# Anees v. State Of U.P

- **Citation:** (2016) 5 ILRA 2006
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-06
- **Bench:** Shashi Kant Gupta, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anees-v-state-of-u-p-43905
- **Pages:** 16

## Text

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2006 INDIAN LAW REPORTS ALLAHABAD SERIES
(2) For the said purpose, the Court, save and except in very exceptional
circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the
FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in
favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a
ground to hold that the criminal proceedings should not be allowed to continue."

12. This decision has been followed in Kamlesh Kumari and Ors. vs. State of U.P. and
Ors., 2015(6) SCALE 77. This has also been followed recently by a Division Bench of this Court,
(in which I was a member) in Sh. Suneel Galgotia and another Vs. State of U.P. and others,
2016(92) ACC 40.

13. Following above authorities and exposition of law, and discussion as also after
examination of complaint, I have no manner of doubt that complaint in question does not satisfy
ingredients of Section 405 IPC, hence no offence punishable under Section 406 IPC can be said to
have been committed. In such circumstances, order passed by Court below summoning petitioner is
clearly illegal, without jurisdiction and amounts to misuse of process of law.

14. In view thereof, writ petition is allowed. Impugned orders dated 21.02.2003 and
21.06.2004 as also the complaint made by respondents are hereby quashed.

15. There shall be no order as to costs.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2016

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Appeal No.- 6555 Of 2006
&
Criminal Appeal No.- 5792 Of 2006

Anees ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
K.K. Singh, Brijesh Sahai, Nazrul Islam Jafri, Qamrul Hasan Siddiqui, R.A. Siddiqui, R.C. Singh
5 All. Anees Vs State Of U.P.

2007
Counsel for Respondent:
Govt. Advocate

Murder -- Section 302 read with Section 34 IPC -- Eyewitness Testimony -- Credibility -- Place of
Occurrence -- Non-Recovery of Weapon -- Source of Light -- Motive -- Conviction of both appellants
under Section 302/34 IPC upheld; testimony of two eyewitnesses (PW-1, real sister of deceased, and PW-2,
independent witness) found cogent and consistent with regard to time, date, weapon and manner of
occurrence; apparent discrepancy in place of occurrence (door of deceased's house vs. Tangewali Gali)
satisfactorily explained -- deceased ran 20-25 paces after sustaining gupti blow before collapsing, internal
bleeding of one litre found in chest cavity during post-mortem; non-recovery of gupti (weapon of assault) not
fatal due to laches of Investigating Officer and does not affect prosecution case when ocular evidence is
corroborated by medical evidence; electricity at place of occurrence not material where accused had prior
acquaintance with deceased and could be identified by voice and body language; testimony of PW-1 as
interested witness (sister of deceased) not discarded solely on account of relationship; minor contradictions
and improvements in lengthy cross-examination insufficient to discard entire testimony; evidence of hostile
witnesses (PW-5, PW-8, PW-9) does not dislodge direct eyewitness account; gupti blow to chest sufficient in
ordinary course of nature to cause death, attracting clause 'thirdly' of Section 300 IPC; motive of trivial 'punja
fight' pales into insignificance in presence of reliable direct eyewitness evidence. (Paras discussed throughout)

Appeals Dismissed -- Judgment and sentence of life imprisonment with fine of Rs. 8,000/- awarded by the
trial court to each appellant under Section 302/34 IPC upheld; bail of appellant Kaluwa cancelled and Chief
Judicial Magistrate directed to take him into custody.

Appeals Dismissed -- Conviction and Sentence Upheld
Case Law Discussed:
Sanjeev Kumar Gupta v. State of U.P. (now State of Uttarakhand), 2015 (5) Supreme 369
Manjit Singh and Anr. v. State of Punjab and Anr., (2013) 12 SCC 746
Sanjeev v. State of Haryana, 2015 (2) SCC (Cri) 630
R. Shaji v. State of Kerala, (2013) 14 SCC 266
Dharnidhar v. State of U.P., (2010) 7 SCC 759
Gurjit Singh alias Gora and Anr. v. State of Haryana, 2015 (2) SCC (Cri) 624
State of Rajasthan v. Abdul Mannan, AIR 2011 SC 3013
Chittarmal v. State of Rajasthan, AIR 2003 SC 796
Pawan Kumar @ Monu Mittal v. State of Uttar Pradesh & Anr., AIR 2015 SC 2050
Major Singh & Anr. v. State of Punjab, 2007 (1) ACR 734 (SC)

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Both these criminal appeals arise out of the same judgment and order dated 19.09.06
passed by Additional Sessions Judge, Court No.7, Pilibhit in S.T. No. 61 of 1998 (State Versus
Anees and another), under Section 302/34 I.P.C., P.S. Kotwali, Pilibhit, whereby the learned trial
court has convicted the appellants for offence under Section 302/34 I.P.C. and has sentenced them
to undergo life imprisonment with fine of Rs.8,000/- imposed on each of them, in default of which
they were to undergo two years further imprisonment. Being related to the same occurrence and
same case crime number both these appeals were connected and are disposed of by this common
judgment.
2008 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Heard Shri Dilip Kumar assisted by Shri Rajarshi Gupta, on behalf of the accused
appellants, learned AGA, representing the State and carefully perused the evidence available on the
lower Court's record.

3. Shorn of unnecessary details, the prosecution case as appearing from the First
Information Report lodged by one Sanavvar Khan, father of the deceased, on 07.04.1997 at 9.50
P.M. at Police Station Kotwali, Pilibhit, is that earlier at about 12 noon on the same day, some
altercation had taken place between informant's son deceased Waseem @ Fuddu and the appellant
Anees during arm wrestling/ "punja fight" and the deceased had slapped appellant Anees. Although
the dispute was pacified at that time, the accused appellants Anees and Kaluwa, having a grudge
and feeling of revenge against deceased Waseem, reached to the house of the informant at about
8.30 P.M. They called Waseem, using abusive language. When he came out, they assaulted him
and took him to Tangewali Gali, where appellant Kaluwa, caught hold of deceased's hands and
appellant Anees made a hard blow from a "gupti" (a sharp edged long knife) he was carrying on the
chest of the deceased, which pierced his heart causing his instantaneous death. At the time of
occurrence, several persons of the vicinity were present, who saw the occurrence. Waseem @
Fuddu was immediately taken to the hospital, where doctors declared him brought dead. The
informant, in the F.I.R., also expressed his apprehension about the involvement of the real brothers
and cousin brothers of appellant Anees in the occurrence. However, the case was registered against
both the appellants only.

4. The inquest proceedings on the dead body of the deceased was conducted and it was sent
for the post mortem.

5. According to postmortem report (Ex. Ka.1), the deceased Waseem at the time of his
death was a young man of 22 years with an average built body. Following ante mortem injuries
were found by the doctors on his body during his postmortem. :-

"1) Lacerated wound 1 cm.X0.5c.m.X muscle deep on lower lip. In the middle inner
surface of lower lip is lacerated 1cm. X0.5 cm.

2) Abrasion 3cm. X 1 cm. in front of chin in middle.

3) Abrasion 1 cm X 1 cm. in front of right nose.

4) Multiple abrasion marks 0.5cm long X liner in front of neck in area 6 cm. X 4
cm.

5) Punctured wound 3cm. X 1cm. X heart muscle deep in front of chest in the
middle 15 cm. above amblicus. On desecting, sternum is cut anterior surface of heart is pierced up
to myocardium margin sharp and clean."
5 All. Anees Vs State Of U.P.

2009
6. The cause of death according to the post mortem report was shock and haemorrhage as a
result of ante mortem injuries.

7. It is relevant to mention here that on the same date i.e., on 07.04.1997 the accused
appellant Kaluwa was also medically examined at 9.55 P.M. in the district hospital and as per his
injury report (Ex.Ka-2) the following injuries were found on his body:-

"1) Lacerated wound 3 cm.X0.5 cm. bone deep in front of head 4cm. above
juncture of eyebrows bleeding.

2) Lacerated wound 1cm.X0.5cm X Muscle deep on the distal phalanx of ring
finger of left hand."

8. The case was investigated. The investigating officer prepared the site plan. He collected
plain earth and blood stained earth from Tangewali Gali, searched the houses of accused Anees and
Kaluwa for securing their arrest and recorded the statement of witnesses. However, the weapon of
offence, i.e., "gupti" could not be recovered.

9. The Investigating Officer, after concluding the investigation, submitted charge sheets
against six persons i.e., Anees, Kaluwa, Khalik Ahmad, Nafees, Aakil, and Mujeeb Ahmad.

10. Charges under Section 302 read with Section 149 and Section 147 of I.P.C. were
framed against the four accused persons, i.e., Khalik Ahmad, Nafees, Aakil and Mujeeb Ahmad.
Against appellant-accused Anees and Kaluwa, charges under Section 302 read with 34 of I.P.C.
were framed. All the accused persons denied the charges and faced the trial.

11. The prosecution, in support of his case produced 15 witnesses in all, out of whom, the
depositions of PW-1 Mahnaz Jahan, PW-2 Mohd. Majid, who are said to be eyewitnesses of the
occurrence and PW-4 Naeem Aara, the mother of deceased, are relevant.

12. PW-1 Mahnaz Jahan is the real sister of the deceased Waseem. She has been produced
as eye witnesses of the occurrence, who has fully supported the prosecution case in her testimony.
Her examination in chief is reproduced below.:-

मै हाडजर अदालत मुलडजमाि की घर्िा से पूवग से जािती हाँ इसमें िाम अिीस, िफीस िा० िलीक व मुजीव है।
मुलडजम कलुआ व आडकल आज गैर हाडजर है।

डदिांक 7 अप्रैल 1997 की घर्िा है साढ़े आठ बजे का समय था मेरा माई फुदू उफग वसीम डफज ठीक कर रहे थे
और मैं र्ी०वी० देि रहा थी। डफर कहा डक घर्िा 7 अप्रैल सि् 1997 की है। तमी बाहर से िर्िर्ािे की आवाज सुिाई दी, मै दरवाजे
पर गयी तो कलुआ िे कहा डक अपिे भाई फुद्दू को भेज दो तो मैंिे कहा डक फुर््र्ू बाहर तुम्हारा दोस्त बुला रहा है, मैं मी उसके पीछपीछे गयी जैसे ही दरवाजा िेला, तो मै बराबर में अपिे माई के पास िड़ी थी। एक दम कालुआ. िफीस, मुजीव आडकल िे मेरे भाई
को लपेर् डकया डकसी िे हाथ डकसी िे पैर पकड़ डलया। मै र्ीि रही थी इतिे में अिीस िे मेरे भाई फुद्दू के गुप्ती मार दी और अिीस
2010 INDIAN LAW REPORTS ALLAHABAD SERIES
बोला डक तेरे भाई का काम कर डदया है। मेरा भाई तॉगे वाली गली में 20-25 कदम भागा और मैं भी उिके पीछे गयी मैिे देिा डक वह
िूि से लथपथ थे। उिको देििे के बाद मै बेहोश हो गयी और डगर गयी। उसके बाद मुझे िहीं पता डक क्ा हआ।

डजस समय घर्िा हई उस समय डबजली के बल्ब की रोशिी थी, उस समय लाइर् आयी हई थी और मैं र्ी०वी०
देि रही थी। मेरे सौतेले डपता सिव्वर िां है। सिव्वर िां की अब मृत्यु हो गयी है।

13. The second eyewitness is PW-2 Mohd. Majid. His statement, as recorded during his
Examination-in-Chief is as under. :-

मैं मुलडजमाि हाडजर अदालत को घर्िा से पहले से ही जािता हाँ। उिके िाम कलुआ, िा० िलीक मुजीब, र्ौथे
का िाम िही जािता, अिीस, िफीस है। डदिांक 7 अप्रैल 1997 की बात है लगभग 6 वषग हो गए है। लगभग रात के 8. 30 पौिे िौ का
समय था. मैं वसीम उफग फुदू के घर के सामिे र्ाय की दुकाि पर मौजूद था। र्ाय पी रहा था। उस समय लाईर् थी। मैिे यह देिा डक
कलुआ और अिीस दोिों फुदू के दरवाजे पर आये कलुआ िे डकवाड़े िर्िर्ाई, अिीस पीछे िड़े थे। उसके बाद िा० िलीक, मुजीव
डजसके हाथ मेंतमर्ा था िा० िलीक के हाथ में हाकी थी, ये लोग भी वहां पर आ गये थ उिके साथ िफीस भी था। कलुआ िे कुण्डी
िर्िर्ाई तो घर से कोई आवाि िहीं आयी, इस बीर् में र्ाय की दुकाि से उठकर इि दोिों के पास पहाँ गया ये लोग जोर जोर से
गाडलयां बक रहे थे, मैिे इिसे पूछा डक क्ा बात तो इन्होंिे कुछ िही बताया और गाडलयां बकते रहे। उसके बाद मृतक की बह
महिाज दरवाजा िोलकर बाहर आयी अिीस िे उससे कहा डक अपिे माई क बाहर भेजो उसिे कहा डक अपिे भाई वसीम को बाहर
भेजो उसके कुछ देर बा वसीम जैसे ही दरवाजे पर आया तो कलुआ, अिीस िफीस उस पर झपर् पि और उसे दरवाजे से घसीर्
डलया, बाकी लोगों िे भी िींर्ा तािी की, िा िलीक व मुजीव िे भी िीर्ा तािी की। इतिे में वसीम िीर्े डगरा, और उसक बाद वह
तुरन्त सीिा िड़ा हो गया, उस बीर् अिीस िे उसके सीिे में गुप्ती मा दी। गुप्ती लगिे पर वसीम छुड़ाकर भागा, दाडहिी तरफ तांगें
वाली गली म भागा, इस बीर् मुलडजम िलीक व मुजीव िे कहा डक काम हो गया, भागा और यह लोग उिर तरफ शाह जी डमया की
मजार की तरफ भाग गए। जि वसीम घर के दरवाजे पर आया था, तब उसकी बहि महिाज भी उसके साथ आयी। मुलडजमाि के
भागिे के बाद वसीम तांगे वाली गली में जाकर डगर गया उसकी बहि महिाज िे डर्ल्ला कर कहा डक उसके भाई के र्ोर् लगी है
आकर देिो। उसके पीछे मै, तसलीम और मोहल्ले के कई लोग डजन्हें मैं िह जािता हाँ जाकर देिा डक वसीम गली में डगर पड़ा था।
और उसके सीिे में िूि बह रहा था िाली में िूि बह रहा था। तभी डकसी िे ररक्शा बुला ली। तसलीम िे उपर से उठाया और मैिे र्ांगे
पकड़ कर ररक्शे पर बैठाया और िा० पी०एि० ॅेिा के यहााँ लेकर गए जो र्ौराहे से 100, 200 मीर्र दूर है। उसके बतािे पर डक वह
ितम हो गया है तसल्ली के डलए सरकारी अस्पताल ले गए जहां उसे मृत घोडषत कर डदया गया।

इस घर्िा से पहले अिीस का वसीम का आपस में पंजे लड़ािे को लेकर झगड़ा हआ था अिीस िे उसे र्ेताविी
दी थी डक शाम को डिपर् लूंगा। घर्िा स्थल पर ही यह बात मुझे पता र्ली थी।

14. PW-4 Smt. Naeem Aara is the wife of the first informant Sanavvar Khan and the
mother of PW-1 Mahnaz Jahan and the deceased. The first informant Sanavvar Khan expired so he
could not be produced in Court to prove the F.I.R. His widow PW-4 Smt. Naeem Aara has proved
the F.I.R. by identifying the signature and handwriting of her husband Sanavvar Khan on it. Her
statement is as follows. :-

मेरी बहि शमीम आरा मेरठ में रहती है। करीब 8 साल पहले मैं अपिी बहि शमीम आरा के यहााँ मेरत गई थी।
मेरी लड़की महिाज जहााँ का रात में करीब 8 बजे फोि आया था उसिे यािी मेरी लड़की िे सूर्िा दी डक लड़ाई हो गई है। मम्मी तुम
जल्दी आ जाओ। अिीस कलुआ, मुजीव आडकल, िफीस और िलीक िाक्टर िे मेरे लड़के वसीम उफग फुर््र्ू के साथ मारपीर् की है।
यह सूर्िा डमलिे पर मैं सुबह करीब िौ साढे िौ बजे पीलीभीत पहाँर्ी डफर मुझे पता र्ला डक इि लोगों िे मेरे लड़के वसीम को घर से
बुलाकर उसके साथ मारपीर् की। डजस कारण मेरे लड़के की मृत्यु हो गई। मेरा लड़का वसीम गाड़ी र्लाता था। उसिे मकाि िरीदा
था तथा जीप बेंर् दी थी तथा इसके बाद उसिे परर्ूि की दुकाि कर ली थी मेरे पडत सिव्वर िां ठेकेदारी का काम करते थे। ठेकेदारी
में उन्हे िुकसाि हो गया था। डजस वजह से उन्होिे काम छोड़ डदया था। मेरे पडत के िाली रहिे पर हमारी और पडत की कहासुिी होती
रहती थी। सिव्वर िां से मेरी दूसरी शादी थी। पहले पडत से मेरे दो बच्चे एक वसीम व दूसरी महिाज जहााँ लड़की थी। मेरे पडत सिव्वर
5 All. Anees Vs State Of U.P.

2011
िां उदूग पढ़े थे वह मेरे सामिे डलिते पढ़ते रहते थे। मैं उिका लेि व हस्ताक्षर पहर्ािती हाँ। गवाह को पत्रावली पर मौजूद पररपत्र
सं०क-14/2 डदिाया गया तो गवाह िे कहा डक इस पर मेरे पडत सिव्वर िां के हस्ताक्षर मौजूद है। इि हस्ताक्षर पर प्रदशग क-3 िाला
गया। मेरे पडत सिव्वर िां की मृत्यु हो र्ुकी है।

15. The statements of remaining material witnesses i.e., PW-5 Mohd. Umar, PW-6 Mohd.
Tahseen Khan, PW-8 Afjal, PW-9 Sayed Athar Ali are of little relevance due to the reason that
PW-5 Mohd. Umar, who is alleged to be an eye witness and PW-8 & PW-9 who are said to be
witnesses of search, have turned hostile. PW-6 is witness of inquest proceedings only.

16. A perusal of statements of the three witnesses as quoted above, shows that PW-4 the
mother of the deceased Waseem was not present at the place of occurrence at the time when it took
place. Admittedly, she was at Pilibhit on the fateful day. Her statement shows that she had reached
there after getting the information about the occurrence by telephone of her daughter PW-1
Mahnaz.

17. Thus, the prosecution case rests mainly on the evidence of two witnesses, i.e., PW-1
and PW-2.

18. It is well settled legal position that in order to test the credibility of the prosecution
case, the quality and not the quantity of the witnesses is important and conviction can be based on
the sole testimony of a witnesses if it inspires confidence.

19. The statements as recorded during examination-in-chief of both PW-1 and PW-2,
reveal that barring few exceptions both the witnesses are throughout cogent and consistent in so far
as the time, date, place, weapon and manner of occurrence is concerned. Both these witnesses have
stated that it was 7th April, 1997. The time was about 8.30 P.M. The accused persons reached at the
door of the house of the deceased Waseem and called him. As soon as the deceased opened the
door, they attacked on him and overpowered him. The accused appellant Kaluwa caught hold of
deceased and accused appellant Anees inflicted a hard blow with the gupti he was carrying, which
pierced through the sternum into the heart of deceased Waseem. Both these witnesses have stated
that deceased Waseem somehow managed to come out from their grip and ran towards the
Tangewali Gali, but due to injury he could move only up to 20 or 25 paces, thereafter, he collapsed
and died in Tangewali Gali.

20. Before proceeding to scrutinize what the witnesses have deposed during their cross
examination, the grounds taken by their learned counsel Shri Dilip Kumar, for challenging their
credibility and trustworthiness are worth mentioning.

21. Shri Dileep Kumar has assailed the prosecution case and the witnesses produced in
support thereof mainly on the following grounds:-

1. PW-1 Mahnaz has been wrongly depicted as an eyewitness by the prosecution.
She is not an eye witness because her name does not find place in the F.I.R. as such.
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2. Mahnaz has shifted the place of occurrence. As per the FIR version, the place
where the occurrence (of stabbing) took place is Tangewali Gali where as PW-1 Mahnaz has stated
that the act of stabbing took place at the door of the deceased which cannot be believed because no
blood has been found at the door of the deceased. To the contrary, blood has been found in
Tangewali Gali.

3. The testimony of Mahnaz can not be relied upon due to the reason that she, in
her statement recorded under Section 164 Cr.P.C., has stated that she had lodged the F.I.R. of this
case but no such F.I.R., lodged by her is available. There is only one F.I.R. lodged by her father
Sanavvar Khan.

4. Mahnaz, during her cross examination, has denied that she had given any such
statement about lodging of F.I.R. before the Magistrate whereas the Magistrate, who has recorded
her statement under Section 164 Cr.P.C. has been produced in Court as P.W.14, who has proved
Mahnaz's statement under Section 164 Cr.P.C. as Ex. Ka 10 and has stated that Mahnaz had
deposed before him about lodging of an F.I.R. at the police station Kotwali.

5. The statement of PW-1 Mahnaz that after seeing the occurrence she became
unconscious at the place of occurrence and remained there in that state for about 1 1⁄2 hours, appears
unnatural and improbable.

6. Testimony of Mahnaz suffers from serious contradictions on material aspects.
The prosecution case came-up with an initial theory in the First Information Report naming two
assailants and four conspirators. Subsequently, material improvements were made in this theory by
introducing eye witness account, who named six persons all having active roles as assailants and
not mere 'conspirators' as alleged in the F.I.R..

7. The F.I.R., which forms the basis of a criminal case is shrouded with mystery in
this case. The first informant Sanavvar Khan, is clearly is not an eye witness of the occurrence and
he has lodged the First Information Report on the basis of information given to him by some other
persons and the prosecution has absolutely failed to bring on record as to who could have informed
Sanavvar Khan about the incident. P.W.1 Mahnaz has categorically stated that she did not inform
Sanavvar Khan about the incident. According to her own statement, she became unconscious after
seeing the occurrence and remained in an unconscious position for about 1 1⁄2 hours. By that time
the first information report had been lodged. P.W.2 Majid has also admitted that he had not
informed Sanavvar Khan about the incident. Learned counsel for the appellants has contended that
it is a great mystery as to who informed the first informant Sanavvar Khan about the incident which
casts a serious shadow of doubt in the prosecution story regarding the reliability of the F.I.R.

8. It is next contended that PW-2 Majid is a 'chance witness' and his presence at
the place of occurrence is doubtful, which is evident from the fact that he has stated that he was
present at the tea stall, situated on the western side of the place of occurrence but according to the
statement of Investigating Officer, there was no tea stall in the western side of the house of the
5 All. Anees Vs State Of U.P.

2013
deceased. Moreso, PW-2 does not even know the name of 'Chaiwala' or the owner of the tea stall
though he was a frequent visitor there.

9. Both the aforesaid so called eye witnesses PW-1 and PW-2 have categorically
stated that the 'place of assault' where the fatal blow by gupti was inflicted on the deceased
Waseem, was the door of the house of the deceased, whereas the dead body of Waseem, has been
found lying in a pool of blood at "Tangewali Gali." No blood has been found at the door steps of
Waseem's house, which completely rules out the possibility of incident being taken place there and
it creates a serious doubts in the veracity of statement of both the witnesses in so far as place of
occurrence is concerned.

10. The doctor, has argued that the doctor has categorically opined that the fatal
blow inflicted on the deceased was of such a nature that the deceased could not have moved any
further after sustaining it. But according to both the eye witnesses, after sustaining the blow of
gupti, the deceased ran upto 20-25 paces towards Tangewali Gali, which appears improbable and
makes the prosecution story unworthy of credit.

11. There was no "source of light" at the place of occurrence. The occurrence is of
night and the trial court has recorded a finding that there was no electricity supply in the city at the
time of occurrence. Therefore, it was not possible for PW-1 and PW-2 to witness the incident and
to identify the assailants.

12. The 'motive' as alleged by the prosecution is very weak because only on a
trivial dispute during hand wrestling or "punja fighting", no one would take revenge in such a
heinous and cruel way.

13. There is apparent 'improvement' in prosecution version not only with regard to
'manner of incident' but also regarding 'number of assailants', which creates serious doubts in
prosecution story and probablises the defence story that the incident might have taken place in
some other manner, at some other time and at some other place which was not witnessed by any
person. However, the accused appellants have been falsely implicated in the case after due
deliberations, because of enmity.

22. On the aforesaid grounds, learned counsel for the appellants has contended that the trial
court has rightly acquitted four accused persons by giving them benefit of doubt but has committed
gross illegality by convicting the appellants, relying only on the testimony of PW-1 and PW-2, both
of whom are highly interested and partisan witnesses.

23. Accordingly, learned counsel for the appellants has prayed that that part of the
impugned judgment whereby the appellants have been convicted and sentenced, be set aside and
their appeal be allowed.
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24. Per contra, the submission of learned AGA is that the prosecution by means of cogent
and convincing evidence, has proved its case against the appellants beyond every shadow of
reasonable doubt and as such the impugned judgment does not require any interference.

25. Learned AGA has vehemently argued that minor contradictions and some
improvements are natural in the statement of witnesses, who have not been tutored. Some
discrepancies and omissions are bound to occur in the statement of witnesses, as with the passage
of time, the memory fades. Learned AGA has further contended that none of the accused appellants
have stated anything in his defence during his examination under Section 313 Cr.P.C. except that
on the night of occurrence, there was no electricity supply in the city. He has contended that both
the eyewitnesses have categorically stated that electricity supply had resumed at about 8.25 P.M.
PW-1 during her cross-examination on this point, has given satisfactory answer. In this regard,
learned A.G.A. has drawn our attention to the following statement of PW-1 :-

घर्िा वाले डदि घर्िा से 10-15 डमिर् पहले घर पर र्ेलीडवजि देि रही थी। जब मैं र्ीवी देि रही थी, उस
समय पड़ोस की लािली बेगम थी मेरे साथ र्ीवी देि रही थी। यह लािली बेगम घर्िा से एक घन्टा पहले मेरे घर पर थी। लािली
बेगम एक घन्टा पहले से र्ी.वी. िही देि रही थी। क्ोंडक लाइर् 8-25 बजे आयी थी।

26. Learned A.G.A. has argued that the F.I.R. in this case has been lodged promptly by the
first informant Sanavvar Khan. However, as he died before his deposition could have been
recorded, the F.I.R. was proved by his widow PW-4 Smt. Naeem Aara, by identifying her deceased
husband's signature on it. On the aforesaid grounds learned A.G.A. has prayed that the appeal being
devoid of merit be dismissed.

27. Nothing has been elicited in the cross-examination of Naeem Ara to show that the
signature of Sanavvar on the F.I.R. are not genuine. It has been contended by learned A.G.A. that
promptness of F.I.R. rules out the possibility of any deliberation or consultation before lodging of
F.I.R. in order to falsely implicate some one. Advancing his arguments further learned A.G.A. has
contended that even the witness PW-5 Mohd. Umar, who has turned hostile, has stated that when
he reached at Tangewali Gali, where Fuddu was lying dead, he saw Mahnaz weeping there. Thus,
the presence of Mahnaz at the seen of occurrence is admitted to the hostile witness also. Learned
A.G.A. has further submitted that the absence or weakness of motive does not make any difference
in wake of the well settled legal position that where the eyewitness account of the occurrence is
available the motive pales into insignificance.

28. We have duly considered the evidence on record and the arguments based thereon.

29. A close scrutiny of the statements of both the eyewitnesses examined by the
prosecution in this case reveals that both of them are throughout consistent with regard to the place
where deceased Waseem had sustained the fatal gupti blow, which according to them is the door of
the house of deceased Waseem. Both these witnesses have been cross-examined at length by
learned counsel for the accused persons, but their deposition is remained intact and unshaken with
regard to the place where the fatal gupti blow was inflicted on the deceased by the accused persons.
5 All. Anees Vs State Of U.P.

2015
30. The defence has tried to assail the place of occurrence on three grounds. First, that no
blood was found at the door of deceased Waseem, which totally belies the prosecution story that
the gupti blow was inflicted by the accused-appellant Anees at his door, second, in the F.I.R., it has
clearly been mentioned that the accused persons took the deceased in Tangewali Gali and at there
they pierced the heart of deceased by 'Gupti' and third, in the site plan the I.O. has shown
'Tangewali Gali' as place of occurrence. Learned counsel for the appellants has vehemently argued
that had such a hard blow of gupti been inflicted on the chest of deceased, which penetrated into his
heart piercing it, at his door step definitely a fountain of blood would have been oozed out and
would have spilt on his door step. But the blood has been found at Tangewali Gali and not at the
door of the deceased.

31. We do not find any substance in the aforesaid contention of learned counsel for the
appellants for the following two reasons:-

(1) PW-1 Mahnaz Jahan, during her cross-examination, has categorically stated
that she had seen the blood at her door after the occurrence. Her statement in this regard is as
under:-

डजस जगह पर मेरे भाई के गुप्ती लगी वहााँ जमीि पर िूि डगरा था । िूि जमीि पर वहााँ िही था वही डमर्र्ी में
इकर्ठा हो गया था िूि मैिे रात में भी देिा था और जब मैं सुबह बाहर आयी तब भी देिा था। रात को 8-1/2 बजे देिा था सुबह को
डकतिे बजे देिा ध्याि िही ।

32. Although PW-2 Mohd. Majid has stated that he had not seen any blood at the door, but
he has stated that he had seen the blood at the place where Waseem had fallen down. He has further
clarified the scene by stating that when Waseem sustained gupti blow then the blood did not ooze
out immediately from his chest. The following statement of PW-2 is relevant in this regard "वसीम के
जब गुप्ती लगी तो उसके तेजी से िूि िहीं डिकला डजस समय गुप्ती लगी थी उस समय मैं यह िहीं देि पाया डक उसके कपिे िूि से
भीगे है या िहीं".".

33. Both the witnesses i.e. PW-1 and PW-2 have stated that after sustaining gupti blow,
Waseem somehow managed to come out from the grip of the assailants and ran towards Tangewali
Gali and after going 20 or 25 paces, he collapsed in the Gali.

34. The aforesaid picture of the occurrence clearly indicates that deceased Waseem even
after sustaining the gupti blow somehow, managed to free himself from the grip of assailants and
ran towards Tangewali Gali. As the gupti had pierced his heart after cutting his sternum, it appears
probable that the internal bleeding might had started and the blood oozed out after a few seconds
when Waseem collapsed at the Tangewali Gali. It is worth mentioning that PW-3 Dr. Saubhagya
Prakash who has conducted the postmortem has stated that he found one liter of blood in his chest
cavity during the postmortem. This fact also shows that there was internal bleeding and the blood
oozed out when the deceased fell down in Tangewali Gali.
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35. Under almost identical situation, the Apex Court in the case of Sanjeev Kumar Gupta
Versus State of U.P. (Now State of Uttarakhand) 2015(5) Supreme 369 has observed as under:-

"The defence was raised that there has been improvement by the prosecution
witnesses with respect to the place of occurrence of the incident. However, from a perusal of the
site map it becomes clear that the incident originally took place near the cycle stand and on
receiving the injuries deceased ran away from the place and fell down after 10-20 steps. He was
chased by four accused and injuries were caused to him by the near I.G.N.O.U. building, which
was hardly 10-20 steps from the place where he fell down after getting trapped with the wire. The
veracity of the above-mentioned distance has come forth in the cross- examination of the witnesses.
We believe a person may presume them to be one place or two separate places. Therefore the
discrepancy with respect to the place of occurrence has no bearing on the prosecution case."

36. The argument of learned counsel for the appellants that after sustaining such gupti blow
there is probability of immediate death, and it was not possible for deceased to run for about 15 or
20 paces, appears to have no force because it depends on the capacity to endure the pain and the
physical condition of a person and the reaction may be different among different persons.

37. We do not find any reason to disbelieve the oral evidence of the eyewitnesses only on
the ground that I.O., in the site plan has shown the place of occurrence as Tangewali Gali. The
statement of both the eyewitnesses as a whole inspire confidence. Both of them, in no way, were
going to be benefited by remaining firm on their statement that the occurrence took place at the
door step of deceased Waseem. They could have easily stated that the incident had occurred at
Tangewali Gali in order to strengthen their case, but both the eyewitnesses have stated the truth
without caring that I.O. has shown a different place i.e. 'Tangewali Gali' where the incident of
inflicting the gupti blow had taken place.

(2) The place of occurrence cannot be disputed simply on the ground that there is
no recovery of blood stained earth from the door step of Waseem. It may be possible that the I.O.,
due to negligence or laches on his part, failed to collect the blood fallen at the door of deceased
Waseem.

38. Likewise non-recovery of 'Gupti' i.e. the weapon of assault is also not fatal to
prosecution in wake of well settled legal position that accused will not be benefitted by laches of
Investigating Officer.

39. In the case of Sanjeev Kumar Gupta (supra), the Apex Court has held as under:-

"The investigation suffers from certain flaws such as non recovery of the weapon
used by the accused appellants and recovery of the blood stained shirt after six days of the date of
the incident. However, merely on the basis of these circumstances the entire case of the prosecution
cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies
of the prosecution witnesses that the deceased died a homicidal death. Reaffirmed the law as laid
5 All. Anees Vs State Of U.P.

2017
down in Manjit Singh and Anr. Vs. State of Punjab and Anr. (2013) 12 SCC 746, that when there is
ample unimpeachable ocular evidence and the same has received corroboration from medical
evidence, non recovery of blood stained clothes or even the murder weapon does not affect the
prosecution case."

40. The description of ante mortem injuries in the postmortem report of deceased shows
that a scuffle had taken place before his death, which is evident from the fact that the doctor, who
has conducted postmortem has stated that on 07.04.1997 he had also medically examined the
appellant Kaluwa at 9.55 P.M. and he had found the following injuries on his body:-

"1) Lacerated wound 3 cm.X0.5 cm. bone deep in front of head 4cm. above
juncture of eyebrows bleeding.

2) Lacerated wound 1cm.X0.5cm X Muscle deep on the distal phalanx of ring
finger of left hand."

41. The date and time of occurrence i.e. 7.4.1997 at 8.30 P.M. and the date and time of
medical examination as mentioned in the injury report of Kaluwa clearly shows that appellant
Kaluwa had sustained injuries in the same occurrence. All his injuries were found fresh, which
fortifies the prosecution story that a scuffle took place between Kaluwa and deceased Waseem
when Kaluwa tried to catch hold of the deceased in order to over power him.

42. So far as the source of light at the place of occurrence is concerned, the statement of
both the eyewitnesses reveals that electricity supply was resumed at 8.30 P.M. PW-1 Mahnaz has
remained firm on her statement that she was watching TV and his brother deceased Waseem was
repairing the refrigerator when the accused appellants reached at his door and called him to come
out. Her statement is as follows:-

घर्िा वाले डदि घर्िा से 10-15 डमिर् पहले घर पर र्ेलीडवजि देि रही थी। जब मै र्ी०वी० देि रही थी उस
समय पिोस की लािली बेगम भी मेरे साथ र्ी०वी० देि रही थी। यह लािली बेगम घर्िा से एक घन्टा पहले मेरे घर पर थी। लािली
बेगम एक घन्टा पहले से र्ी०वी० िही देि रही थी क्ोडक लाइर् 8-25 बजे आयी थी।

43. It is not possible to watch TV or to repair fridge without electricity.

44. Even assuming for the sake of arguments that there was no electricity supply at the time
of occurrence, it does not make any difference as all the accused appellants had prior acquaintance
with the deceased and his family and they could have been easily identified by their voice and their
body language even in the dark also.

45. The weakness or absence of 'motive' has no relevance in a case where there is
eyewitness account of the incident. Hon'ble Apex Court in a catena of judgments has laid down the
law that in case of direct evidence motive pales into insignificance. Whether the motive behind the
occurrence was quarrel during 'hand wrestling' or 'Punja fight' which took place earlier in the
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morning or something else could be known only to the assailants and the prosecution is not
required to prove it if has successfully proved its case with the help of reliable eyewitnesses.

46. In the case of Sanjeev Versus State of Haryana (2015) 2 SCC (Cri) 630, Hon'ble
Supreme Court has held as under:-

"It is settled principle of law that, to establish commission of murder by an
accused, motive is not required to be proved. Motive is something which prompts a man to form an
intention. The intention can be formed even at the place of incident at the time of commission of
crime. It is only either intention or knowledge on the part of the accused which is required to be
seen in respect of the offence of culpable homicide. In order to read either intention or knowledge,
the courts have to examine the circumstances, as there cannot be any direct evidence as to the state
of mind of the accused."

47. No doubt the star witness of this case PW-1 Mehnaz who is the real sister of deceased
is a pardanashin lady and it cannot be expected form her to face the gruelling cross examination
without any contradiction or omission. We do not find any substance in the argument advanced by
learned counsel for the appellants pointing out the discrepancy with regard to lodging of F.I.R. by
Mehnaz as stated by her in her statement under Section 164 Cr.P.C.

48. Her statement recorded under Section 164 Cr.P.C. shows that she has stated that मैिें FIR दजग
करायी थी ।

49. Although Mehnaz has stated that she had lodged the FIR, but only on this ground alone
her entire deposition cannot be discarded. The use of word मैिें may denote the lodging of FIR by
her family members and not by her only.

50. The I.O. has not stated anything about lodging of 2nd FIR by Mehnaz. Defence has not
even put any question in this respect from the I.O. The magistrate recording her statement under
Section 164 Cr.P.C. was duty bound to clarify the position but he has failed to do so. In R. Shaji v.
State of Kerala (2013) 14 SCC 266, the apex court has held as under:-

"In a case where the the magistrate has to perform the duty of recording a
statement under Section 164 Cr.P.C., he is under an obligation to elicit all information which the
witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware
of the purpose for which he has been brought and what he must disclose in his statement under
Section 164 Cr.P.C.. Hence, the magistrate should ask the witness explanatory questions and
obtain all possible information in relation to the said case."

51. The testimony of Mehnaz cannot be discarded on the ground that she being the real
sister is an interested and partisan witness. A near relative will never exonerate the real culprit and
falsely implicate an innocent person.
5 All. Anees Vs State Of U.P.

2019
52. In Dharnidhar v. State of U.P. (2010) 7 SCC 759 it has been held be apex court that
"There is no hard and fast rule that family members can never be true witnesses to the occurrence
and they will always depose falsely before the court. A pedantic approach cannot be applied while
dealing with the evidence of an interested witness. Such evidence can not be ignored or thrown out
solely because it comes from a person closely related to the victim."

53. In a recent case of Gurjit Singh alias Gora and Anr.