# Asgar Khan & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-27
- **Case number:** Criminal Appeal No.750 of 2004
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asgar-khan-ors-in-jail-v-state-of-u-p-44655
- **Pages:** 12

## Headnote

A. Indian Penal Code, 1860 - Section 452
(house trespass), 307, 302/34 IPC and
Arms Act, 1959 - Section 27 - accusedappellants examined under Section 313
Cr.P.C- No illegality or infirmity in
Conviction
under
Sections
452
and
302/34 IPC - Life imprisonment - Direct
evidence. (Para 14 & 35)

B. Basic principle of appreciation of
evidence of a rustic witness -The rustic
witness as compared to an educated
witness is not expected to remember
every small detail of the incident and the
manner in which the incident had
happened more particularly when his
evidence is recorded after a lapse of
time-witness is bound to face shock of
the
untimely
death
of
his
near
relative(s). (Para 19)

C. Relevancy of motive - motive becomes
irrelevant
in
the
presence
of
direct
evidences - the accused appellants were
bearing enmity on account of progress of
the informant's family and they were bent
upon for altercation. Informant used to
avoid the altercation but they never
relented before the accused appellants -
fact corroborated by the testimony of the
informant - Injury report and postmortem
reports corroborate prosecution version
regarding manner of assault and time of
incident- ocular version also corroborated
by the medical report. (Para 29, 30 & 33)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

## Text

2 All. Asgar Khan & Ors. Vs State of U.P.
167
circumstances aggravating and mitigating
in individual cases.

71. It is settled legal position that
appropriate sentence should be awarded
after giving due consideration to the facts
and circumstances of each case, nature of
offence and the manner in which it was
executed or committed. It is obligation upon
court to constantly remind itself that right of
victim, and be it said, on certain occasions
person aggrieved as well as society at large
can be victims, never be marginalised. The
measure
of
punishment
should
be
proportionate to gravity of offence. Object
of sentencing should be to protect society
and to deter the criminal in achieving
avowed object of law. Further, it is expected
that courts would operate the sentencing
system so as to impose such sentence which
reflects
conscience
of
society
and
sentencing process has to be stern where it
should be. The Court will be failing in its
duty if appropriate punishment is not
awarded for a crime which has been
committed not only against individual
victim but also against society to which
criminal and victim belong. Punishment to
be awarded for a crime must not be
irrelevant but it should conform to and be
consistent with the atrocity and brutality
which the crime has been perpetrated,
enormity of crime warranting public
abhorrence and it should 'respond to the
society's cry for justice against the criminal'.
[Vide: Sumer Singh vs. Surajbhan Singh
and others, (2014) 7 SCC 323, Sham
Sunder vs. Puran, (1990) 4 SCC 731,
M.P. v. Saleem, (2005) 5 SCC 554, Ravji
v. State of Rajasthan, (1996) 2 SCC 175].

72. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, nature of offence
and the manner in which it was executed
or committed, we find that punishment
awarded to accused-appellants by Trial
Court in impugned judgment and order is
not excessive and it appears fit and proper
and no question arises to interfere in the
matter on the point of punishment
imposed upon him.

73. We, therefore, find no merit in
appeal. It is accordingly, dismissed and
judgement and order dated 12.05.2000
passed by First Additional District and
Sessions
Judge,
Kanpur
Dehat,
is
maintained and confirmed.

74. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

75. Accused-appellants 1 and 2 are
in jail, they shall serve out sentence as per
judgement dated 12.5.2000 passed by the
Trial Court as confirmed by this Court.
----------
(2019)10ILR A 167

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2019

BEFORE

THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No.750 of 2004

Asgar Khan & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Braham Singh, Sri Arun Kr. Singh, Sri
Arvind Kumar Srivastava (A.C.), Sri K.D.
168 INDIAN LAW REPORTS ALLAHABAD SERIES
Tewari, Sri M.D. Mishra, Sri N.I. Jafri, Sri P.K.
Tripathi, Sri Sushil Kumar Tewari, Sri Pradeep
Kumar Bishnoi, Dr. Arun Srivastava.

Counsel for the Opposite Party:
A.G.A., Mrs. Poonam Dubey.

A. Indian Penal Code, 1860 - Section 452
(house trespass), 307, 302/34 IPC and
Arms Act, 1959 - Section 27 - accusedappellants examined under Section 313
Cr.P.C- No illegality or infirmity in
Conviction
under
Sections
452
and
302/34 IPC - Life imprisonment - Direct
evidence. (Para 14 & 35)

B. Basic principle of appreciation of
evidence of a rustic witness -The rustic
witness as compared to an educated
witness is not expected to remember
every small detail of the incident and the
manner in which the incident had
happened more particularly when his
evidence is recorded after a lapse of
time-witness is bound to face shock of
the
untimely
death
of
his
near
relative(s). (Para 19)

C. Relevancy of motive - motive becomes
irrelevant
in
the
presence
of
direct
evidences - the accused appellants were
bearing enmity on account of progress of
the informant's family and they were bent
upon for altercation. Informant used to
avoid the altercation but they never
relented before the accused appellants -
fact corroborated by the testimony of the
informant - Injury report and postmortem
reports corroborate prosecution version
regarding manner of assault and time of
incident- ocular version also corroborated
by the medical report. (Para 29, 30 & 33)

Criminal Appeal dismissed (E-7)

List of Cases Cited: -

1. St. of U.P. Vs Krishna Master & ors. (2010)
12 SCC (324)

2. St. of U.P. Vs Krishna Master & ors. (2010)
12 SCC (324)
3. Rajesh Govind Jagesha Vs St. of Mah.
(1999) 8 SCC 428

4. Rajagopal Vs Muthupandi alias Thavakkalai
& ors. (2017) 11 SCC 120

5. Banna Reddy & ors. St. of Kar. (2018) 5 SCC
790

(Delivered by Hon'ble Ali Zamin, J.)

1. Heard Sri Braham Singh, learned
counsel for the appellants, Sri Ratan
Singh, learned A.G.A. for the State of
U.P. and perused the material available on
record.

2. This appeal has been preferred
against the judgment and order dated
28.01.2004, passed in Session Trial
No.709 of 1994, State of U.P. vs. Asghar
and others, by which learned Additional
Sessions Judge, Court No.13, Moradabad,
has convicted and sentenced each of the
appellants to undergo three years rigorous
imprisonment and Rs.1000/- fine u/s 452
IPC, in default of fine to undergo three
months additional simple imprisonment
and to undergo life imprisonment and fine
of Rs.5,000/-, u/s 302/34 IPC, in default
of fine six months additional sentence.

3. In brief, prosecution case is that the
house of informant Mohd. Ali is situated in
the east at outer side of the village. In the
intervening night of 26/27-6-1994 informant
and his brother Arif were sleeping on the
roof of his neighbour Komil Dhobi and his
elder brother Farzand was sleeping on the
roof above the door and his younger brothers
Raees and Dhumi, mother, father, ladies and
children were sleeping below in the
courtyard.

4. All of sudden, near about at 02:30
A.M., on the scream of brother-Farzand
2 All. Asgar Khan & Ors. Vs State of U.P.
169
all the aforesaid family members woke up.
Informant, at once, flashed a torch towards the
cot of Farzand and saw and identified very
well near the cot of Farzand, his neighbour
Guddu Bara and Asghar khan, sons of Afsar
Khan, resident of village Syaundara and their
relative Khurshid son of Munna, village and
police station Shahbad, District Rampur. On
his interruption Asgar Khan inflicted knife
injury on the stomach of his brother-Farzand
and Guddu Bara fired a shot by country made
pistol although he tried much to save himself
by wrapping a quilt. All brothers, ladies and
children exhorted them but it was in vain.
When the informant tried to go ahead then
Khurshid by pointing a country-made pistol
towards them fired with intention to kill them.
On account of fear, informant and Arif hid
themselves in the khandhar (ruins of building)
of Munne Khan. Dhoomi also hid himself by
crossing the wall towards west in the street.
Raees also tried to run away but all the three
assailants jumping from the roof surrounded
him at the cot and wounded him by beating
him with the barrel and handle of the countrymade pistol and firing. All the three brothers
being alarmed called for help but due to fear
no one from the village came to their rescue.
When the informant's wife Bano interrupted
then Khurshid stating that she is talking too
much kicked on her face even then she did not
keep mum then Khurshid fired a shot at her.
When all the assailants went away towards
north side of his house only then the informant
saw and found that his brother-Farzand and
his wife-Bano had expired and the condition
of Raees also has become critical.

5. The assailants were bearing
enmity with the informant's family
because his family was doing well in life
by doing hard work. Accused were bent
upon for altercation but informant's
family used to avoid it.

6. Informant-Mohammad Ali got
scribed report (Ex. Ka-1) by Abdul Aziz (DW1) and handed it over to the police station
Vilari, district Moradabad. On the basis of
written report (Ex.Ka-1), Case Crime No.228
of 1994 under Sections 452, 307 and 302 I.P.C.
was registered under chik FIR (Ex.Ka-6) and
investigation was handed over to the S.H.O.,
Dharam Singh Malik (PW-8). Investigating
Officer recorded the statements of the
informant-Mohammad Ali and injured-Raees
Ahmad at the police station and thereafter
proceeded to the place of incident along with
S.S.I. Muneshwar Singh and other police
personnel. He inspected the spot and prepared
the spot map (Ex.Ka-17). He also took into his
possession the torch from the informant and
prepared its memo (Ex.Ka-2). On the
instruction of the Investigating Officer inquest
memo of the deceased-Farzand Ali (Ex.Ka-20)
and relevant documents i.e. photo lash (Ex.ka21), specimen seal (Ex.ka-22), proforma 33
(Ex.ka-23), inquest memo of the deceased-Smt.
Bano Begum (Ex.ka-24), photo lash (Ex.ka25), specimen seal (Ex.ka-26) and letter to
C.M.O. (Ex.ka-27) were prepared and the
dead-bodies of the deceased Farzand and Smt.
Bano Begum were dispatched for autopsy. The
injured-Raees Ahmad was sent to P.H.C.
Moradabad for medical examination along
with Homeguard-Bhure Singh Yadav.

7. Dr. V.N. Saxena (PW-7)
conducted medical examination of injured
Raees Ahmad on 27.06.1994 at 7:30 A.M.
and prepared the report (Ex.Ka-15),
according to which following injuries
were found :-

(i) lacerated wound 2.5 cm x 0.5
cm x skull deep on back of left side head
12 cm above Rt. ear fresh bleeding
present kept under observation advised Xray skull.
170 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) lacerated wound 6.5 cm x
3.5 cm x bone deep in front of left upper
arm 7 cm above left elbow fresh bleeding
present kept under observation advised Xray left upper ar1-17m.

(iii) lacerated wound 4 cm x 1
cm x muscle deep on the front of left
forearm 6 cm below right elbow fresh
bleeding present kept under observation
advised X-ray left forearm.

(iv) firearm wound of entry 3
cm x 2 cm x muscle deep on the outer
aspect of Rt. thigh 24 cm above on the
right knee blackening and tattooing
around the wound present kept under
observation advised X-ray right thigh.

(v) lacerated wound 1 cm x 0.5
cm x depth not probed over the front rims
of Rt. thigh 30 cm above the right knee.
No blackening and tattooing. Fresh
bleeding present kept under observation
advised X-ray Rt. thigh.

(vi) traumatic swelling 5 cm x 3
cm on the right side chest kept under
observation advised X-ray chest.

All the i1-17njuries were kept
under observation for cause of nature
except injury no. (4) by firearm. Injury
no.(6) was caused by blunt object
duration fresh.

8. Dr. Madan Mohan (PW-5)
conducted autopsy on the dead-body of
the deceased-Farzand Ali and prepared
report (Ex.ka-6), according to which
following injuries were found on the body
of the deceased :-

(i) Gun shot wound of entry 4
cm x 2 cm x brain cavity deep on left side
head about 5 cm above from left ear pinna
skin 6 cm x 4 cm charred & tattooed &
singing and gout present margin inverted
lacerated. On opening there is fracture of
both frontal bone (2 pieces). Both
temporal
bone
&
parietal
bones.
Recovered 2 wadding, (i) cap & (32)
small metallic pellets from the brain
cavity.
Direction
is
downward
&
anteriorly. Brain is badly lacerated.

(ii) (4) Linear abrasion in an
area 16 cm x 6 cm over the front of chest
in middle & Rt. side of chest middle part.

(iii) incised wound 8 cm x 3 cm
x abdominal cavity deep on Rt. side
abdomen about 9 cm between Rt. nipple
at 5 O'clock position margin clean cut. A
loop of small intestine is coming out of
the wound.

(iv) incised wound 4 cm x 2 cm
x abdominal cavity deep on Rt. side
abdomen about 1 cm lateral to injury no.
(3) margin clean cut.

According to his opinion cause
of death is due to shock and haemorrhage
as a result of anti-mortem injuries.

9. Dr. Madan Mohan (PW-5) also
conducted autopsy on the dead-body of
the deceased-Smt. Bano Begum and
prepared the report (Ex.ka-7), according
to which following injuries were found :-

(i) gun shot wound of entry 2.5
cm x 1cm x chest cavity deep on left side
back over scapula about 8 cm below left
shoulder joint with charring and tattooing
of surrounding skin area 19 cm x 13 cm
margins inverted, lacerated. The direction
is downward in wall and anteriorly & on
opening there is laceration of pleura left
2 All. Asgar Khan & Ors. Vs State of U.P.
171
lung upper lobe of the heart and Rt.
vertical and diaphragm & left lobe of liver
is lacerated. One metallic bullet recovered
on the abdominal cavity.

(ii) lacerated wound 1⁄2 cm x 1⁄2
cm on left side head about 9 cm above
from upper ear.

According to his opinion cause
of death is due to shock and haemorrhage
as a result of anti mortem injuries.

10. On receiving the death information
of injured Raees Ahmad S.I. T.R. Kothari
conducted inquest of the deceased Raees
Ahmad and prepared inquest memo (Ex.ka6). He also prepared relevant documents i.e.
chalan lash, letter to R.I., letter to C.M.O,
specimen seal and photo lash (Ex.ka-7 to 11)
respectively and after sealing and stamping
the dead body he handed over the same for
postmortem to constables Hakam Singh and
Kailash.

11. P.W.-10 Dr. Kishore Kumar
conducted autopsy on the body of the
deceased-Raees Ahmad and prepared
postmortem report (Ex.ka-28), according
to which following injuries were found :-

(i) stitched wound 3 cm x 3 cm
stitched on the middle of head.

(ii) stitched wound 7 cm x 7 cm
stitched on the flexer aspect (Lt.) arm.

(iii) stitched wound 5 cm x 5 cm
stitched on the flexer aspect of left forearm.

(iv) wound of entry 1 cm x 0.5
cm on the front of thigh through &
through to injury no.(5).

(v) stitched wound 3 cm x 3 cm
stitched at the lateral aspect of Rt. thigh as
outer side of right thigh. Injury nos.2 and
4 were communicated to each other on
opening of the brain and blood was found.

According to his opinion cause
of death is due to head injury.

12. Investigating Officer, after
completing the investigation, submitted
charge-sheet (Ex.Ka-18), under Sections
452, 307, 302/34 I.P.C and 27 Arms Act
against the accused persons before the
Court of Chief Judicial Magistrate,
Moradabad, who committed the accused
for trial to the Court of Session, where
Case
Crime
No.228 of
1994
was
registered as Session Trial No.709/94
State of U.P. vs. Asghar and others,
wherefrom, it was transferred to the Court
of Additional Sessions Judge, Court
No.13, Moradabad, who framed the
charge against the accused persons, under
Sections 452, 307, 302/34 I.P.C and 27
Arms Act. The accused-appellants denied
the charge and claimed for trial.

13. Prosecution, to prove its case,
has produced ten witnesses.

PW-1
Mohammad
Aliinformant and eye witness. PW-2 S.I.
T.R. Kothari prepared the inquest memo.
PW-3 Constable Virendra Kumar is a
formal witness. PW-4 Dhoomi is a
witness of fact. PW-5 Dr. Madan Mohan
conducted autopsy on the body of the
deceased-Farzand Ali and Smt. Bano
Begum. PW-6 Arif is a witness of fact.
PW-7 Dr. V.N. Saxena conducted medical
examination of the injured-Raees Ahmad.
PW-8 Dharam Singh is Investigating
Officer. PW-9 Veer Pal Singh, scribe of
chik & G.D. and PW-10 Dr. Kishor
Kumar,
conducted
postmortem
of
deceased Raees.
172 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The accused-appellants were
examined under Section 313 Cr.P.C in
which they stated that they have been
implicated falsely in the case. In defence
accused persons have produced Abdul
Aziz (DW-1) scribe of the written report
(Ex.Ka-1).

15. Learned Additional Sessions
Judge, Court No.13, Moradabad, after
hearing the learned Additional District
Government Counsel (Criminal), learned
counsel for the accused-appellants and
perusing the material available on record,
passed the impugned judgment and order.
Hence, the instant appeal.

16. Learned counsel for the
appellants submits that there is no motive
for the appellants to commit the offence.
He also submits that PW-4 Dhoomi, who
is brother of the deceased Farzand and
Raees, has stated that he does labour work
residing in village Ravana and take care
of livelihood of his wife and children, so
he cannot be an eye-witness of the
incident.
He
further
submits
that
according to PW-1 Mohammad Ali, 4-5
fires were made while PW-4 Dhoomi has
stated that near about 20-25 fires were
made. Thus, there is a contradiction in the
statement of the prosecution witnesses
regarding the fires made at the time of
incident, which creates doubt in the
prosecution case. He also submits that the
scribe of the written report Abdul Aziz
has stated that he had written the report
Ext.Ka-1 at 9:00 A.M. in police station
Vilari on dictation of daroga and not on
dictation of informant P.W.1 Mohammad
Ali and before him thumb impression of
no one was obtained on the written report
by the S.I. Hence, written report is not
proved
and
creates
doubt
on
the
prosecution case. Lastly, he submits that
PW-4 Dhoomi has stated that miscreants
were threatening them not to come near
otherwise they will be killed and he has
also stated that it is not that miscreants
took away ornaments snatching the same
from the ladies. If accused appellants
were known to the witness then in place
of stating miscreants he should have taken
the name of the accused appellants.
Actually, the incident was not caused by
the appellants. It was an incident of loot
and due to enmity, the accused appellants
have been implicated falsely in the case.
From the evidence produced by the
prosecution, charges are not proved so the
judgment and order is liable to set aside
and the accused appellants are entitled to
be acquitted.

17. On the other hand, learned
A.G.A. for the State submits that from the
place of incidence, concerned police
station is at a distance of 10 kilometers
and regarding the incident of 26/27-61994, at about 02:30 a.m., prompt FIR
naming the accused appellants has been
lodged on 27.06.1994, at 5:05 a.m. By
fire, stabbing by knife and beating by
handle and barrel of country-made pistol
incident has been caused by the appellants
which has been witnessed by the
informant PW-1 Mohammad Ali, PW-4
Dhoomi and PW-6 Arif in the light of
torch. During investigation, the torch was
taken into possession by the Investigating
Officer, a memo was prepared and
returned the same to the informant which
was produced before the court by the
informant-Mohammad Ali. In the injury
report and postmortem report firearm and
knife injuries have been found to the
deceased persons which corroborate the
ocular version. It is the prosecution case
that accused appellants were bearing
enmity on account of progress of the
2 All. Asgar Khan & Ors. Vs State of U.P.
173
family of informant, accused appellants
have admitted enmity in their statements
under Section 313 Cr.P.C. The evidence
of PW-1 Mohammad Ali, PW-4 Dhoomi
and PW-6 Arif are consistent as well as
corroborated by the medical evidence.
Charges against the accused appellants
were proved fully from the evidences
adduced by the prosecution and the trial
court has rightly convicted and sentenced
the accused appellants in which no
interference is required by the Court and
appeal is liable to be dismissed.

18. At the out set, it would be
pertinent to consider whether written
report Ext.Ka-1 was written on dictation
of informant P.W.1 Mohammad Ali or on
dictation of daroga, as stated by D.W.1
Abdul Aziz. Informant P.W.1 Mohammad
Ali in his examination-in-chief has stated
that he got scribed the report by Abdul
Aziz and Abdul Aziz wrote what he had
dictated to him. Thereafter, he read over
the report to him and on hearing he put
his thumb impression on it. He proved the
written report as Ext.Ka-1. Defence has
not put any question in this regard from
P.W.1 Mohammad Ali. Thus, statement
of P.W.1 Mohammad Ali regarding
scribing the written report by Abdul Aziz
is uncontroverted and there is no reason
not to believe on it. On the other hand
D.W.1 Abdul Aziz has stated that Ext.Ka1 on the record is in his hand writing. He
scribed this document at 9:00 A.M. at P.S.
Vilari on the dictation of darogaji. P.W.9
H.C. Veer Pal Singh has stated that on
27.06.1994, he was posted at police
station Vilari as Head Moharrir and he
had prepared chik F.I.R. Ext.Ka-16 and
G.D. Ext.Ka-19 in his hand writing and
signature. He has denied in crossexamination that the report which he
states to scribe was not scribed at the time
and it was scribed anti time. As per chik
F.I.R. Ext.Ka-16, it was scribed on
27.06.1994 at 5:05 A.M. From crossexamination of P.W.9 Veer Pal Singh by
defence, nothing has been elicited, so that
any adverse inference about scribing of
F.I.R. and G.D. at 5.05 A.M. on
27.06.1994 can be drawn. In crossexamination P.W.1 Mohammad Ali has
stated that he reached to the police station
in the night at 3:30 to 4:00 A.M., when he
reached the police station at that time
there was some darkness. He has also
stated that he proceeded to the police
station from the house at about 3:00 A.M.
Mohammad Ali is a rustic witness.

19. In State of U.P. vs. Krishna
Master and others (2010) 12 SCC (324),
the Hon'ble Supreme Court has held that
"the basic principle of appreciation of
evidence of a rustic witness who is not
educated and comes from a poor strata of
society is that the evidence of such a
witness should be appreciated as a whole.
The rustic witness as compared to an
educated witness is not expected to
remember every small detail of the
incident and the manner in which the
incident had happened more particularly
when his evidence is recorded after a
lapse of time. Further, a witness is bound
to face shock of the untimely death of his
near relative(s). Therefore, the court must
keep in mind all these relevant factors
while appreciating evidence of a rustic
witness."

20. The incident has occurred on
26/27.06.1994, his statement has been
recorded on 27.07.1999 near about after
lapse of five years. Considering him to be
a rustic witness, his statement has been
recorded on 27.7.1999 i.e. after a lapse of
five years of the incident. His statement
174 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding reaching police station at 3:30
to 4:00 A.M. for lodging first information
report, in view of the observation of
Hon'ble Supreme Court in State of U.P.
vs. Krishna Master and others (2010) 12
SCC (324) (supra), corroborates the
timing of F.I.R. and G.D. prepared at 5:05
A.M. on 27.06.1994. Thus, with regard to
registration of F.I.R. at 5:05 A.M. on
27.06.1994,
prosecution
evidence
of
P.W.1 Mohammad Ali and P.W.9 Head
Moharrir Veer Pal Singh is consistent,
corroborative and reliable.

In view of the above, the
statement of D.W.1 Abdul Aziz does not
appear convincing that he had scribed the
written report Ext.Ka.1 at 9:00 A.M. in
police station Vilari on dictation of
daroga.
Accordingly,
we
find
no
substance in the contention of learned
counsel for the appellant in this regard.

21. In Ex.ka-1 proved by informant
PW-1 Mohammad Ali, it is mentioned
that in the intervening night of 26/27-61994, informant's younger brothers Raees
and Dhoomi, mother, father, ladies and
children were sleeping in the courtyard.
As per FIR (Ex.Ka-16), proved by PW-9
HC Veer Pal Singh, distance of the police
station concerned from the place of
incident is 10 kilometers. The incident has
taken place at 02:30 a.m. in the
intervening night of 26/27-6-1994 and in
the incident Farzand Ali and Smt. Bano
Begam have died at the spot while Raees
Ahmad became injured. Information of
the incident was given to the police
station on 27.06.1994 at 05:05 a.m. which
in the facts and circumstances appears
prompt one, without consultation and
deliberation.
The
lodging
of
first
information report has been supported by
the informant PW-1 Mohammad Ali, PW6 Arif and PW-9 HC Veer Pal Singh
through their testimony and nothing has
been elicited from their cross-examination
by the defence so that regarding giving it
by informant PW-1 Mohammad Ali at the
police station and its date and time any
adverse inference can be drawn.

22. Considering the fact that FIR
(Ex.Ka-16) has been lodged promptly and
in the FIR it is mentioned that PW-4
Dhoomi was sleeping in the courtyard
along
with
other
family
members,
informant PW-1 Mohammad Ali and PW6 Arif have supported the FIR version
through
their
testimony,
therefore,
presence of PW-4 Dhoomi, at the time of
incident, cannot be doubted on the basis
of his statement that he does labour work
in village Ravana and takes care of
livelihood of his wife and children.
Accordingly, we do not find substance in
the contention of learned counsel for the
appellants in this regard.

23. As per FIR and testimony of
informant PW-1 Mohammad Ali, it
appears that four shots were fired by the
accused appellants. PW-4 Dhoomi in his
cross-examination has stated that the
miscreants were present in his house for
about half an hour he did not count that
how many shots were fired. He further
stated that near about 20-25 shots were
fired. The incident has taken place on
26/27-6-1994 and his statement was
recorded near about after six years on
28.11.2000. The witness is also a rustic
witness.

24. In the incident, witnessDhoomi's brother Farzand and sister-inlaw Smt. Bano Begam (bhabi) have died
and his other brother Raees Ahmad
became injured. Witness-Dhoomi, who is
2 All. Asgar Khan & Ors. Vs State of U.P.
175
a rustic witness, his statement was
recorded after a lapse of six years of the
incident in which prior to the statement
"near about 20-25 fires were made" he has
stated that he did not count how many
shots were fired. Considering his whole
statement as held by Hon'ble Supreme
Court in the case of State of U.P. Vs.
Krishna Master and others (supra), in our
opinion, on the basis of statement of PW1 Mohammad Ali that 4-5 shots were
fired and according to statement of PW-4
Dhoomi that near about 20-25 shots were
fired that too qualified by statement that
he did not count how many shots were
fired, prosecution case cannot be doubted.
Accordingly, we do not find substance in
the contention of learned counsel for the
appellants that there is contradiction in the
prosecution witness regarding number of
shots fired, which creates doubt in the
prosecution case.

25. PW-4 Dhoomi in his crossexamination has stated that miscreants
were threatening not to come here
otherwise he will be killed. He has further
stated that it is not that the miscreants
took away the ornaments by snatching
from the ladies. In the examination-inchief, the witness has specifically stated
that he heard scream of his brother
Farzand near about 02:00 a.m. to 02:30
a.m. and on the scream of his brother,
informant-Mohammad Ali flashed the
torch towards the cot of his brother
Farzand and he identified very well in the
light of torch Asgar, Guddu Bara and
Khursheed near the cot of Farzand and in
cross-examination too he has described
the circumstances regarding the incident.
His statement under Section 161 Cr.P.C.
has not been confronted with regard to
being made first time in the court. Apart
from it, it is the tact of counsel putting
question to a witness and reply given by
the witness is recorded accordingly. Thus,
mere use of the word miscreants in the
cross-examination, in place of name of
assailants
by
PW-4
Dhoomi,
the
prosecution case cannot be doubted.
Accordingly, we also find no force in the
contention of learned counsel for the
appellants that it was an incident of loot
and due to enmity they have been
implicated falsely in the case.

26. According to the FIR, on
interruption of informant, accused Guddu
Bara fired upon Farzand by country-made
pistol and when informant and others
exhorted the accused appellants then
accused Khursheed pointing countrymade pistol fired at them with intention to
kill and they also by jumping from the
roof surrounded Raees on the cot and
caused injuries to him by firing and
beating by handle and barrel of the
country-made pistol. On interruption of
wife of the informant, accused Khursheed
also fired at his wife Bano Begam.

27. We have gone through the whole
evidence of PW-1 Mohammad Ali and
find that on the point of sleeping of
informant Mohammad Ali in the night of
26/27-06-1994 along with brother Arif on
the roof of Komil Dhobi, brother Farzand
on the roof of his house at the door,
brothers Raees and Dhoomi, mother,
father,
ladies
and
children
in
the
courtyard, waking up on hearing scream
of brother Farzand at about 02:30 a.m. in
the night, flashing torch light by him
towards the cot of Farzand and identifying
his neighbour Guddu Bara, Asgar Khan
and their relative Khursheed near the cot
of Farzand, on his interruption inflicting
knife injury by Asgar Khan in his
stomach and firing shot by Guddu Bara
176 INDIAN LAW REPORTS ALLAHABAD SERIES
hitting on his head, on exhortation by
them firing shot at them by Khursheed
and due to fear hiding himself and Arif in
the ruined building of Bhure Khan and
Dhoomi in the street crossing the wall,
surrounding Raees on the cot jumping
from the roof, and causing him injuries by
firing, handle and barrel of the countrymade pistol, on interruption of Smt. Bano
kicking on her face by Khursheed even
then on making noise firing shot at her by
Khursheed and after going accused
finding brother Farzand and Smt. Bano
Begum dead and condition of Raees being
critical is intact, credible, consistent and
reliable.

28. We have also gone through the
statements of PW-4 Dhoomi and PW-6
Arif and find that on material point like
sleeping of Mohammad Ali and Arif on
the roof of Komil Dhobi, Farzand on the
roof of house at the door, Arif, Raees,
mother, father, ladies and children in the
courtyard, hearing scream of Farzand at
2:00 to 02:30 a.m., flashing light of torch
by Mohammad Ali towards the cot of
Farzand and identifying Asgar, Guddu
Bara and Khursheed standing nearby the
cot of Farzand, on interruption of
Mohammad Ali inflicting knife injury in
the stomach of Farzand by Asgar and
firearm injury by Guddu Bara, causing
injury to Raees by firing, handle and
barrel of country-made pistol, firearm
injury to Smt. Bano by Guddu, thus,
evidences of PW-1 Mohammad Ali, PW4 Dhoomi and PW-6 Arif are consistent,
corroborated to each other, convincing
and reliable.

29. In Rajesh Govind Jagesha vs.
State of Maharashtra (1999) 8 SCC 428,
Hon'ble Supreme Court has held that
motive in criminal case based upon ocular
testimony of witnesses is not at all
relevant, in Rajagopal vs. Muthupandi
alias Thavakkalai and others (2017) 11
SCC 120, Hon'ble Supreme Court has
held that motive is not crucial if there is
direct evidence and in Banna Reddy and
others vs. State of Karnataka (2018) 5
SCC 790, Hon'ble Supreme Court has
held that motive becomes irrelevant in the
presence of direct evidences.

30. The instant case is based on
direct evidence as discussed above, we
have found the evidences of PW-1
Mohammad Ali, PW-4 Dhoomi and PW-6
Arif consistent, corroborated to each
other, convincing and reliable, so, in view
of the opinion of Hon'ble Supreme Court,
in view of the above mentioned cases,
motive is not relevant in the instant case.
Apart from it, in the written report (Ex.ka1), it is mentioned that the accused
appellants
were
bearing
enmity
on
account of progress of the informant's
family and they were bent upon for
altercation. Informant used to avoid the
altercation but they never relented before
the accused appellants. This fact has been
corroborated by the testimony of the
informant PW-1 Mohammad Ali, PW-4
Dhoomi and PW-6 Arif, so, also we do
not find substance in the contention of
learned counsel for the accused appellants
that there was no motive for them to
commit the offence.

31. As per Ex.Ka-1 and witnesses
PW-1 Mohammad Ali, PW-4 Dhoomi and
PW-6 Arif incident was witnessed in the
flash light of torch. The torch was also
taken into possession. Recovery memo of
the torch (Ex.ka-2) was prepared and
proved by Investigating Officer-Dharam
Pal Singh (P.W-8) as well as PW-1
Mohammad Ali. All the witnesses of fact
2 All. Asgar Khan & Ors. Vs State of U.P.
177
i.e. PW-1 Mohammad Ali, PW-4 Dhoomi
and PW-6 Arif have deposed that in the
flash light of torch they have very well
identified the accused, namely, Asgar
Khan, Guddu Bara Khan and Khursheed.

32. PW-8 Dharam Singh has proved
spot map (Ex.Ka-17), in which place-A has
been shown which is on the roof at the
door where the dead body of the deceased
Farzand Ali was found lying, at place-B in
the courtyard, dead body of Smt. Bano
Begum was found and at place-C in the
courtyard sleeping of deceased Raees has
been shown. P.W-8 Dharam Singh has
stated
that
he
had
instructed
S.I.
Muneshwar Singh to conduct inquest
memo of deceased Farzand Ali and Smt.
Bano Begum. He has also stated that blood
stained and plain earth related to deceased
Farzand and Smt. Bano Begum and injured
Raees were taken into possession by S.I.
Muneshwar Singh and three separate
memos were prepared by him. According
to the Ex.Ka-3 blood stained and plain
earth relating to deceased Farzand Ali in
presence of witnesses were taken into
possession from the roof of the house at
the door and as per Ex-Ka-4 & 5, blood
stained and plain earth related to injured
Raees and deceased Smt. Bano Begum
were taken from the courtyard which
corroborate the prosecution version that at
the time of incident deceased Farzand Ali
was sleeping on the roof of the house at the
door and deceased Raees and Smt. Bano
begum were in the courtyard of the house.

33. According to PW-7 Dr. V.N.
Saxena, who has proved the injury report of
Raees as Ex.Ka-15, one incised wound,
three lacerated wounds, one firearm wound
and one traumatic swelling were found on
the person of Raees, at the time of
examination, on 27.06.1994 at 07:30 a.m.
According to him, the injuries were possible
at 02:30 a.m. in the night of 26/27-06-1994
by firearm, handle and barrel of the countrymade pistol. PW-5 Dr. Madan Mohan has
conducted postmortem of deceased Farzand
Ali and Smt. Bano Begum, prepared
postmortem
report
Ex.Ka-6
&
7,
respectively, and proved it, according to
which, one firearm injury, two incised
wounds and an abrasion injury were found
on the person of Farzand. A firearm injury
and a lacerated wound on the person of
Smt. Bano Begum were found, in his
opinion, firearm injury to Smt. Bano begum
and firearm and knife injury to Farzand are
possible. He has also opined that the injuries
are possible at 02:30 a.m. in the night of
26/27-06-1994. Injury report of Raees and
postmortem reports of Farzand and Smt.
Bano
Begum
corroborate
prosecution
version regarding manner of assault and
time of incident. Thus, ocular version is also
corroborated by the medical report.

34. Considering the evidence led by
the prosecution and above discussion, we
do not find substance in the contention of
learned counsel for the appellants that it
was an incident of loot and due to enmity
accused appellants have been implicated
falsely in the case.

35.

Thus,
upon
a
whole
consideration of the facts of the case,
attending circumstances and the evidence
on record, we do not find that the learned
trial Judge committed any illegality or
infirmity in convicting and sentencing the
appellants for the offence punishable
under Sections 452 and 302/34 IPC and
awarding sentence of imprisonment for
life to them.

36. This appeal lacks merit and is,
accordingly, dismissed.
178 INDIAN LAW REPORTS ALLAHABAD SERIES

37. The appellants are on bail. Chief
Judicial
Magistrate,
Moradabad,
is
directed to take them into custody and
send them to jail for serving out their
remaining sentence.
----------

(2019)10ILR A 178

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 826 of 1991

Rajveer Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ravindra Singh, Sri Dinesh Kumar
Bhaskar, Sri Pawan Singh.

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 - Section
147, 148 , Section 307 read with Section
149 - criminal appeal under Section 374
of Code of Criminal Procedure, 1973 -
Delay in lodging F.I.R - Section 313
Cr.P.C - appellants convicted under
Section 307 read with Section 149 and
148
I.P.C.
-
entitles
the
surviving
appellant the benefit of doubt - entitled
to be acquitted of all the charges levelled
against him.

The inordinate delay in lodging the F.I.R. as well
as delay in medical examination; material
contradiction between the statement of injured
eye witnesses made during investigation and
statement made during trial; reasonable doubt
regarding sharing of common object by appellant
as a member of unlawful assembly or having
knowledge of any such common object, have
created serious doubts in the prosecution case as
against the sole surviving appellant which entitles
the surviving appellant the benefit of doubt -
entitled to be acquitted of all the charges levelled
against him. (Para 28,31 & 40)

(B) Indian Penal Code, 1860 - applicability
of Section 149 IPC - Mere presence of any
person at the place of occurrence like a
mute spectator or as witness would not
create any liability upon him with aid of
section 149 IPC unless it is proved or could
be logically inferred from the facts of the
case that he was part of that unlawful
assembly and had knowledge that such an
act would be committed or is likely to be
committed in prosecution of the common
object of the unlawful assembly. (Para 32)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Nagesar Vs St. of CG. (2014) CrLJ 2948

2. Thulia Kali Vs St. of T.N. AIR 1973 SC 501

3. Baladin & ors. Vs St. of U.P. AIR 1956 SC
181

4. Rajendra Shantaram Todankar Vs St. of
Mah. & ors. 2003 SCC (Cri) 506

5. Dani Singh Vs St. of Bihar (2004) 13 SCC
203

6. Kuldip Yadav Vs St. of Bihar (2011) 5 SCC
324

7. Nagesar Vs St. of CG. (2014) Cr.LJ. 2948
(Delivered by Hon'ble Virendra Kumar
Srivastava, J.)

1. The instant appeal has been filed
under Section 374 of Code of Criminal
Procedure, 1973 (hereinafter referred to as
"Code") against the judgment and order