosecution
witnesses of fact and after close scrutiny
of the medical evidence, we find that
ocular evidence may be discarded-These
three witnesses claim themselves to be
the eye witness of the occurrence but
their
description
seven
steps
and
considering the statement of PW-4- Dr.
R.S. Rabidas that the gun shot fired from
very close range (few inches) are such
circumstances
which
remain
unexplained.
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Although the ocular evidence will prevail over
the medical evidence in case of contradiction
between the two, but where the contradiction
between the ocular version and medical
evidence is too much then the ocular version
may not be believed by the court.

Code of Criminal Procedure, 1973- Section
154- First Information Report- Section
157-
Special
Report-U.P
Police
Regulations-
Section
101-
NonCompliance- Ante- Timed F.I.R- Constable
Clerk Tarachand Special Report Messenger
has not been produced by prosecution
which also makes the prosecution case
doubtful and strengthen the argument of
learned counsel for the appellants on
defective investigation-Special report of
the case has not been sent according to
rule and regulation which is proved from
the statement of P.W.10 Mahak Singh
Head Constable. The statement of P.W.1,
PW.5 and P.W.11 further reveals that FIR
in this case is ante-timed.

Where the prosecution has failed to comply with
the mandate of Section 157 of the Cr.Pc and
has deliberately withheld the police officer
responsible for sending the same, the
investigation is apparently defective and it is
demonstrated
from
the
evidence
of
the
prosecution witnesses that the first information
report is ante-timed, then the same makes the
story of the prosecution doubtful. (Para 26, 28,
30, 31, 32, 36, 37, 40, 44)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon/cited:-

## Text

_Characters 0–38,991 of 55,883. This is a partial read: ask again with offset=38991 for what follows._

6 All. Alam Vs. State of U.P.
459
appellant Rakesh herein is entitled to be
given benefit of doubt and is to be
acquitted for the offence punishable under
Section 396 IPC.

67. In view of the above discussion,
the judgment and order dated 06.02.1984
passed by the Second Additional Sessions
Judge, Fatehpur in Sessions Trial no.145 of
1993 arising out of Case Crime no.139 of
1982 under Section 396 IPC, P.S- Malwan,
District-Fatehpur
for
the
offence
punishable under Section 396 IPC and
sentence for life imprisonment is hereby set
aside.

68. The appeal is, accordingly,
allowed.

69. The appellant is in jail.

70. The appellant shall be released
from jail forthwith, unless he is wanted in
any other case.

71. The office is directed to send back
the lower court record along with a
certified
copy
of
the
judgment
for
information and necessary compliance.

72. The compliance report be
furnished to this Court through the
Registrar General, High Court Allahabad.
----------
(2022)06ILR A459
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.05.2022

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No.888 of 2016
With
Criminal Appeal No.639 of 2016

Alam ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Mukhtar Alam, Sri Saquib Mukhtar, Sri
Deepak Kumar, Sri Mahipal Singh, Sri Sangam
Lal Kesarwani, Sri Veer Singh

Counsel for the Respondent:
Sri A.N. Mulla, Sri S.N. Mishra

Criminal
Law-
Indian
Evidence
Act,
1872- Section 3- It is established that
P.W.-1
is
changing
his
stand
with
respect to place of incident - These are
material contradiction in the statement
of P.W.-1 and has not been explained by
prosecution, as such, evidence of P.W.-1
cannot be relied upon- Statement of
P.W.2 is not consistent with respect to
place of incident as well as evidence of
P.W.2 is not corroborated by evidence of
P.W.1, thus, evidence of P.W.2 is also
not reliable and trustworthy-P.W.-3 is
not eye-witness of the incident and his
evidence
is
also
not
reliable
and
trustworthy.

Settled law that material contradictions in the
testimonies of the prosecution witnesses, that
go to the root of the matter and are
uncorroborated,
render
the
case
of
the
prosecution doubtful.

Indian Evidence Act, 1872- Section 3-
Ocular evidence has greater evidentiary
value vis-a-vis medical evidence. In the
present matter, we also find that there
is
inconsistency
of
the
prosecution
witnesses of fact and after close scrutiny
of the medical evidence, we find that
ocular evidence may be discarded-These
three witnesses claim themselves to be
the eye witness of the occurrence but
their
description
seven
steps
and
considering the statement of PW-4- Dr.
R.S. Rabidas that the gun shot fired from
very close range (few inches) are such
circumstances
which
remain
unexplained.
460 INDIAN LAW REPORTS ALLAHABAD SERIES
Although the ocular evidence will prevail over
the medical evidence in case of contradiction
between the two, but where the contradiction
between the ocular version and medical
evidence is too much then the ocular version
may not be believed by the court.

Code of Criminal Procedure, 1973- Section
154- First Information Report- Section
157-
Special
Report-U.P
Police
Regulations-
Section
101-
NonCompliance- Ante- Timed F.I.R- Constable
Clerk Tarachand Special Report Messenger
has not been produced by prosecution
which also makes the prosecution case
doubtful and strengthen the argument of
learned counsel for the appellants on
defective investigation-Special report of
the case has not been sent according to
rule and regulation which is proved from
the statement of P.W.10 Mahak Singh
Head Constable. The statement of P.W.1,
PW.5 and P.W.11 further reveals that FIR
in this case is ante-timed.

Where the prosecution has failed to comply with
the mandate of Section 157 of the Cr.Pc and
has deliberately withheld the police officer
responsible for sending the same, the
investigation is apparently defective and it is
demonstrated
from
the
evidence
of
the
prosecution witnesses that the first information
report is ante-timed, then the same makes the
story of the prosecution doubtful. (Para 26, 28,
30, 31, 32, 36, 37, 40, 44)

Criminal Appeal allowed. (E-3)

Judgements/ Case law relied upon/cited:-

1. Raj Kumar Prasad Tamarkar Vs St. of Bih. &
Ors, 2007(57) ACC 1099

2. Thaman Kumar Vs St. of U.T of Chandi.,
(2003) 6 SCC 380

3. Punjab Singh Vs St. of Har., 1984 Supp SCC 233

4. Anil Rai Vs St. of Bih., (2001) 7 SCC 318

5. Abdul Sayeed Vs St. of M.P, (2010) 10 SCC
259
6. Jagdish Murav Vs St. of U.P. & Ors, 2006 (3)
ACR 2726 (SC)

7. Crl. Appeal No.3019/1986 (Bachhi Lal and
Others Vs State of U.P.) dt. 24.4.2019

8. Mani Ram Vs St. of U.P. 1994 (Supp 2) SCC
289

9. Sudhakar @ Sudharasan Vs St., (2018) SCC
435

10. Jafel Biswas and others Vs St. of W.B, AIR
2019 SC 519 ( cited)

11. Hema Vs St. thru Insp. of Police, Madras,
(2013) 10 SCC 192 (cited)

12. C. Muniappan & ors. Vs St. of T.N., AIR
2010 SC 3718 ( cited)

13. Pala Singh & anr. Vs St. of Punj., 1972 (2)
SCC 640 ( cited)

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

1. The present Criminal Appeals have
been filed against the Judgment and Order
dated 14.1.2016 passed by the Special Judge /
Additional Sessions Judge, Bijnor in Session
Trial No.485-A of 2011 (State vs. Alam);
Session Trial No.485 of 2011 (State vs. Noor
Mohammad and Others), arising out of Case
Crime No.52 of 2011, under Sections 302/34,
323/34 IPC, P.S. Mandawar, District Bijnor,
whereby appellants were convicted for life
imprisonment under Sections 302/34 IPC and
fine of Rs.20,000/- each, in default of
payment of fine, six months additional R.I.
and under Section 323/34 IPC, 3 months R.I.
and fine of Rs.500/- each, in default of
payment of fine, one month additional R.

2.

Being
aggrieved
therefrom,
accused Alam preferred Criminal Appeal
6 All. Alam Vs. State of U.P.
461
No.888 of 2016 and accused Noor
Mohammad, Deen Mohammad preferred
Criminal Appeal no.639 of 2016 for setting
aside their conviction and passing an order
of acquittal.

3. Since common issues are involved
in both the appeals, both are being disposed
of by a common order. The facts stated in
Criminal Appeal No.888 of 2016 shall be
treated as the leading appeal.

4. The brief facts relating to case are
that Salamat (son of deceased) submitted a
written report at Police Station with the
averment that he is resident of village
Khirani, P.S. Mandawar, District Bijnor. His
father purchased about 18 bigha land 2 years
before from Hamid, son of Jamaluddin that is
why Noor Mohammad, Deen Mohammad,
Alam were on enemical terms to his father.
On 19.3.2011 at 7.15 PM (evening), his
younger brothers Riyasat and Faizan went to
purchase items from the grocery shop of
Habib, at that moment , Noor Mohammad,
Deen Mohammad and Alam armed with
countrymade pistol, came there, abused them
and started altercation with Riyasat. Faizan
came back from shop and told about the
incident to his father, then he and his father
Aslam reached at the shop of Habib and tried
to protect Riyasat, at that time, Alam fired
shot from his countrymade pistol on the head
of his father, who died on spot. He and
Riyasat tried to catch Alam, then Noor
Mohammad and Deen Mohammad with an
intention to kill, fired shot from their
countrymade pistol but he and Riyasat were
escaped narrowly. The prayer was made to
register the report and legal action be taken.
Rafeeq son of Imam Shah and Others were
mentioned as witness of the incident.

5. On the basis of written report, Case
Crime
No.
52/2011,
under
Sections
302/323/307/34 IPC was registered against
accused Alam, Noor Mohammad, Deen
Mohammad on 19.3.2011 at 8.30 PM and
investigation of the case was handed over to
Station Officer Sunil Kumar Sharma who
went to the place of incident where S.I. Veer
Singh conducted Panchayatnama of the dead
body and after completing the formalities,
dead body was sent for postmortem. The spot
map of the place of incident was prepared,
two empty cartridges were recovered by the
police from the roof of the accused, the
memo was accordingly prepared. During
investigation, on 22.3.2011 accused were
arrested and on the pointing out of Alam,
countrymade pistol 315 bore, 2 live
cartridges, one empty cartridge 315 bore
inside the barrel and on the pointing out of
Noor Mohammad, countrymade pistol 12
bore and 2 live cartridges were recovered, the
memo were accordingly prepared. FIR was
lodged against Alam and Noor Mohammad
under Section 25 of the Arms Act on
22.3.2011 at 12.30, the investigation of the
case under the Arms Act was handed over to
H.C.P. Prem Singh. Respective Investigating
Officer
submitted
charge-sheet
against
accused Alam, Noor Mohammad and Deen
Mohammad under Sections 302/34, 307/34,
323 IPC and against accused Alam and Noor
Mohammad under Section 25 of the Arms
Act. Charges were framed against Alam,
Noor Mohammad, Deen Mohammad under
Sections 302/34, 307/34, 323 IPC and against
accused Alam and Noor Mohammad under
Section 25 of the Arms Act to which they
denied and claimed trial.

6. The prosecution in order to prove
its case, produced as many as 12 witnesses
whose particulars are as follows:

P.W.1 Salamat son of Aslam
(First
informant
and
alleged
eyewitness)
462 INDIAN LAW REPORTS ALLAHABAD SERIES

P.W.2 Faizan son of Aslam
(alleged eye-witness)

P.W.3 Rafeeq son of Imaam Shah
(alleged eye witness as well as independent
witness)

P.W.4 Dr. R.S. Ravidas

P.W.5 S.I. Veer Singh

P.W.6 Constable Jaiveer Singh
(witness of the inquest)

P.W.7
Constable
Narendra
Sharma (FIR scribe of Case Crime No. 53
of 2011 and 54 of 2011)

P.W. 8 HCP Prem Singh (IO of
Case Crime No.53 of 2014 and 54 of
2011)

P.W.9 Sub-Inspector
Shishpal
Singh

P.W.10 HC 139 Mahak Singh
Sharma (Scribe of Case Crime No.52 of
2011)

P.W.11 Sunil Sharma ( IO of
Case Crime No.52 of 2011)

P.W.12
Shailendra
Pratap
(Subsequent IO of Case Crime No.52 of
2011)

7. In support of the occular testimony
of
the
witnesses,
prosecution
filed
following documentary evidence:

1. FIR dated 19.3.2011 (Ext. Ka
19)

2. FIR dated 22.3.2011 (Ext.
Ka12)

3. Written report dated 19.3.2011
(Ext. Ka1)

4.
Panchayatnama
dated
19.3.2011 (Ext. Ka 3)

5.
Postmortem
report
dated
20.3.2011 (Ext. Ka 9)

6. Site plan dated 19.3.2011 (Ext.
Ka 21)

7. Site plan dated 23.3.2011 (Ext.
Ka 14)

8. Site plan dated 23.3.2011 (Ext.
Ka 15)

9. Charge-sheet dated 15.4.2011
(Ext. Ka 23)

10. Charge-sheet dated 23.3.2011
(Ext. Ka16)

11. Charge-sheet dated 23.3.2011
(Ext. Ka 17)

8. The accused appellants in their
statements recorded under Section 313
Cr.P.C. denied the prosecution case and
disputed the veracity of the evidence
adduced by the prosecution.

9. P.W.1 Salamat son of deceased
Aslam as well as first informant in his
examination-in-chief stated that he knows
accused
Noor
Mohammad,
Deen
Mohammad and Alam, they belong to his
village. His father purchased about 18
bigha land 2 years before from Hamid, son
of
Jamaluddin
that
is
why
Noor
Mohammad, Deen Mohammad, Alam were
on enemical terms to his father. On
19.3.2011 at 7.15 PM (evening), his
younger brothers Riyasat and Faizan went
6 All. Alam Vs. State of U.P.
463
to purchase items from the shop of Habib,
at that moment, Noor Mohammad, Deen
Mohammad
and
Alam
armed
with
countrymade pistol, came there, abusing
them and started altercation with Riyasat.
Faizan came back from shop and told about
the incident from him and his father, then
he and his father Aslam reached at the shop
of Habib and tried to protect Riyasat, at that
time,
Alam
fired
shot
from
his
countrymade pistol on the head of his
father, who died on spot. He and Riyasat
tried to catch Alam, then Noor Mohammad
and Deen Mohammad with intention to kill,
fired shot from their countrymade pistol but
he and Riyasat were escaped narrowly.
Accused
Noor
Mohammad,
Deen
Mohammad, Alam, sons of Bundu ran
away towards their house after fire shot. In
cross-examination,
he
stated
that
he
reached to police station at 8.30 PM by
tractor. Rafeeq, Shafeeq, Anwar and Abid
also accompanied him, they did not bring
any written report with them and told
incident to police so police came to the spot
along with him. Police made necessary
inquiry and told him to give written
complaint / report, accordingly, he gave
written report to police at the village after
being written by Mahaboob Alam on his
instruction at about 9.00 PM and the dead
body of his father was sealed by the police,
the same was kept on tractor trolley and he
was also sitting on the tractor. He stated
that altercation took place before the shop
of Bundu. He further stated that his father
received fire-shot in front of primary
school. He stated that the person who fired
was 7 step away from his father. He further
stated that Noor Mohammad and Deen
Mohammad fired from their roof, both of
them were on their roof and remained
there. Two fires were made from the roof
and his father was standing when the fire
was made.

10. P.W. 2 Faizan aged about 15
years,
alleged
eye-witness,
in
his
examination-in-chief stated that incident is
of about 10 months before at about 7.15
PM. He and his brother Riyasat went to
shop of Habib for purchasing, at that
moment,
Noor
Mohammad,
Deen
Mohammad
and
Alam
armed
with
countrymade pistol, came there, abusing
them and started altercation with him and
his elder brother Riyasat. He ran away to
his home and told about the altercation to
his father Aslam and brother Salamat.
Having heard the same, his father and
brother came to the shop and tried to
protect Riyasat, at that time, Alam fired
shot on the head of his father Aslam and he
died on spot. His brother Salamat and
Riyasat tried to catch Alam, then Noor
Mohammad and Deen Mohammad fired
shot with intention to kill Riyasat and
Salamat but they were escaped narrowly.
All the three accused run away to their
home. About 2 years before his father
Aslam purchased about 18 bigha land from
Hamid due to which Bundu and his sons
Noor Mohammad, Deen Mohammad and
Alam were on enemeical terms to his
father. In the cross-examination, he stated
that his father did not receive fire-shot at
the place where Riyasat was caught rather
he received fire-shot at Chauraha.

11. P.W.3 Rafeeq alleged eyewitness, in his examination-in-chief stated
that incident is of 10-11 months before, it
was Holi festival and time was about 7 PM
(evening). He was sitting with Aslam then
Faizan son of Aslam came and told that
Noor Mohammad, Deen Mohammad, Alam
are beating him and his brother. He and
Aslam went there along with Faizan, Aslam
was on front side and he was on back side.
They reached to the shop, Aslam tried to
protect his son from accused then all the
464 INDIAN LAW REPORTS ALLAHABAD SERIES
three accused persons started altercation
with Aslam and after that Alam fired shot
from his countrymade pistol on the head of
Aslam who died on spot. He did not
interfere and went to his house. Deen
Mohammad and Noor Mohammad fired
two shots on Aslam but did not fire on
Salamat
and
Riyasat.
In
his
crossexamination, he stated that when he
reached at the place of occurrence, Aslam
was dead and Noor Mohammad, Deen
Mohammad, Alam were not present at that
time. He further stated that he did not go to
the house of Aslam on that day. He stated
that when fire shot took place, he was
present in his house. He further stated that
he did not see anybody who fired shot on
Aslam.

12.

P.W.4
Dr.
R.S.
Ravidas,
Community
Health
Centre,
Laharpur,
District Sitapur conducted the postmortem
of the dead body of Aslam on 20.3.2011 at
2.00 PM. He has proved the postmortem
report as Ext. Ka 9 and has stated that
following injuries were found on the body
of the deceased:

1. Fire arm wound of entry 2cm
x 2cm. Cavity deep on middle forehead
upto root of the nose. Blackening present
in some extant. On dissection one
metallic piece recovered from the right
side of occipital region of brain and
handed over to police. Fracture of nasal
bone and forehead bone, fracture of
right occipital bone, brain membrane
lacerated

13. P.W.-5, S.I. Veer Singh in his
examination-in-chief
stated
that
on
19.3.2011 he was posted on the post of
Sub-Inspector at Police Station- Mandawar.
He prepared the Panchayatnama of the
dead body of deceased Aslam and handed
over
the
deadbody
after
necessary
formalities for postmortem, the other
documents relating to panchayatnama were
prepared. Panchayatnama (Ex-Ka-3), letter
to R.I. (Ka-4), Chalan Lash (Ka-6), Photo
Lash (Ka-7), letter to C.M.O. (Ka-5) were
prepared by him on the spot. Ex-Ka-9 is
memo of recovery of plain earth and
stained earth was prepared by him.

14. PW.-6, Constable Jaiveer Singh in
his examination-in-chief stated that on
19.3.2011, he was posted at Police Station-
Mandawar on the same post and place. On
the information of murder of deceased
Aslam he reached along with force to place
of incident situated in village- Khirani.
After
completion
of
proceeding
of
Panchayatnama, he received the dead body
of Aslam in a sealed position at 22:00
hours
from
homeguard
Ashraf
and
constable-Randhir Singh and kept the dead
body in the morchary of district hospital,
after postmortem, dead body was handed
over to family members. In the crossexamination, he stated that dead body was
given to him on 19.3.2011 at 8:00 P.M. He
carried dead body from village-Khirani
through tempo to hospital and 30-45
minute was taken in covering the distance
from Village-Khirani to hospital.

15.

P.W.-7,
Constable
Clerk,
Narendra Sharma in his examination-inchief stated that on 22.3.2011, he was
posted as constable clerk at Police Station-
Mandawar. He proved chik F.I.R. as well
as Ex-Ka-12 and Ex-Ka-13. In the crossexamination, he stated that original G.D. is
not on record nor he brought the same with
him on that day.

16. P.W.-8, H.C.P. Prem Singh has
stated in his examination-in-chief that on
22.3.2011, he was posted as H.C.P. at
6 All. Alam Vs. State of U.P.
465
Police Station- Mandawar. He received
investigation of Case Crime No.53 of 2011
(Alam Vs. State) and Case Crime No.54 of
2011 (Noor Mohammad Vs State) from
police station office. Necessary entry were
made in the case dairy. Statement of
witness, S.I., Sheeshpal Singh, Constable
Tejpal Singh and Constable Sukhpal Singh
were recorded in the case diary on
23.3.2011. After that on the pointing out of
S.I. Shamim Haider inspected the place of
incident and prepared the spot map under
Section 25 of Arms Act which are Ex-Ka14 and Ex-Ka-15, the charge-sheet was also
submitted by him under Section 25 of Arms
Act, which are Ex-Ka-16 and Ex-Ka-17.

17. P.W.-9, S.I., Sheeshpal Singh, has
stated in his examination-in-chief that on
22.3.2011, he was posted as Sub-Inspector
at Police Station- Mandawar. He arrested
the accused-Noor Mohammad and Alam on
22.3.2011 at 7:45 A.M. On the pointing out
of Noor Mohammad and Alam, a country
made pistol as well as live and empty
cartridges were recovered at 10:45 A.M. on
22.3.2011. The memo was prepared by I.O.
in his presence and the same is Ex-Ka-18
which is signed by him also. In the crossexamination, he reiterated the same.

18. P.W.-10, Head Constable, Mahak
Singh in his examination-in-chief stated
that on 19.3.2011, he was posted on the
post of Head Moharir at Police Station-
Mandawar. On that day at 8:30 P.M., on
the basis of report of Salamat Chik
No.30/11, Case Crime No.52/11, under
Sections 323/ 302/ 307/ 34 I.P.C. was
registered
by
him
against
Noor
Mohammad, Deen Mohammad and Alam.
The same is Ex-ka-19. He mentioned about
the incident on same day in G.D. through
report no.39, time 8.30 PM. He brought the
original G.D. with him on that day which is
in his hand writing. He filed the correct and
attested photo copy of the same, which is
Ex-Ka-20. In the cross-examination, he
stated that he sent the special report of the
case through Constable, Tarachand but in
G.D. time of Rawangi of Tarachand is not
recorded. He sent the Tarachand on the oral
instruction of station officer without
recording his rawangi in the G.D. In Report
No.39, there is no mention of sending
special report. He further stated that there is
no copy of special report on record. He
further stated that he prepared seven copies
of special report but nothing was kept at the
police station.

19. P.W.-11, Station Officer, Sunil
Sharma in his examination-in-chief stated
that on 19.3.2011, he was posted as station
officer at Police Station- Mandawar. He
was investigating officer of Case Crime
No.52/11, under Section-323, 302, 307,34
I.P.C. which was registered in his presence.
He reached to place of incident along with
force, statement of first informant Salamat
was recorded in case diary and on the
pointing out of first informant inspected
place of incident and prepared site plan
(Ex-Ka-21). Two empty cartridges of 12
bore were recovered from the roof of the
accused and sealed in white clothes. The
memo was prepared, which is Ex-Ka-22,
memo was copied in case diary. On
20.3.2011 statement of Mahak Singh scribe
of first information report was recorded. On
22.3.2011 accused Noor Mohammad and
Alam were arrested and their statements
were recorded, at their instance country
made pistol and cartridges were recovered,
memo was accordingly prepared which is
Ex-ka-18 statement of witnesses Riyasat,
Faizan and Rafeeq were recorded.

20. from 3.4.2011 to 6.6.2011, he
was posted at police station- Mandawar. He
466 INDIAN LAW REPORTS ALLAHABAD SERIES
was handed over investigation of Case
Crime No.52/11, under Sections 302, 307,
323, 34 I.P.C. of witnesses which was
being investigated by earlier investigating
officer.
He
started
investigation
on
5.4.2011
statement
of
witnesses
of
recovery,
postmortem,
panchayatnama
were recorded on 15.4.2011, charge-sheet
no.53/11 was submitted in Court which is
Ex-ka-23.

21. The learned Sessions Judge,
Bijnor after hearing the parties and perusal
of the record, acquitted the accused-Noor
Mohammad, Deen Mohammad and Alam
under Section 307/34 IPC as well as
acquitted accused Noor Mohammad and
Alam under Section 25 of the Arms Act but
convicted accused Noor Mohammad, Deen
Mohammad and Alam under Section
302/34, 323/34 IPC, hence this appeal.

22. Heard Mr. Mukhtar Alam & Mr.
Saquib Mukhtar, learned counsel for the
appellants, Mr. A.N. Mulla, learned A.G.A.
for the State and perused the record.

23. Learned counsel for the appellant
submitted
that
following
points
for
determination are involved in the present
appeal:-

1. Whether the occurrence was
occurred in presence of alleged eyewitnesses i.e. P.W.1, P.W.2 & P.W.3 and
there evidence is reliable?

2. Whether prosecution has not
produced the best evidence to prove its
case and deliberately withheld the
material witnesses and evidence without
any justification?

3. Whether the postmortem
report does not support the prosecution
case and as per autopsy, single fire-arm
has been used for the commission of an
offence and the shot was fired at a close
range.

4. Whether the FIR is antetimed and absolutely there was no
proper and fair investigation and the
investigation of the case is defective.

5. Whether trial court has
completely misread the evidence and
passed the impugned judgment and
order without appreciating the evidence
available
on
record
in
its
right
perspective
and
the
same
is
not
sustainable in the eyes of law?

24. Learned counsel for the appellants
on the points for determination no.1
submitted as follows:-

P.W.-1,
P.W.-2
and
P.W.-3
alleged
eye
witnesses
are
unreliable
witnesses as all the three were not present
nor they have seen the incident.

The
relevant
portion
of
examination-in-chief of P.W.-1 is as
follows:-

दिन ांक 19.3.2011 को समय किीब
श म के सि स त बिे मेिे छोटे भ ई
रिय सत ि फैि न हबीब की िुक न पि
स म न लेने गये थे। तभी नूि मोहम्मि, िीन
मोहम्मि ि आलम अपने ह थोां में तमांिे दलये
हुये ग ली िेते हुये आये औि रिय सत को
पकड़कि म िपीट किने लगे तभी फैि न िो
मेि छोट भ ई है िुक न से भ गकि आय
औि घटन के ब िे में मुझे ि मेिे दपत
असलम को बत य मै तथ मेिे अब्ब
असलम, हबीब की िुक न पि पहुांिे औि
रिय सत को बि ने लगे तभी आलम ने अपने
6 All. Alam Vs. State of U.P.
467
ह थ में दलये तमांिे से मेिे अब्ब के म थे पि
गोली म ि िी, दिससे उनकी मौके पि मृत्यु
हो गयी थी। मैने ि मेिे छोटे भ ई रिय सत ने
आलम को पकड़न ि ह । तभी नूि मोहम्मि
ि िीन मोहम्मि ने ि न से म िने की दनयत
से अपने ह थोां में दलये तमांिे से हम िे उपि
फ यि दकये गये दिससे हम ब ल ब ल बि
गये। मैं अपने दपत असलम की ल श को
मौके पि छोड़कि थ ने आये औि महमूि
आलम से रिपोटम दलखकि थ ने पि िी िो
मैने बोल थ िही महमूि आलम ने दलख थ
मैने सुनकि तहिीि पि अपन अांगूठ लग य
थ । पत्र िली पि तहिीि क गि सां० 11/2
ि क्तखल है दिस पि एक्ज क-1 ड ल गय ।
मुलदिम न नूि मोहम्मि, िीन मोहम्मि ि
आलम पुत्रगण बुन्िू गोली म िकि ि फ यि
किके अपने घि की ओि भ ग गये थे।

25. The relevant portion of crossexamination of P.W.-1 is as follows:-

हबीब की िुक न उत्ति स मनी है।
औि उसके स मने पूिब पदिम ि स्त है।
पदिम को हम िी तिफ को ि स्त ि त है
औि पूिब को ग ांि मे ि त है। िब मेिे
ि दलि को गोली लगी तो उस समय िह
प्र ईमिी प ठश ल के स मने थे। प्र ईमिी
प ठश ल के उत्ति में आट िक्की बुन्िू है।
यह प्र ईमिी प ठश ल इस पूिब पदिम ि ले
ि स्ते के उत्ति में है। प ठश ल की ब उण्डिी
नही है खुल है। प ठश ल की पूिब पदिम
िौड ई किीब 60 फीट है। प ठश ल क िो
पदिम ि ल कोन है उसके प स गोली लगी
थी औि िदिण से िल ई गई थी। गोली
िल ने ि ल किीब 7 किम मेिे ि दलि से िूि
थ । प ठश ल के स मने ि स्त किीब 20-22
दफट िौड़ है।

नूि मोहम्मि ि िीन मोहम्मि ने फ यि
अपने मक न की छत पि से दकये थे ये िोनो
लोग अपने मक न की छत पि थे औि िहीां
िहे। छत पि से िो फ यि हुये थे िब फ यि
हुये थे मेिे दपत उस समय खडे थे। बुन्िू के
मक न दिस की छत पि से फ यि होन बत
िह हूँ ि स्ते के िदिण मे है औि उससे पदिम
में ि दशि की िुक न है। ि दशि की िुक न से
उत्ति मे मै 5 पहिे िूि थ । इनकी छत 12
दफट ऊूँिी है।

26. From the perusal of entire
statement (Chief and cross) of P.W.-1,
Salamat alleged eye witness, as well as son
of deceased, it is established that P.W.-1 is
changing his stand with respect to place of
incident. In his examination-in-chief, he
stated that incident has taken place before
shop of Habib, where all the three accused
were present and fired but in cross
examination he stated that incident has
taken place before primary school and
Noor Mohammad and Deen Mohammad
fired from the roof of their house, who
remained present on their roof. These are
material contradiction in the statement of
P.W.-1 and has not been explained by
prosecution, as such, evidence of P.W.-1
cannot be relied upon.

27. So far as P.W.-2, Faizan is
concerned, he is son of deceased and minor
at the time of incident, his statement is also
not consistent. In the cross-examination, he
stated that hundred people were assembled
at the place of incident, the place where
Riyasat was caught hold his father, had not
received fire-shot, rather at Chauraha his
father received fire shot, the relevant
portion of cross-examination of P.W.-2 is
as follows:-

मुझे अपने दपत ि भ ई को
बुल कि ल ने में पन्द्रह बीस दमनट लगी
होगी। उस समय भी रिय सत को मुलदिम न
468 INDIAN LAW REPORTS ALLAHABAD SERIES
म िपीट कि िहे थे। सैकडोां आिमी िह ां
इकट्ठ हो गये थे। घटन स्थल पि िे सब
आिमी रिय सत को ि िोां ओि हो िहे थे। उन
सैकडोां आिदमयोां मे से मै दकसी क न म
नही बत सकत । मुझे दिश ओ क ज्ञ न नही
है िब हम लौटकि आये तो रिय सत हबीब
की िुक न से 5 पहटे हम िे घि की तिफ को
थ । िह ां रिय सत को पकड़ िख थ । उससे
बुन्िू क घि उत्ति की तिफ थ । िह ां
रिय सत को पकड़ िख थ । िह ां मेिे दपत
को गोली नही लगी थी। बक्ति िौि हे पि
लगी थी।

28. From the perusal of examinationin-chief and cross-examination of P.W.-2
who was minor at the time of incident, it is
established that statement of P.W.2 is not
consistent with respect to place of incident
as well as evidence of P.W.2 is not
corroborated by evidence of P.W.1, thus,
evidence of P.W.2 is also not reliable and
trustworthy.

29. P.W.-3, Rafeeq alleged eyewitness as well as independent witness in
his cross-examination clearly stated that he
was at his home when firing took place. He
further stated that he had not seen anybody
who fired shot to Aslam, the relevant
portion of cross-examination of P.W.-3,
Rafeeq is as follows:-

िब मै पहुि तो असलम को मैने
मिी हुई ह लत में िेख सैकडो आिमी इकट्ठ
थे सब एक िूसिे से पूछ िहे थे दक असलम
कैसे मि गय औि दकसने गोली म ि िी उस
समय नूि मौहम्मि, िीन मौहम्मि, ि आलम
उस समय घटन स्थल पि नही थे िब मै िह ां
घटन स्थल पि पहुांि उस दिन मै सल मत
के घि भी नही गय थ िब गोली िली मै
अपने घि पि थ । सल मत अपने ब प के
प स होग ।

सल मत क घि पूिब में हिीि की
िुक न से है। हबीब की िुक न से पूिम को
ि स्त ि िह है। हबीब की िुक न के प स
कोई िौि ह नही है। हिीब की िुक न के
पूिब मे ि स्ते के ब ि इस्म ईल क घि है।
इसके ब ि पांि यत घि है। प ठश ल हिीब
की िुक न से 50-60 किम की िूिी पि है िो
पूिब में है।

यह ब त सही है दक असलम को
गोली म िते हुऐ मैने दकसी को नही िेख ।

यह कहन गलत है दक प ठश ल
हिीब की िुक न से 100 गि से अदिक
फ सले पि हो।

30. From the perusal of statement of
P.W.-3, it is fully established that P.W.-3 is
not eye-witness of the incident and his
evidence
is
also
not
reliable
and
trustworthy.

31. On the point for determination
no.2, learned counsel for the appellants
contended
that
prosecution
has
not
produced Riyasat who was alleged to be
throughout present on spot and even beaten
by accused but prosecution has failed to
produce
Riyasat
which
makes
the
prosecution
case
doubtful.
Constable,
Tarachand, special report messenger was
also not produced by prosecution and copy
of special report was also not on record of
the case and there is no mention of sending
special report of the case in report no. 39
which demonstrate that special report of the
case has not been sent. Accordingly, nonproduction of Tarachand by prosecution
makes the prosecution case doubtful.

32. On the point for determination
no.3, learned counsel for the appellants
contended that according to postmortem
6 All. Alam Vs. State of U.P.
469
report, blackening was present in the
injuries but P.W.1 in his cross-examination
stated that person who fired shot was 7
steps away from his deceased father Aslam.
P.W.4 Dr. R.S. Rabidas in his crossexamination stated that deceased received
fire shot from the distance of some inch.

33. On the point of blackening and
charring, following judgment of the Apex
Court will be relevant. Paragraph no. 12 of
2007(57) ACC 1099, Raj Kumar Prasad
Tamarkar vs. State of Bihar and Others
is as follows:

12. The autopsy report shows
that 'a blackening and charring' existed so
far as Injury No. (i) is concerned. The
blackening and charring keeping in view
the nature of the firearm, which is said to
have been used clearly go to show that a
shot was fired from a short distance.
Blackening or charring is possible when a
shot is fired from a distance of about 2 feet
to 3 feet. It, therefore, cannot be a case
where the death might have been caused
by somebody by firing a shot at the
deceased from a distance of more than 6
feet. The place of injury is also important.
The lacerated wound was found over
grabella (middle of forehead). It goes a
long way to show that the same must have
been done by a person who wanted to kill
the deceased from a short distance. There
was, thus, a remote possibility of causation
of such type of injury by any other person,
who was not in the terrace. Once the
prosecution has been able to show that at
the relevant time, the room and terrace
were in exclusive occupation of the couple,
the burden of proof lay upon the
respondent
to
show
under
what
circumstances death was caused to his
wife. The onus was on him. He failed to
discharge the same.

34. Now, at this stage, we shall
proceed to examine whether the medical
evidence
renders
the
ocular
account
completely unacceptable or improbable. In
this regard, the submission of learned
counsel for the appellants is that the ocular
account is not acceptable because the
medical evidence has ruled out possibility
of the shot being fired from seven steps
away from the deceased as per PW-1 in his
cross-examination but the same is ruled out
as per PW-4-Dr. R.S. Rabidas in his crossexamination, who stated that deceased
received fire shot from the distance of some
inches. There is also contradictions in the
examination-in-chief
and
in
cross
examination of witnesses of fact i.e. PW-2
and PW-3
vis-a-vis
in
the
medical
evidence.

35. At this stage, we may notice few
decisions of Hon'ble the Apex Court on the
issue as to when a conflict between medical
evidence and ocular account would render
the ocular account untrustworthy and
unreliable. In Thaman Kumar v. State of
Union Territory of Chandigarh, (2003) 6
SCC 380, in paragraph 16, it was observed
as follows:

"16. The conflict between oral
testimony and medical evidence can be
of varied dimensions and shapes. There
may be a case where there is total
absence of injuries which are normally
caused by a particular weapon. There is
another category where though the
injuries found on the victim are of the
type which are possible by the weapon of
assault, but the size and dimension of the
injuries do not exactly tally with the size
and dimension of the weapon. The third
category can be where the injuries found
on the victim are such which are
normally caused by the weapon of
470 INDIAN LAW REPORTS ALLAHABAD SERIES
assault but they are not found on that
portion of the body where they are
deposed to have been caused by the eye
witnesses. The same kind of inference
cannot be drawn in the three categories
of apparent conflict in oral and medical
evidence enumerated above. In the first
category, it may legitimately be inferred
that the oral evidence regarding assault
having been made from a particular
weapon is not truthful. However, in the
second and third category no such
inference can straightaway be drawn.
The manner and method of assault, the
position of the victim, the resistance
offered by him, the opportunity available
to the witnesses to see the occurrence like
their distance, presence of light and
many other similar factors will have to
be taken into consideration in judging
the reliability of ocular testimony."

36. Hon'ble the Apex Court in
Punjab Singh v. State of Haryana, 1984
Supp SCC 233 and Anil Rai v. State of
Bihar, (2001) 7 SCC 318 has considered in
detail that (1) if direct evidence is
satisfactory and reliable, the same cannot
be
rejected
on
hypothetical
medical
evidence, and (2) if medical evidence when
properly
read
shows
two
alternative
possibilities but not any inconsistency, the
one consistent with the reliable and
satisfactory statements of the eye witness
has to be accepted. The similar view has
also been taken by Hon'ble the Apex Court
in Abdul Sayeed v. State of Madhya
Pradesh, (2010) 10 SCC 259. No doubt
the legal principle, which has been
pronounced by Hon'ble the Apex Court, is
that ocular evidence has greater evidentiary
value vis-a-vis medical evidence. In the
present matter, we also find that there is
inconsistency of the prosecution witnesses
of fact and after close scrutiny of the
medical evidence, we find that ocular
evidence may be discarded.

37. To appreciate the submission urged
by the learned counsel for the appellants that
P.W.1, P.W.2 and P.W.3 are not credible and
reliable, we have examined their testimony
threadbare. We find that these three witnesses
claim themselves to be the eye witness of the
occurrence but their description of the
manner of occurrence and the contradiction
regarding the place of occurrence, the injury
sustained by the deceased from a gun shot
fired from approximately seven steps and
considering the statement of PW-4- Dr. R.S.
Rabidas that the gun shot fired from very
close
range
(few
inches)
are
such
circumstances which remain unexplained.
Thus, the ocular testimony is wholly
inconsistent with the circumstantial evidence
as well as the medical evidence. The case in
hand is based upon direct evidence.
Therefore, in order to award or uphold the
conviction of an accused in a case based upon
direct evidence, the Court has of necessity to
hold that the prosecution story is probable.
The prosecution witnesses of fact are credible
and reliable and therefore their testimony is
worthy of credit. In a case of direct evidence
motive cannot be said to be of much value.
Therefore, in such situation, it is imperative
to the Court to go into the facts and
circumstances of the case and find out as to
what was the cause behind the occurrence,
the motive behind the occurrence and
whether it has any relation with the crime or
not. On a careful scrutiny of the alleged
motive assigned to the accused-appellants for
the commission of crime, the Court finds, as
enumerated above, that the same is too far
stretched.

38. On the point of determination
no.4, learned counsel for the appellants
submitted that FIR is ante-timed and
6 All. Alam Vs. State of U.P.
471
investigation of the case is defective.
Learned counsel for the appellants further
submitted that special report of the case has
not been sent according to law, the reliance
has been placed upon paragraph-101 of the
police regulation which is as follows:

"101. Special Report cases.-
Whenever the occurrence of an offence
of any of the following kinds is reported
(1)
dacoity,
(2)
robbery
except
unimportant cases such as snatching
earrings, (3) torture by police, (4) escape
from police custody, (5) forging of
currency notes (6) manufacture of
counterfeit coin, (7) serious defalcations
of public money including theft of notes
or hundis from letters, (8) important
cases of murder, rioting, burglary and
theft, breaches of the peace between
different
classes,
communities
or
political groups and other cases of
special interest, copies of the report will
be sent immediately in red envelopes to
the
Superintendent,
the
District
Magistrate,
the
Sub
Divisional
Magistrate and the Circle Inspector by
post or hand whichever may be the
quicker method of conveyance. The
telephone or telegraph when available,
and the department telegraphic code,
copies of which have been supplied to all
police stations near telegraph offices
should
also
be used
to give
the
Superintendent early news of such
offences."

39. The counsel further placed
cross-examination
of
PW.10
Head
Constable Mahak Singh in order to
demonstrate that procedure for sending
special report of the case has not been
followed at all, the relevant portion of
cross-examination of P.W.10 Mahak
Singh is as follows: