# Ali Ahmad v. State Of U.P

- **Citation:** (2016) 8 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-26
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-ahmad-v-state-of-u-p-44355
- **Pages:** 11

## Text

8 All. Ali Ahmad Vs State Of U.P.
569
(2016) 8 ILRA 569
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 6068 Of 2006
&
Connected With Other Cases

Ali Ahmad ...Appellant
Versus
State Of U.P ...Respondent

Counsel for Appellant:
Dilip Kumar, Bakhteyar Yusuf,Rajiv Gupta, S.V.Singh

Counsel for Respondent:
Govt. Advocate, A.K. Awasthi, Manish Tiwari, Manish Tiwary

Legislation referred to Indian Penal Code, 1860 - Ss. 302, 302/34, 504; Arms Act, 1959 - S. 25(1B)(b);
Code of Criminal Procedure, 1973 - S. 313

FACTS:
On 15.02.2009 at about 12.00 noon, at the Government Slaughter House, Police Station Kotwali Nagar,
District Aligarh, the appellant Raeesh arrived armed with a knife, accompanied by his brother Haji Munna
(appellant) and father Haji Rasheed (co-accused, since deceased). They entered the slaughter house and
demanded delivery of slaughtered goods already purchased by the first informant's side. On being refused,
Haji Rasheed and Haji Munna caught hold of the deceased Irshad (brother of the first informant), and Raeesh
inflicted a knife blow on his chest with intent to kill him. Irshad was taken to Malkhan Singh Government
Hospital, Aligarh, where he was declared dead. Raeesh was apprehended on the spot along with the knife. A
first information report was lodged by the first informant Bahar Ahmad @ Chhotey (P.W. 1) at 1.00 P.M. on
the same day. After investigation, charge-sheets were filed against the appellants.
The Sessions Court, Aligarh, by judgment and order dated 14.12.2010, convicted appellant Raeesh under
Section 302 I.P.C. and Section 25(1B)(b) of the Arms Act and convicted appellant Haji Munna under Section
302/34 I.P.C. and sentenced both to life imprisonment. Both the appellants challenged their conviction before
this Court.

ISSUES:
(i) Whether the prosecution witnesses, being close relatives of the deceased, are to be treated as interested
witnesses and their testimony discarded on that ground alone.
(ii) Whether the first information report was ante-timed.
(iii) Whether non-collection of blood-stained earth from the spot and non-examination of fingerprints on the
recovered knife vitiated the prosecution case.
(iv) Whether the testimony of eye-witnesses P.W. 1 and P.W. 2 was reliable, consistent, and sufficient to
sustain conviction.
570 INDIAN LAW REPORTS ALLAHABAD SERIES

(v) Whether common intention under Section 34 I.P.C. was established against appellant Haji Munna.

HELD:
(i) Testimony of relative/interested witnesses - Mere relationship of witnesses with the deceased is
not by itself a ground to discard their testimony. In many cases, only relatives are available to depose,
particularly having regard to the prevailing trends in our society where persons other than relations are not
ready to depose before the court. Such testimony, however, must be subjected to scrupulous and careful
scrutiny and if, on such scrutiny, it inspires confidence, it cannot be rejected.
 Relied on: Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)
(ii) Prompt lodging of the FIR - The place of occurrence was the Government Slaughter House, situated
at a distance of 2 kilometres from the police station. The occurrence took place at about 12.00 noon. The first
information report was lodged at 1.00 P.M. on the same day. This constitutes a prompt report. The timeline
stated in the FIR stands corroborated by: the inquest report commencing at 2.30 P.M. and concluding at 4.30
P.M.; despatch of the dead body for post-mortem after 4.30 P.M.; and its receipt at the mortuary at 5.20 P.M.
The contention that the FIR was ante-timed is, therefore, unsustainable.
(iii) Non-collection of blood from spot - The occurrence took place in a government slaughter house
where blood of slaughtered animals had spread all over the premises. It was, therefore, virtually impossible to
segregate and collect blood attributable exclusively to the deceased. Non-collection of blood-stained earth
under such peculiar facts creates no doubt about the place of occurrence. Footwear left behind at the scene
by reason of the stampede that followed were, in fact, seized under a recovery memo by the Investigating
Officer.
(iv) Reliability of ocular testimony - The two eye-witnesses, P.W. 1 (first informant and brother of
deceased) and P.W. 2 (uncle of deceased), were naturally present at the slaughter house supervising
slaughtering work. Their presence at the spot is wholly consistent with the nature of their work and the time
of day. Their testimonies are consistent inter se and corroborate the contents of the first information report in
all material particulars. The specific description that, after the knife blow, the deceased did not fall
immediately but was caught by the witnesses while in the act of falling, is a detail that only persons actually
present on the spot could furnish. Cross-examination did not elicit any material contradiction. The defence's
own suggestion that the appellant Raeesh was caught by the first informant after a short chase amounts to
an implicit admission of the witnesses' presence at the spot.
 Medical evidence of Dr. S.K. Sharma (P.W. 3) corroborates the mode of assault - a single ante-mortem
stab wound, 4 cm × 2 cm × chest cavity deep, on the front of the chest on the left side - sufficient in the
ordinary course of nature to cause death. The doctor opined that death could have occurred between 12.00
noon and 12.15 P.M., which is consistent with the prosecution case and was not challenged in crossexamination.
(v) Common intention under Section 34 I.P.C. - The conjoint act of Haji Rasheed and appellant Haji
Munna in catching hold of both hands of the deceased Irshad - thereby immobilising him - while the
appellant Raeesh inflicted the knife blow establishes that all the accused persons were acting in furtherance of
a common intention to commit the offence. The manner and participation of the accused persons in the
incident leads to an inescapable inference of shared common intention.

RESULT:
Both the appeals lack merit and are accordingly dismissed. The judgment and order of conviction dated
14.12.2010 passed by the Sessions Judge, Aligarh, in Sessions Trial No. 395 of 2009 (under Sections 302 and
302/34 I.P.C.) and Sessions Trial No. 396 of 2009 (under Section 25(1B)(b) of the Arms Act) is upheld and
confirmed. The bail of appellant Haji Munna stands cancelled and his sureties are discharged. He is directed to
be taken into custody forthwith to serve out the remaining period of the sentence imposed upon him by the
trial court.

Cases Referred:
8 All. Ali Ahmad Vs State Of U.P.
571
Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)

(Delivered by Honble Arvind Kumar Mishra-1, J.)

1. The aforesaid criminal appeals have been preferred by the above mentioned appellants
against the judgment and order of conviction dated 26.9.2006 passed by the Additional Sessions
Judge, Court No. 2 , Etawah in S.T. No. 20 of 2000-State of U.P. Vs. Ali Ahmad and others under
section 302/34 I.P.C. arising out of case crime no. 337 of 1999, Police Station Kotwali, district
Etawah whereby the appellants have been sentenced to life imprisonment under section 302 read
with section 34 of I.P.C. coupled with fine of Rs. 5000/- each with default stipulation of one year
additional R.I. to the concerned convict.

2. We have heard at length respective submissions of learned counsel for the appellants
Shri S.V. Singh and learned A.G.As. Shri J.K. Upadhyaya as well as Ms. Manju Thakur and
learned counsel for the complainant Ashwani Kumar Awasthi and perused the record.

3. The foundation of prosecution case is rooted in the first information report lodged by
informant Mohd. Arif son of Israel resident of Chaukhar Kua, New Market, Police Station Kotwali
district Etawah, wherein allegations of murder have been made against the aforesaid three
appellants-Ali Ahmad, Zameel and Abdul Sattar to the extent that they killed his father by firing on
him on 24.6.1999 at 8.30 A.M. in front of Nafees Hazi's shop- National Road Lines Transport. In
order to commit the offence, the appellants laid-in ambush behind two trucks in company with one
more person, suddenly appeared on the scene and got scooter of informant's father stopped, then
Abdul Sattar kicked his scooter and exhorted to kill him; whereupon Ali Ahmad and Zameel by
waving country made pistol in their hands caught informant's father and (the assailants) pumped
pellets on him by their weapons due to which the informant's father fell down. Informant's uncle
Afzaal and his friend Chand who were also following his father, challenged the assailants,
whereupon, the assailants also fired in the air and secured their escape. It is gathered from report
that bone of contention (behind this murder) was construction of some shops in graveyard situated
near overhead water tank adjoining bye pass road. One Abdul Sattar, resident of Katara Sahab
Khan, was earlier Mutwalli ( Manager) of this graveyard and after him, Master Bashiruddin was
made Mutawalli of this graveyard. Bashiruddin, relative of first informant, used to come to the Saw
mill of the applicant. In this graveyard, Ali Mohd. son of Hussain Khan was constructing shop. He
was being assisted by Zameel son of Bashirrddin and Abdul Sattar son of Alauddin. Construction
of the shops in the graveyard came into knowledge of City Magistrate Etawah, who issued stay
order on these shops. The appellants became apprehensive of this stay order and were under
impression that it was obtained on account of persuasion made by the informant's father with
Bashiruddin, who managed issuance of such stay order. Yesterday, on 23.6.1999 at about 10.30
A.M. Ali Ahmad and his aforesaid two friends came to the saw mill of the informant and asked
informant's father that he got issued stay order against construction of shops, thus depriving them
of their livelihood, now he (deceased-Israel) will have to bear the consequences for the same and
they went away from there (saw mill ). Today, i.e. on 24.6.1999, when the informant's father Mohd.
Israel was going to his saw mill from his house on scooter, he was being followed by informant's
572 INDIAN LAW REPORTS ALLAHABAD SERIES

uncle Afzaal and his friend Chand son of Banne Khan on motor cycle when the aforesaid offence
of murder was committed at 8.30 A.M.

4. It has further been alleged that at the time of incident, the first informant had gone to the
saw mill of Ramjan for arranging labourers, which place is near the place of occurrence. The
informant heard sound of firing and rushed to the spot when he saw his father lying on road seeped
with blood. Informant's father while groaning told informant's uncle and his friend (Chand) about
the incident. Thereafter informant's father was taken to hospital by Jeep where his father was
declared dead. Blood oozing out from body of informant's father stained clothes of first informant.
The dead body was kept in the hospital. The appellants committed offence in broad day light and
they openly fired in the air due to which peace of the area was disturbed, panic prevailed and
stampede followed giving way to likelihood of breach of peace. It was prayed that report be lodged
and action be taken. This written report is Ext. Ka. 1.

5. The entry of contents of this first information report was taken in check FIR at 9.35
A.M. at Police Station Kotwali district Etawah at case crime no. 337 of 1999 under Section 302
I.P.C. Check FIR is Ext. Ka. 3 on record. On the basis of aforesaid entry made in the FIR, the case
was registered against appellants at Rapat No. 22 in the G.D. on the same day and time which is
Ext. Ka. 4 on record. Thereafter, the investigation followed and investigation was taken over by
Harshvardhan P.W. 5 who conducted part of the investigation and prepared site plan of place of
occurrence Exhibit Ka-5 and thereafter the investigation was handed over to S.S.I. Vikramjeet
Singh P.W. 6 who also took various steps in completing the investigation. Certain relevant papers
were prepared during the course of investigation a reference of these papers at this stage would be
appropriate.

6. After investigation commenced, the Investigating officer got prepared the inquest report
of deceased Modh. Israel and it was completed at 11.00 A.M. on 24.6.1994 which is Ext. Ka. 8 on
record. In the opinion of inquest witnesses, it was suggested that the dead body of deceased be sent
for postmortem examination for ascertaining real cause of death. The dead body was sent for
postmortem examination. Relevant papers were also prepared, these papers are :- Photo Nash Ext.
Ka. 9, Challan of dead body Ext. Ka. 10, letter to the Chief Medical Officer is Ext. Ka. 11 and letter
to R.I. Police Line Etawah is Ext. Ka. 12. Investigating Officer also prepared various memos
during the course of investigations viz. memo of simple and blood stained soil from the place of
occurrence is Ext. 6, memo of blood stained clothes of first informant dated 31.8.1999 is Ext. Ka. 2
. It is further reflected from record that medical examination on the body of deceased was
conducted at district Hospital Etawah on 24.6.1999 at 5 P.M. wherein following ante-mortem
injuries were found on the body of the deceased:

1. Gun shot wound injuries 1.5 cm x 2 cm Thoresic Cavity Deep right side of back
19 cm away from nipple. Blackenning and charring are present around wound in 3 cm area.
2. Gun shot wound of exit in front of chest left 3 cm below left nipple in 6.00
clock's position.
8 All. Ali Ahmad Vs State Of U.P.
573
3. Fire arm wound measuring 5 cm x 2 cm under the skull deep 5 cm above right
eye-brow lacerated. Blackening around wound is present in 1 cm area.

7. In the of opinion of doctor, the cause of death was due to shock and haemorrhage as a
result of ante mortem fire arm injuries. Postmortem examination report is Ext. Ka. 2-A on record.

8. During the course of investigation, various statements of witnesses were also recorded
and after completing investigation, two separate charge sheets were filed under section 302/34
I.P.C. against the appellants. The charge sheet against appellant Ali Ahmad and Zameel is Ext. Ka.
6 on record whereas the charge sheet against Abdul Sattar is Ka. 7 on record.

9. Thereafter, the case of the appellants was committed to the Session Court from where it
was made over for trial to the concerned court of Additional Sessions Judge, Court No. 2 Etawah
who after hearing the appellants, charged them under section 302/34 I.P.C. The charge was read
over and explained to the accused who squarely denied the charge and claimed for trial. Thereafter,
the prosecution was asked to adduce its testimony in support of aforesaid charge.

10. In turn, prosecution produced in all seven witnesses viz. Mohd. Arif is first informant
and son of deceased. He is said to have arrived on the spot soon after the incident and took his
father to the hospital. He has proved written report as Ext. Ka. 1. Dr. M.M. Arya P.W. 2 has
conducted postmortem examination on the body of the deceased and has proved the same as Ext.
Ka. 2-A . Mohd. Afzaal P.W. 3 is the brother of the deceased and uncle of first informant and star
eye witness of the prosecution. He has described about the incident. Head constable Sobaran Singh
is P.W. 4 and he has proved entries made in the check first information report and relevant G.D.
relating to the case are Ext. Ka. 3 and 4, respectively. Harshwardhan P.W. 5 is the first
investigating officer who has detailed about various steps taken during the course of investigation.
He prepared site plan and proved the same as Ext. Ka. 5. Besides, he also took steps for ensuring
the arrest of the accused. S.S.I. Vikramjeet Singh P.W.6, the second Investigating Officer of the
case took over the investigation of this case on 21.7.1999 and after completing formalities filed
charge sheets against aforesaid appellants Ext. Ka-6 and Ka-7, respectively. Constable Chiranji Lal
P.W. 7 has proved preparation of inquest report and other relevant papers and has stated that
inquest was prepared. by S.I. R.K. Pal, he was present at the time of preparation of the inquest
report, he has identified his hand writing on this report., which is Ext. Ka-8. Relevant papers by the
I.O. made for sending the dead body for postmortem examination are Ext. Ka-9, 10, 11 and 12.

11. Thereafter evidence for prosecution was closed and the statement of the appellants was
recorded under section 313 Cr.P.C. wherein they claimed to have been falsely implicated in this
case in consultation with Bashirruddin. The defence did not lead any evidence on its part. The trial
court after hearing both the sides, passed the impugned judgment and order of conviction dated
26.9.2006 in S.T. No. 20 of 2000-State of U.P. Vs. Ali Ahmad and others under section 302/34
I.P.C. arising out of case crime no. 337 of 1999, Police Station Kotwali, district Etawah and
imposed upon them aforesaid sentence.
574 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Consequently these appeals.

13. It has been vehemently claimed on behalf of the appellant by the learned counsel Shri
S.V. Singh that in fact none of the so called prosecution witnesses of fact has seen the occurrence.
There is no independent witness whose testimony could be relied on in this case. All the witnesses
of fact are either interested, partisan or close relatives of the deceased, so their testimony is wholly
unreliable. It is surprising that these witnesses are not witnesses in inquest report. It has come in the
statement of prosecution witnesses that when the injured was lying on the ground, he was taken to
hospital. On way to hospital he told about the incident to the prosecution witnesses, particularly to
first informant Mohd. Arif, and P.W. 3 Mohd. Afzaal that the accused persons caused injury to
him. As per post mortem report and testimony of doctor, it is worth consideration that when a
person who has been hit so badly on his chest, his lungs are ruptured then he would not be in a
position to spell even a single word, therefore, narration of the incident by the deceased when the
incident took place, to his son and brother is after thought and result of deliberation and
consultation which establishes fact that the story of assault caused by the appellants was tried to be
improved.

14. Learned counsel claimed that entire prosecution case does not inspire confidence. The
investigation is full of laches, testimony of witness is full of contradictions and no conviction can
be made on it and trial court overlooked these particular aspects and has erroneously recorded the
finding of conviction.

15. Per contra, learned A.G.A. and learned counsel for the complainant in reply to the
aforesaid arguments submitted that the testimony on record is true, worthy of credit, and is
inspiring confidence. P.W. 3 Mohd. Afzaal is natural witness of fact of occurrence and was present
on the spot, he is most natural witness of incident which was also witnessed by the first informant
P.W. 1 and he was told by his father as to who opened fire on him. In this regard, clothes of first
informant which bore blood stains oozing out from his father's body corroborates the presence of
first informant at the relevant point of time on the spot.

16. There is no material contradiction in the testimony of the prosecution witnesses of fact
P.W.1 and P.W.3. There is no laches in the investigation. The investigation is fair and upto the
mark. Lodging of first information report is also prompt. The incident occurred in broad day light
in the month of June at 8.30 A.M. and lastly it has been summed up that merely because the
witnesses are close relatives of the deceased that by itself would not render their testimony wholly
unreliable unless it is shown that these witnesses are highly inimical and biased to ensure
conviction of the appellants and nothing such has surfaced against aforesaid witnesses that they are
either biased or acting with malafidy intention to ensure conviction of the appellants. Prosecution
witnesses of fact being natural witnesses, their testimony is to be believed as the same is clinching
and inspiring confidence. Why these witnesses will spare the real culprits and falsely involve the
appellants has also not been brought before this Court by the appellants.
8 All. Ali Ahmad Vs State Of U.P.
575
17. The moot point involved for consideration in these appeals revolves around fact
whether the prosecution has been able to prove its case against the appellants, beyond any
reasonable doubt or not?

18. The very beginning of the incident has its seed, in the first information report which
imputes the very motive for commission of the offence by the appellants. Precisely, first
information report indicates that appellant-Ali Ahmad was constructing some shop in the graveyard
and he was being aided by other appellants Zameel and Abdul Sattar. The City Magistrate, Etawah,
passed some stay order on this construction which was interpreted by the appellants to be handy
work and out come of mischief of first informant's father who intrigued with Bashiruddin in getting
the stay order issued against such construction. The appellants being apprehensive of such
mischievous activities on the part of informant's father and Bashiruddin came to the saw mill of
first informant at 10.30 A.M. on 23.6.1999 and admonished informant's father that he got the
construction stopped, thus, deprived them of their livelihood and now he would have to face
consequences for his act. On the next following day on 24.6.1999 the first informant's father was
going to saw mill on scooter from his house, being followed by informant's uncle Afzaal and his
friend Chand on motor cycle at some distance, in the meanwhile, when the deceased reached
infront of Nafis Haji's National Road Lines Transport, then the appellant who laid in ambush
behind two trucks, appeared on the scene around 8.30 A.M., being accompanied by one unknown
person, got the scooter of informant's father stopped. Abdul Sattar gave kick blow to the scooter
and exhorted, Ali Ahmad, Zameel and one unknown person to kill him lest he should be saved
whereupon, Ali Ahmad and Zameel waived country made pistol pumped bullets on the informant'
father due to which he fell down on the ground. In the meanwhile, informant's uncle and friend of
informant's uncle, challenged them, whereupon, they opened fire in the air and ensured their escape
good.

19. In this case, eye witness account evidence of the incident has come forth from the uncle
of first informant who has been examined as P.W. 3. As per testimony of P.W.3 Mohd. Afzaal, it is
reflected from his cross examination Page 33 of the paper book, wherein, in the last paragraph of
his testimony, he has stated that after the fire shot, which hit the deceased, his nephew arrived on
the spot within a minute. Meaning thereby that the incident of shooting was not witnessed by P.W.
1 though he arrived in a short while on the spot and saw his father lying on the ground in pool of
blood. Therefore, the testimony of P.W. 3 under the circumstances may be relevant for
consideration of meritorial aspect of the incident. Although testimony of P.W.1, in so far as it
relates to other aspects viz; motive and ancillary issues, will be helpful for arriving at just
conclusion and the same will be discussed at relevant point of time.

20. It may also be observed that P.W. 3 in his examination in chief as noted on Paged 28 of
the paper book has stated that after the incident, his nephew Mohd. Arif had arrived on the spot. As
per description contained in the first information report, the incident has been narrated by Mohd.
Afzaal P.W. 3. He has stated in examination in chief that he owned a saw mill and his brotherdeceased Israel- also owned saw mill in front of Pani Ki Tanki at Bye-pass circular road. On
24.6.1999, he in company with his friend-Chand- were going to saw mill on his motor-cycle. It was
576 INDIAN LAW REPORTS ALLAHABAD SERIES

around 8.30 A.M. when he reached Nafees Hazi's National Road Lines Transport, he saw his brother Israel
driving scooter at some distance ahead of him. In the meanwhile Abdul Sattar who was lying in ambush
behind trucks appeared on the scene and gave kick blow to his scooter and exhorted "Goli Mar Do"
whereupon Ali Ahmad and Zameel fired on him. One more unknown person was also accompanying
them. This fire was shot by using country made pistol, which injured his brother. They challenged the
assailants, whereupon they made their escape good after firing shots in the air. Thereafter, his nephew
Mohd. Arif arrived on the spot, then this witness with the help of his nephew took injured Mohd. Israel in
a Jeep to the hospital and on way to hospital deceased Israel told his nephew Mohd. Arif that Zameel and
Ali Ahmad had fired on him after Abdul Sattar gave kick blow to his scooter after stopping it.

21. This witness P.W. 3 has also stated in his examination in chief that his brother remained alive
upto and till they reached Kazi Petrol Pump thereafter he died. On reaching hospital, doctor declared his
brother dead. He has been cross examined by the appellants on the point of occurrence. He has stated that
after the shot hit the deceased Israel, he was unable to stand up and at that point of time, this witness was
about 20-25 paces away from him. He has stated that at the relevant point of time, his brother was
proceeding a little ahead of him on scooter. He has further stated that investigating officer recorded his
statement the very same day on which the incident took place.

22. It has been specifically asked from this witness - P.W.3, as to what was identity of unknown
culprit whereupon he said that he can not recollect his memory about the same. He has been confronted
with specific question whether deceased Israel has been shot dead by Abdul Sattar, Ali Ahmad and
Zameel and whether any such statement was ever given by him to any investigating Officer, whereupon he
answered "Yes", he told about this to Darogaji. He has stated that Darogaji had prepared site plan on his
own. He has also identified the place of occurrence near Tarkol Road, where blood dropped on the ground.
This witness has further stated on interrogation regarding fact, as to what was the position (physical) of
deceased when he was hit by shot, whereupon he replied that at the relevant point of time, Israel was
prostrate with mouth down ward. This witness also demonstrated (by making gesture in trial court) that
one leg (of deceased) was entangled in scooter, whereas, the other was extended (astride).

23. This particular piece of testimony by itself is self explanatory of fact of presence of this
witness on the spot; thus he witnessed the incident. He has been asked question about distance from which
shot was fired whereupon the distance has been disclosed by this witness as 2-3 feet. He has also stated in
his testimony that after the shot hit the deceased, he was not rendered unconscious. The deceased was
taken care of by this witness, his nephew and the another person Chand. He has stated that his nephew had
just arrived on the spot within a minute (of the incident) some persons also arrived at the spot.

24. In the wake of aforesaid testimony it is obvious that the description of incident as narrated in
the examination-in-chief stands corroborated in his cross examination. There is nothing adverse or
anomalous in his testimony on point of occurrence and his presence on the spot. His testimony on the
whole can be rated to be worthy of credit, consistent and inspiring confidence.

25. We have been persuaded, by learned counsel for appellants, to act on assumption that this
witness is close relative of the deceased and he is in fact brother of the deceased, therefore, his testimony is
8 All. Ali Ahmad Vs State Of U.P.
577
testimony of interested and biased witness and should not be normally believed, but on the other hand, we
have specific reason not act upon such proposed hypothesis in view of the fact that merely because witness
is a relative of victim of an offence will not by itself throw away the prosecution case in the face of
consistent testimony of a witness of fact. No such piece of testimony or circumstance appears upon
scrutiny which may give rise to fact that PW-3 being relative of deceased-Israel- is interested in conviction
of the appellants. In this context legal dictum is settled that unless it is shown that the witness is directly
interested in having conviction secured his being relative of victim alone will not be suffice to render his
testimony wholly unreliable. In this way, relative who happens to be natural witness cannot altogether be
regarded as an interested witness. There is nothing on record which may point out that this witness was
having any grudge against the appellants or was malafide towards them. That way, he cannot be said to be
interested witness and he has no grudge or bias for seeking conviction of the appellant. Therefore, the
contention that the testimony of Mohd. Afzaal P.W. 3, is tainted for he being relative of the deceased is
altogether rejected. Similar observations based on similar principles have been laid down by Hon. Apex
Court in the case of Gurjit Singh Alias Gora and Anr. Vs. State of Haryana ( 2015)2 SCC(Cri 624
(Criminal Appeal No. 519 of 2010).

26. Now It would be relevant appropriate to switch over to the ante mortem injuries found on the
body of the deceased. The post mortem report is Ext. Ka. 2A which has been proved by Dr. M.M. Arya
P.W. 2. Three ante mortem injuries were noted on examination upon the body of the deceased which are
as follows:

1. Gun shot wound of entry of size 1.5 cm x 2 cm Thoresic Cavity Deep right side of
back 19 cm away from nipple. Blackening and charring are present around wound in 3 cm area.
2. Gun shot wound of exit presence in front of chest left 3 cm below left nipple in 6.00
clock's position measuring 3cm x 1.5 cm.
3. Fire arm wound measuring 5 cm x 2 cm x skull deep 5 cm above right eye-brow
lacerated. Blackening around wound is present in 1 cm area.

27. The very nature of the injuries so caused, in the opinion of the doctor could have been caused
around 8.30 A.M. on 24.6.,1999 by fire arm. This specific piece of testimony regarding injury being
caused at that point of time has not been challenged even in the least by the appellants. In cross
examination of P.W. 2, this much has come that heart and lungs were lacerated and due to this excessive
bleeding was possible and death may be caused instantly.

28. Contention has been raised to the ambit that theory of deceased telling his son (first informantP.W. 1) about the incident being caused by the appellants cannot be sustained in view of the aforesaid
condition of deceased's body at the time of assault. The contention does not hold good in view of the fact
discussed above that the testimony of P.W. 3 has been found to be natural, consistent, clinching and
inspiring confidence and he was present on the spot and has described every detail of the incident. This
portion of the testimony that the deceased told his son about the incident as to who caused it, has got no
relevance even if the same is excluded from the record because eye witness account of incident as given
by P.W. 3 Mohd. Afzaal after careful scrutiny by us is found to be genuine one and the same cannot be
brushed aside. May be, that some sort of the improvement was sought to be brought in, in the testimony of
578 INDIAN LAW REPORTS ALLAHABAD SERIES

witnesses would not thwart prosecution case under the facts and circumstances of the case already proved.
The incident has been consistently proved by the testimony of P.W. 3 Mohd. Afzaal. Testimony of P.W. 2
Dr. M.M. Arya corroborates ocular testimony of eye witness. P.W. 5 Harshvardhan Nagaich has also
proved preparation of site plan. He has stated in his testimony that he prepared site plan on the spot in the
presence of first informant P.W. 1 and eye witness Mohd. Afzaal P.W. 3. He has proved site plan Ext. Ka.
5. He has also prepared memo of simple and blood stained soil taken from the spot and has proved the
same. Obviously, all these things give certainty to place of occurrence. In this view of the matter, the fact
that first informant handed over his blood stained clothes to the subsequent Investigating Officer
Vikramjeet Singh P.W. 6 on 31.8.1999 will not make any dent in the prosecution case. Constable Chiranji
Lal P.W.7 has proved certain papers of the prosecution. One of them is inquest report Ext. Ka. 8. Perusal
of inquest report reflects that this inquest report is genuine, innocuous and it contains all the relevant
details say case crime number, sections under which the case has been registered etc. It also contains
description that inquest report was completed around 11.00 A.M. on 24.6.1999. There is no whisper from
the prosecution witnesses nor the same is gathered from attendant circumstances that in this case first
information report was ante timed. Therefore, entire prosecution case is coherently established. In the
statement of all the accused persons recorded under section 313 Cr.P.C. they have stated that the entire
prosecution case has been fastened upon them at the instance of and in consultation with Bashirruddin. In
this way, it is beyond our comprehension as to why the prosecution witnesses and particularly P.W. 3 and
1 will be keenly interested in sparing the real culprit and instead naming the present appellants as accused.
No such testimony or circumstance exist to act on such suggestion or supposition.

29. We are conscious of legal position that it is the quality of testimony of a witness that gets
primacy and not quantity. Testimony of solitary witness (PW-3) in this case after cautious appraisal of
facts and circumstances of this case is found to be based on solid rock of consistency, thus intensifying its
creditworthiness and proving unambiguously the occurrence, which aspect renders his testimony clinching
and wholly reliable. We may conclude that testimony of PW-3 Mohd. Afzaal carries ample weight.

30. In this view of the matter, we have every reason for holding that the prosecution has been able
to prove its case beyond reasonable doubt against the appellants. We have also gone through the judgment
and order of conviction dated 26.9.2006 passed by the Additional Sessions Judge, Court No. 2, Etawah in
S.T. No. 20 of 2000-State of U.P. Vs. Ali Ahmad and others under section 302/34 I.P.C. arising out of
case crime no. 337 of 1999, Police Station Kotwali, district Etawah, and we concur with the finding of fact
which is based on material on record and is justified. We uphold finding of conviction in appeals.
Consequently, all the aforesaid appeals being devoid of merit are dismissed.

31. In this case, the appellants Ali Ahmad and Zameel are in jail, whereas, appellant Abdul Sattar
is on bail. His bail bond is cancelled and sureties are discharged. He shall be taken into custody forthwith.
Appellants Ali Ahmad, Zameel and Abdul Sattar shall serve out their respective remaining sentence
imposed upon them by the trial court.

32. Let a copy of this judgment/order be certified to the court concerned for necessary information
and follow up action.
-----------
8 All. Shyamdhar Pandey Vs State Of U.P.
579
(2016) 8 ILRA 579
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2016

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Misc. Bail application No.- 24182 Of 2015
&
Criminal Misc. Bail application No.- 6712 Of 2016

Shyamdhar Pandey ...Applicant
Versus
State Of U.P. ...Opposite Party

Counsel for Applicant:
Viveka Nand, RL.K. Shukla, Gopal S. Chaturvedi

Counsel for Opposite Party:
G.AGovt. Advocate, Prem Prakesh, V.P. Gupta

Legislation referred to:-
Indian Penal Code, 1860 - Sections 34, 147, 148, 149, 304, 308, 323, 325, 436, 452, 504, 506
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2)(5)
 Code of Criminal Procedure, 1973 - Sections 437/439 (Bail)

FACTS :
Both bail applications, arising out of a common transaction and the same case crime, were heard together
and decided by a common order at the joint request of counsel for both sides, as both case files were
available in court on the same date.
The applicants Shyamdhar Pandey and Vikash Kumar Pandey were implicated in Case Crime No. 118 of 2015,
registered at P.S. Handia, District Allahabad, along with 22 other accused persons - a total of 24 - in
connection with an incident involving a clash between two rival groups. The FIR alleged that the accused,
belonging to the upper-caste community, attacked members of the scheduled caste community of the village,
setting huts on fire and causing injuries to 14 alleged victims.
During the incident, one person received a single blow to the head. He did not suffer any fracture or grievous
injury. However, the wound subsequently got infected, leading to development of septicaemia, which
ultimately resulted in his death due to cardiorespiratory arrest, as recorded in the post-mortem report. The
medical examination reports of the 14 alleged injured persons revealed injuries of a uniformly trivial nature -
several victims had no visible external injury at all, while others had only single contusions, abrasions, or
lacerated wounds, none of which was certified as grievous.
The applicants Shyamdhar Pandey and Vikash Kumar Pandey had been in custody since 11 April 2015 and 24
June 2015 respectively. Neither applicant had any previous criminal history. The prosecution alleged use of
lathi, danda, and ganasa, though none of the victims sustained any sharp-edged wound or bone fracture.

Questions Considered