# Asif Ali v. State Of U.P

- **Citation:** (2025) 5 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-09
- **Case number:** Criminal Appeal No. 5215 of 2003
- **Bench:** Siddhartha Varma, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/asif-ali-v-state-of-u-p-54599
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 307 - Code
of Criminal Procedure,1973 - Sections 161
& 164 - Murder - PW-2, injured eyewitness was neither injured nor eyewitness - Injuries on right side of face of
PW-2 could never occurred in incident,
enormity was evident from F.I.R. itself -
When four bullets fired from front and
four of them exited from back, logical
conclusion that PW-2 should have injured
by one of bullets which exited from body
of deceased - PW-2 throughout changing
his version - He St.d immediately after
incident he jumped off motorcycle, ran
through sugar cane field, then reached
police station along with PW-1 - Later St.d
F.I.R was not lodged then he went to
maternal uncle of deceased, accompanied
him to police station where F.I.R lodged -
Further St.d he had seen body being
thrown
from
bridge
into
river
-
Improbable story, as he only heard about
manner in which body disposed of but
never seen actual disposal of dead-body,
680 INDIAN LAW REPORTS ALLAHABAD SERIES
disappeared from scene immediately after
incident started off to take place - F.I.R
lodged
much
later
as
mentioned
in
St.ment of PW-1 and PW-2 wherein they
St.d after good amount of conference
between police personnel, first informant
and elders of village, F.I.R lodged - Other
witnesses never come to witness box -
When evidence on basis of which four
accused persons acquitted, it could not
have been possible to convict other two
on basis of same evidence - Entire story
about
assailants
coming
on
jeep
disbelieved. (Para 29)

Appeal allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,926 of 60,467. This is a partial read: ask again with offset=39926 for what follows._

5 All. Asif Ali Vs. State of U.P.
679
then he informed to the police before the
witness that the clothes as well as the dead
body of the deceased could be recovered.
The case of the accused Kalloo is
distinguished from that of accused Pradeep
and Pankaj as the appellant Kalloo who
enticed away/kidnapped the minor and the
other co-accused were with him at the time
of recovery of the dead body and clothes of
the deceased. The case of the appellant was
beyond
reasonable
doubt
hence
the
appellant was convicted only.

47.
From
the
depositions
of
prosecution witness, the post conduct of the
appellant
and
on
his
pointing
out
subsequent recovery of the dead body and
clothes,
it
is
clear
that
chain
of
circumstantial
evidence
is
complete.
Therefore, we find no infirmity in the
finding returned by the Trial Court. The
conviction of the accused appellant Kalloo
by the learned trial court is in consonance
with the evidence and there is no need to
interfere with the judgment of the trial
court.

48. In view of the above, we concur
with the findings of the learned trial court
in holding the accused-appellant guilty.

49. The appeal being devoid of merits
is dismissed. The impugned judgment of
conviction and order of sentence are
confirmed. Since the accused appellant is
absconding, his bail bonds are cancelled
and the sureties are discharged. He shall be
taken into custody forthwith to serve the
sentence. The Chief Judicial Magistrate and
Senior
Superintendent
of
Police/Superintendent
of
Police
shall
ensure the arrest of the accused-appellant.

50. Trial court record be sent to the
concerned Court forthwith.

51. Let this order be communicated to
all
concerned
by
the
Registrar
(Compliance) for compliance.
----------
(2025) 5 ILRA 679
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 09.05.2025

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 5215 of 2003

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

Counsel for the Appellant:
Araf Khan

Counsel for the Respondent:
Govt. Advocate, Satish Trivedi

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 307 - Code
of Criminal Procedure,1973 - Sections 161
& 164 - Murder - PW-2, injured eyewitness was neither injured nor eyewitness - Injuries on right side of face of
PW-2 could never occurred in incident,
enormity was evident from F.I.R. itself -
When four bullets fired from front and
four of them exited from back, logical
conclusion that PW-2 should have injured
by one of bullets which exited from body
of deceased - PW-2 throughout changing
his version - He St.d immediately after
incident he jumped off motorcycle, ran
through sugar cane field, then reached
police station along with PW-1 - Later St.d
F.I.R was not lodged then he went to
maternal uncle of deceased, accompanied
him to police station where F.I.R lodged -
Further St.d he had seen body being
thrown
from
bridge
into
river
-
Improbable story, as he only heard about
manner in which body disposed of but
never seen actual disposal of dead-body,
680 INDIAN LAW REPORTS ALLAHABAD SERIES
disappeared from scene immediately after
incident started off to take place - F.I.R
lodged
much
later
as
mentioned
in
St.ment of PW-1 and PW-2 wherein they
St.d after good amount of conference
between police personnel, first informant
and elders of village, F.I.R lodged - Other
witnesses never come to witness box -
When evidence on basis of which four
accused persons acquitted, it could not
have been possible to convict other two
on basis of same evidence - Entire story
about
assailants
coming
on
jeep
disbelieved. (Para 29)

Appeal allowed. (E-13)

List of Cases cited:

1. Vadivelu Thevar Vs The St. of Madras
reported in AIR 1957 SC 614, (Para 11)

2. Mahendra Singh & ors. Vs St. of M.P. reported
in (2022) 7 SCC 157

3. Rajesh Yadav & anr. Vs St. of U.P. reported in
(2022) 12 SCC 200

4. Balram Vs St. of M.P. reported in (2023) SCC
Online SC 1468, (Paras 15 to 18)

5. Jodhraj & ors. Vs St. of Raj. reported in
(2020) 14 SCC 205, (Paras 8, 9)

6. Basaveni Ravi & anr. Vs St. of Andhra Pradesh
reported in (2012) 12 SCC 466, (Para 9)

7. Than Singh Vs St. of U.P. reported in (2020)
112 ACC 717, (Paras 30 to 34)

8. Javed Shaukat Ali Qureshi Vs St. of Guj.
reported in (2023) 9 SCC 164, (Para 15)
(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ms. Nand Prabha Shukla, J.).

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Araf Khan,
learned counsel appearing for the appellant;
Sri
Amit
Sinha,
learned
Additional
Government Advocate for the State and Sri
Satish Trivedi, learned Senior Advocate
assisted by Sri Ajay Kumar Pandey, learned
counsel appearing for the informant.

2. When one Ashraf was killed on
24.09.1997 allegedly at 09:00 AM, a first
information report was got lodged on
24.09.1997 by his maternal uncle, Afzal, at
Police
Station
-
Simbhawali,
Gadhmukhteshwar, District - Ghaziabad.

3. As per the first information report, the
incident had taken place at 09:00 AM and the
first information report was lodged at 10:15
AM. Upon the lodging of the first
information report, investigation commenced
and thereafter the accused persons named in
the first information report namely Kamal
son of Jamaluddin, Kamil and Khursheed
sons of Bhure, Naufeel son of Shakur who
allegedly were on a jeep and also Afsar and
Asif sons of Manjoor who were made
accused in the case and were on a motorcycle
surrendered on different dates and they were
arrested. When the investigation commenced,
there were certain statements, of the eyewitnesses whose names were mentioned in
the first information report, recorded under
Section 161 of the Cr.P.C. Statements of
certain witnesses were also recorded under
Section 164 of Cr.P.C. before the relevant
magistrate. During investigation the police on
24.09.1997 itself had recovered four empty
cartridges of 315 bore which were found on
the spot. The recovery memo was numbered
as Exhibit Ka-6. Initially however when all
the accused persons were not surrendering
then by coercive measures the police had
searched them out and arrested them.

4. It is the case of the prosecution that
while the deceased, Ashraf, who was
accompanied by the PW-1, Muslim, was
going on a motorcycle in the village
5 All. Asif Ali Vs. State of U.P.
681
Simbhawali then a jeep carrying four
persons namely Kamal, Kamil, Khursheed
and Naufeel came in front of the two,
namely
Ashraf
and
PW-2,
Muslim.
Because of the fact that their way was
intercepted by the jeep, the motorcycle
slowed down and in the meantime another
motorcycle carrying Ashraf and Asif came
from behind and thereafter the six accused
persons who were also the assailants and
were carrying country made pistols fired
upon the deceased, Ashraf. It is the further
case of the prosecution that thereafter PW2, Muslim, jumped from the motorcycle
and ran to inform the maternal uncle of
Ashraf namely one Afzal and the latter
thereafter had gone to the police station to
get the first information report lodged.
Upon the matter having been reported, the
police had got the post-mortem of the
deceased done on 25.09.1997. After the
investigation had come to an end, the
police had submitted its charge-sheet.

5.
Upon
the
completion
of
the
investigation when the chargesheet was
submitted by the police, the Court of 13th
Additional Sessions Judge, Ghaziabad on
20.01.1999 framed charges for the offences
under Section 147, 148 and 307 of I.P.C.
against the accused persons namely Kamil,
Afsar Ali, Naufeel, Asif Ali and Khursheed.
Alongwith those sections charges were also
framed under Sections 302 read with section
149 of I.P.C. Charges vis-a-vis the accused,
Kamal were framed separately. When the
accused denied the charges, trial commenced.

6. From the side of the prosecution as
many as eleven prosecution witnesses were
produced. For the assistance of the court,
one court witness Vijendra Singh, the
Investigating Officer of the CBCID, was
produced and from the side of the defence
five defence witnesses were also produced.

7 PW-1, Afzal, is the maternal uncle
of the deceased Ashraf. He, in his
examination-in-chief, had stated that the
incident had taken place on 24.09.1997 and
had further stated that his nephew (Bhanja)
Ashraf, the deceased, was resident of
village Jisauri, Police Station - Mundali,
District - Meerut but he had for the most of
the time stayed with PW-1. He had stated
that on 24.09.1997 he was with him and
that in the morning alongwith his cousin,
Muslim son of Munaf, he had gone out on
his Yamaha motorcycle which had a
number plate being number DBX 4218.
They were going towards the village Saina.
In between, at the Simbhawali Mill Haraura
Road near the Vinod Cinema Hall, Kamal
son of Jamaluddin, Kamil and Khursheed
sons of Bhure and Naufeel son of Shakur
came on their jeep and intercepted the way
of the deceased, Ashraf. He had stated
further in his examination-in-chief that all
four of them were having country made
pistols in their hands. He had further stated
that at that very moment Afsar and Asif
sons of Manjoor also came on their
motorcycle with country made pistols in
their hands and that all the other accused
persons thereafter with an intention to kill
the deceased, Ashraf, fired from their
country made pistols and because of the
bullet injuries, Ashraf died on the spot and
fell down from the motorcycle. The pillion
rider, Muslim, was also hurt by a bullet
fired upon Ashraf. However, Muslim
jumped from the motorcycle and ran away.
He had stated that the incident had
happened at 09:00 AM and that the accused
persons lifted the dead-body of the
deceased and took the same on the very
motorcycle of the deceased. While the body
was being carried the jeep of the accused
persons followed the motorcycle and
thereafter in the middle of the Ganga Nahar
from the bridge the dead-body was thrown.
682 INDIAN LAW REPORTS ALLAHABAD SERIES
He had further stated that at the relevant
point of time PW-3 Gulam Rabbani son of
Ali Hasan resident of Muradpur and Irshad
son of Mahfuz resident of village Saina
were also there on the spot and they had
witnessed the entire incident. He had
further stated that the entire incident was
informed to him by the injured Muslim,
PW-2. He had also stated that the first
information report was scribed by Gufran
Ali on the dictation of the PW-1. He had
stated that there was enmity between the
deceased and Kamal and therefore he was
killed. Upon being cross-examined from
the side of Kamal, the PW-1 had stated that
even though the Inspector from the CID
had approached him, he had not recorded
any evidence of his. He had thereafter
stated that Muslim, PW-2, had taken him
from his house to get the first information
report lodged. He had thereafter stated that
Muslim had reached his house in between
09:00 to 09:15 AM and when he had come
to the house of the first informant he was
also accompanied by another person called
Muzaffar and thereafter he had stated that
on
that
very
motorcycle
he
had
accompanied Muslim to the police station.
Upon further cross-examination he had
stated that he was educated and had passed
High-School Examination but because he
was very tense on account of the murder he
had
himself
not
written
the
first
information report but had got it scribed on
his dictation. When he had gone to the
police station he was accompanied by
Muslim and Gufran. He had stated that
when he had got the information about the
incident he had reached the police station
and had not gone to the place of incident.
He had further stated that Muslim had also
injuries on his body of the bullets which
were fired. He had in fact stated that there
was one bullet which had actually struck
him. Thereafter he had stated that the
medical examination of Muslim was done
on the same day at 03:00 PM. There also he
had
accompanied
him.
The
distance
between
the
police
station
and
the
Government Hospital was around 200
yards and the distance could be covered
within five minutes if a person walked to
the Government Hospital from the police
station. He had in his cross-examination
stated that Muslim had not informed him
about the number of the jeep. He had only
informed that the colour of the jeep was
blue. When he had reached the place of
incident, the eye-witnesses Rabbani and
Irshad
were
there
from
before.
He
thereafter gave the reason for the incident
and stated that Ashraf and Kamal were
inimical to each other as Ashraf was
staying with the first informant and Kamal
and the first informant never enjoyed a very
good relationship. He had also stated that
Kamal had on an earlier occasion also fired
on the first informant. However, fortunately
no one had got injured. He had stated that
the panchayatnama was done in his
presence. At that time apart from him Irfan,
Jay Prakash Tyagi, Momin Pradhan, Islam
were
also
present
and
that
the
panchayatnama was filled at 06:00 PM. He
had thereafter stated that the motorcycle on
which the deceased had gone was not
found. Where it had gone he did not know.
Upon a question being asked as to whether
Ashraf was a criminal, he had stated that
two or three cases were being tried against
him and amongst them one was also of
murder. The cross-examinations as were
done by the other accused persons were
virtually on the same lines.

8 PW-2, Muslim, the injured eyewitness had in his examination-in-chief
again narrated the entire incident as was
reported in the first information report. In
the cross-examination he had stated that
5 All. Asif Ali Vs. State of U.P.
683
when the incident had occurred, he had
jumped off the motorcycle and had gone
into the sugar cane field and thereafter he
came out of the sugar cane field and
reached the main road. Upon reaching the
Thana on the main road, he had informed
the Daroga Ji about the incident. Further in
the cross-examination, he was put certain
questions with regard to the statements he
had made before the CBCID. Despite the
fact that in the court he had stated that after
he jumped off from the motorcycle, he had
gone through a sugar cane field and had
reached the main road where the police
station was situate and he had tried to get
the information lodged with regard to the
incident, when a specific question was
asked as to whether before the CBCID he
had stated such a fact, he had denied that he
had stated any of those facts before the
CBCID. Thereafter, in the court when his
cross-examination was continuing, he had
stated that after the incident, he had gone to
the police station and from there he had
gone to his maternal uncle's house. He had
stated that no blood was oozing out of the
injuries which he had sustained. He had
thereafter stated in the cross-examination
that he had asked his uncle to go to the
canal/nahar and thereafter they had straight
away reached the canal/nahar. He had
stated that when they had reached the
canal/nahar they had not found any deadbody. He had thereafter stated that Gulam
Rabbani and Irshad had reached the
canal/nahar earlier in point of time. He had
thereafter stated that the dead-body was
taken out from the canal/nahar at around
02:30 PM. He had thereafter stated that
after the dead-body was taken out, he had
gone to the hospital. He was accompanied
by a police constable when he had gone for
his medical examination. He had thereafter
stated that the Police Inspector had asked
the maternal uncle, Afzal, to get the report
lodged. He had thereafter also stated that
the maternal uncle and certain other elderly
persons alongwith the Police Inspector had
a due consultation with each other and only
thereafter they had got the first information
report lodged. He had thereafter stated that
by the time the first information report was
lodged he had got his medical examination
done. He had also stated in the court that in
between the first informant, he himself and
the accused persons there was old enmity
and there were many cases going on
between them. He had already stated that
prior to the incident on 14.11.1994, the
accused Asif, his father Manjur and the
accused Naufeel's nephew Munkad and
Rakib were attacked with the purpose of
killing them and in that case the father of
the PW-2, his uncles Abrar, Munkad,
Irshad, Ashraf and Anees were made
accused. He had thereafter stated that on
19.01.1998 the father of the accused
Khursheed and Kamil whose name was
Bhure
was
also
murdered
and
on
19.01.1998 itself in the same incident the
father of Naufeel whose name was Shakur
was injured and that criminal cases vis-avis those incidents were going on. He had
also informed about the house trespass case
which was going on against his own father
and his uncle etc. He had also stated that on
06.12.1998 Dr. Rajendra Harijan was
murdered and in that case he himself and
Naseem were made accused. Again in the
cross-examination which was done on
11.10.2000 the PW-2 had stated that before
the first information report was lodged
there was a full fledged conference
between Afzal, the first informant, and the
other elders of the village and that the PW2 was also present at the time of the
consultation which was going on and only
thereafter the first information report was
got lodged. He had stated that after he had
jumped off from the motorcycle and had
684 INDIAN LAW REPORTS ALLAHABAD SERIES
gone to the sugar cane field, he had hidden
himself behind the sugar cane crop and he
had seen the accused persons from there.
He had stated that police had taken his
statement after around 10-15 days of the
incident. On 03.11.2000, the PW-2 was
again recalled for giving his statement after
he had been examined by the prosecution,
the accused persons also cross-examined
him. When he was recalled, he was
confronted with certain statements, he had
got recorded before CBCID and he had
denied having made those statements
before the CBCID. He, throughout in his
cross-examination after he was recalled,
had stated that he had mentioned the name
of Kamal as an accused. This prosecution
witness upon being confronted that he had
been giving contradictory statements, had
stated that at this times he was speaking the
truth and on other occasion he was lieing as
he was from time to time being threatened
by the accused persons. He had stated that
even before the CBCID, he had not stated
the correct fact as the CBCID Inspector
was
abusing
him.
He
categorically
thereafter stated that before he had given
his statement on 01.09.2000 the accused
Kamil had threatened him with dire
consequences if he spoke out the truth. He
had thereafter stated again in the crossexamination when he was recalled by the
CBCID Inspector that he had stated that he
was not hit with any bullet but he had been
injured because of the barood.

9 PW-3, Gulam Rabbani, is the other
eye-witness. He had stated that the incident
was of 24.09.1997 and had occurred at
09:00 AM. He had also tried to corroborate
the case as was taken in the first
information report and had stated about the
jeep first coming with the accused Kamal,
Kamil, Khursheed and Naufeel. He further
stated that thereafter the motorcycle came
which carried Afsar and Asif. He had stated
that all the six accused persons had in a
planned manner shot at the deceased,
Ashraf, and that all six accused persons had
country made pistols in their hands. Ashraf
was hit by the bullets and he had fallen
down there itself and had died. He had
stated that PW-2, Muslim, had also been
injured by the bullets. He had thereafter
stated that Afsar had asked Asif to load the
dead-body on the motorcycle of the
deceased and had planned to do away with
the dead-body in the Ganga Nahar. He had
also stated in his examination-in-chief that
he had asked the accused not to dispose of
the dead-body but they had taken the body
on the motorcycle of the deceased and
thereafter had thrown it in the Gang Nahar.
In his cross-examination, he had stated that
he had on the date of incident gone to see
his agricultural fields and thereafter had
gone to the bridge from where the body
was thrown and he had on that date itself
bought some "khal". He, however, stated
that he did not remember as to where and
from which shop he had purchased the
khal. However, he had stated that he had
purchased khal which weighed around 15
kilograms. He had thereafter remained at
his agricultural field and he had returned to
his village thereafter and then he had gone
to the shop to purchase khal at around
02:00 PM and after purchasing khal had
come back at around 03:00 PM. He had
thereafter tried to give an eye-witness
account and stated that he had seen the jeep
and also the motorcycle carrying the
assailants. He had also stated that there
were six fire shots. He had thereafter stated
that he had met Afzal on the bridge from
where the dead-body was allegedly thrown
at around 4:00 to 5:00 PM in the evening.
Thereafter, upon being asked as to what he
had done after purchasing khal, he had
stated that at around 12:00 Noon he had
5 All. Asif Ali Vs. State of U.P.
685
gone to his sugar cane field and there he
was lying down.

10 PW-4, Dr. R.N. Mishra, was the
doctor who had conducted the post-mortem
of the deceased and had stated that there
were four entry wounds and four exit
wounds and he had stated that in the
stomach of the deceased there was 100
grams of undigested food. He had,
however, stated that all the entry wounds
and exit wounds were caused by bullets. He
had also stated that by looking at the deadbody it did not appear that it was taken out
from any water body.

11. PW-5, Vijay Pal Singh, was the
Sub-Inspector under whose guidance the
inquest was conducted.

12. PW-6, Dr. Sunil Kumar Gupta,
was the doctor who had examined the
injuries of the PW-2 and had stated that the
injuries were 2 mm X 1 mm and that they
were many in number and were on the right
side of the cheek and the neck within the
range of 18cm X 8cm.

13. PW-7, K.D. Singh Station Officer,
was the first Investigating Officer.

14. PW-8, Mahendra Pal Singh, was
the second Investigating Officer.

15. PW-9, V.K. Singh, was the third
Investigating Officer. They all got recorded
their statements-in-chief and they were also
cross-examined.

16. PW-10, Yaduraj Singh, was also
one of the Investigating Officer.

17. PW-11, Rajkumar, who was the
chik writer and he had proven the first
information report.

18. The Investigating Officer of the
CBCID, Vijendra Singh, was called as a
court witness and he had categorically
stated that he had taken the statement of the
injured Muslim while he was in jail for
some other crime in which he was involved
in and he had stated that he had definitely
got recorded his statement saying that the
entire incident had occurred because of the
various enmities in the village and that
Afsar, Vasil sons of Irshad Ali and Salim
son of Khursheed had committed the crime.
He had also given the record of the various
statements he had taken of various
witnesses and he had also stated that with
regard to the fact that the jeep, involvement
of which was alleged was in the workshop
from 23.09.1997 to 28.09.1997. Thereafter
from the defence side, five defence
witnesses were produced.

19.
DW-1,
Akhtar
Husain,
had
categorically narrated about the fact as to
how the jeep was being repaired.

20. DW-2, Sri Pal Singh, had also
categorically stated about the fact that there
was only motorcycles which he had seen at
the place of incident.

21. DW-3, Sunil Kumar, had again
stated about the fact that he had also only
seen the motorcycles at the place of
incident.

22. DW-4, Dilawar, had also stated
only about the motorcycle.

23. Similarly, Tareekat, DW-5 had
given his statement in favour of the accused
persons.

24. The accused thereafter had got
their statements recorded under Section 313
686 INDIAN LAW REPORTS ALLAHABAD SERIES
of Cr.P.C. and had denied having been
committed the crime.

25. On the basis of all the evidence
which was led the Additional Sessions
Judge, Court No. 12, Ghaziabad in Session
Trial No. 458 of 1998 had found that Afsar
and Asif had reached the place of incident
on their motorcycle and had committed the
crime, he had acquitted the other accused
persons namely Kamil, Naufeel, Khursheed
and Kamal. Afsar had died during the trial.
When the appellant-Asif was convicted
under Section 302 read with section 201 of
the I.P.C., he had filed the instant Criminal
Appeal.

26. Sri V.P. Srivastava, learned Senior
Advocate assisted by Sri Araf Khan,
learned counsel appearing for the appellant
has submitted as follows:

(i) It was very doubtful that the
PW-2, the injured eye-witness, was at all
present at the place of incident. He has
drawn the attention of the Court to the
report of the medical examination of the
PW-2 and had stated that he had suffered
injuries which were of the size of 2mm X
1mm and that they were within an area of
18cm X 8cm. He has stated that even the
injuries were absolutely not possible on the
right side of the PW-2 who was a pillion
rider. He submits that there were four entry
wounds from the front of the body of the
deceased, Ashraf and all the four bullets
which had entered from the front had come
out from the back and it does not stand to
reason that not even one bullet hit the
pillion rider.

He therefore submitted that it,
therefore, becomes very doubtful that the
PW-2 was at all there on the spot. He
submits that the manner in which the PW-2
was changing his statement on the pretext
that he was being threatened by the accused
persons also shows that in fact the PW-2
was not sure of the statement which he was
getting recorded and when he found that his
statements were in contradiction with each
other, he used to say that he was being
threatened by the accused persons. Learned
counsel for the appellant has submitted that
PW-2 had in fact gone to the extent to state
that even the Inspector of the CBCID had
abused him to an extent that he could not
give proper replies to him as well. Learned
counsel for the appellant states that the
PW-2 had very categorically stated that the
incident had occurred because of certain
internal rivalries between the villagers and
that he had taken the names of those
persons also. Learned counsel for the
appellant states that the PW-2 had stated
that the incident had occurred because of
the internal rivalries between the villagers
and this was clear from the statement he
had got recorded before the CBCID
Inspector and this statement was also
proved by the CW-1 wherein he had stated
as under :

"मैिे मजूरूब मुकस्लम िा बयाि कद. 28.2.98 िो
कजला िारािार िा. बाद में कलया था। िवाह से मेरे द्वारा सत्यता
घर्िा िी बावत पूछिे पर उसिे मुझे बताया था कि इस घर्िा िी
प्रष्ठ र्ूकम में हमारे िांव िी रंकजश है और मारिे में हमारे िांव िे
अफसर, वाकसल S/o इसाद अली व साकलम S/o खुरशैद थे
िोकलया वाकसल व साकलम िे चलाई थी। मोर्र साइकिल अफसर
चला रहा था मैिे थािे मे सबसे पहले यही बात बताई थी।"

(ii) Learned counsel for the
appellant states that if the first information
report is seen, it has been stated that the
PW-1 had got the first information report
lodged on the information given by the
PW-2, Muslim, and in the first information
report he had also stated that PW-2 had
informed him that the accused persons after
5 All. Asif Ali Vs. State of U.P.
687
killing Ashraf had taken his dead-body on
the motorcycle of Ashraf and had dropped
the dead-body from the bridge into the
river. Learned counsel for the appellant
states that if the statement of this witness
i.e. PW-2 is seen, then it becomes very
doubtful that he would have seen the deadbody being taken to the river and being
dropped from there. At the most from the
statement of the PW-2 it could be gathered
that he had heard the accused that they
would take him to the river. In fact, the
PW-2 had stated in his statement before the
Court that when the incident had occurred
he had jumped off from the motorcycle and
had run away into the sugar cane field and
from there he had gone to the police station
situate on the main road and when his first
information report was not lodged, he had
gone to Afzal's house and he alongwith
Afzal had thereafter gone to lodge the first
information report. Learned counsel for the
appellant states that even this statement
was not believable in view of the
statements of the PW-2 wherein he had
stated that the first information report was
lodged immediately before he had got his
injuries examined and that also the first
information report was lodged after the
police, certain elderly persons and Afzal
had discussed the matter intensely and had
thereafter got lodged the first information
report. He therefore submits that in fact the
first information report was not lodged at
10:15 AM as had been stated in the first
information report but was lodged much
later at around 02:30 PM after a full
fledged discussion was held between the
police and the first informant Afzal and
certain other elderly persons of the village.
The first information report was lodged
after due discussion and not simply on the
information given by the PW-2, becomes
evident from the statement recorded of the
PW-2 at page no. 40 of the paper book and
the same is being reproduced here as under
:

"इन्सपेक्र्र साहब िे इस मुिदमें िी ररपोर्भ कलखािे
िे कलये मुझसे िही िहा था अफजाल से िहा था। कफर अफजाल,
मेरे िााँव िे ताउ चाचा व इन्सपेक्र्र साहब ररपोर्भ कलखािे िी बावत
मशकवरा िरिे बैठ िये थे। मुझे यह ध्याि िहीं कि अफजाल क्िैरा िे
िुलाम में रब्बािी व इरशाद से पूछिर िवाही में िाम कलखाये थे।
वैसे िुलाम रब्बािी व इरशाद िवाह िहर पर समय मौजूद थे जब
इन्सपेक्र्र साहब अफजाल विैरा िे मशकवरे से ररपोर्भ कलखा रहे
थे।"

That the first information report
was lodged after due consultation is also
evident from the statement of the PW-2 at
page no. 43 of the paper book. The relevant
portion is being reproduced here as under:

"ररपोर्भ कलखािे से पहले मेरे ताऊ चाचा जो िहर पर
आ िये थे उन्होिे अफजाल से मशकवरा किया था उस वक्त मैं र्ी
मौजूद था। 10 बजे िे बाद मैं पहले थािे िया कफर अस्पताल
डाक्र्री िरािे िया। मैं थािे से सीधे अस्पताल चला िया था। बीच
में िही िही रूिा था। मेरे ताऊ चाचा किस सवारी से आये थे मैिे
िही देखा"

Further
the
statement
which
makes it even more evident that the first
information report was a result of a due
discussion,
the
statement
is
being
reproduced here as under:

"जब हम िहर िे पुल पर ररपोर्भ कलखािे िे कलये
मशकवरा िर रहे थे तो उस वक्त वहााँ पुकलस मौजूद थी। जब
अफजाल िे साथ मशकवरा िर रहे थे तो कितिे पुकलस वाले मौजूद
थे मुझे ध्याि िही है। ररपोर्भ में अफजाल िे क्या कलखाया है मुझे
पढिर िही सुिाई थी। मैं अपिा िाम कलख लेता ह ाँ।"

(iii) Learned counsel for the
appellant further states that the PW-2 as a
witness was a wholly unreliable witness.
Learned counsel for the appellant relied
upon a judgment of the Supreme Court in
Vadivelu Thevar vs. The State of Madras
reported in AIR 1957 SC 614 submitted
688 INDIAN LAW REPORTS ALLAHABAD SERIES
that a witness could either be : (i) wholly
reliable, (ii) wholly unreliable and (iii)
neither
wholly
reliable
nor
wholly
unreliable. Since the learned counsel for the
appellant has relied upon the relevant
portion of the paragraph 11 of the
judgment, the same is being reproduced
here as under :

"If such a testimony is found by
the court to be entirely reliable, there is
no legal impediment to the conviction of
the accused person on such proof. Even
as the guilt of an accused person may be
proved by the testimony of a single
witness, the innocence of an accused
person may be established on the
testimony of a single witness, even though
a considerable number of witnesses may
be forthcoming to testify to the truth of
the case for the prosecution. Hence, in
our opinion, it is a sound and wellestablished rule of law that the court is
concerned with the quality and not with
the quantity of the evidence necessary for
proving or disproving a fact. Generally
speaking, oral testimony in this context
may be classified into three categories,
namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable."

Learned counsel for the appellant
further relied upon the judgments of
Supreme Court in Mahendra Singh &
Ors. vs. State of Madhya Pradesh
reported in (2022) 7 SCC 157. The relevant
paragraphs on which the learned counsel
for the appellant relied upon are being
reproduced here as under :

"It will be apposite to refer to the
following observations of this Court in its
celebrated judgment in Vadivelu Thevar :
(AIR p. 619, paras 11-12)

"11. ... Hence, in our opinion, it
is a sound and well-established rule of law
that the court is concerned with the quality
and not with the quantity of the evidence
necessary for proving or disproving a fact.
Generally speaking, oral testimony in this
context may be classified into three
categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor
wholly unreliable.

12. In the first category of proof,
the court should have no difficulty in
coming to its conclusion either way - it
may convict or may acquit on the testimony
of a single witness, if it is found to be above
reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court equally has no difficulty
in coming to its conclusion. It is in the third
category of cases, that the court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable
testimony,
direct
or
circumstantial."

13. It could thus be seen that this
Court has found that witnesses are of three
types viz. (a) wholly reliable; (b) wholly
unreliable; and (c) neither wholly reliable
nor wholly unreliable. When the witness is
"wholly reliable", the court should not
have any difficulty inasmuch as conviction
or acquittal could be based on the
testimony of such single witness. Equally, if
the court finds that the witness is "wholly
5 All. Asif Ali Vs. State of U.P.
689
unreliable", there would be no difficulty
inasmuch
as
neither
conviction
nor
acquittal can be based on the testimony of
such witness. It is only in the third category
of witnesses that the court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable
testimony,
direct
or
circumstantial."

Also learned counsel for the
appellant relied upon Rajesh Yadav &
Anr. vs. State of Uttar Pradesh reported
in (2022) 12 SCC 200 and submitted that
when the sole injured eye-witness was
wholly unreliable and when there was no
corroborative
evidence
then
it
was
absolutely unsafe to have convicted the
accused person i.e. the appellant. He
thereafter submits that in the instant case
the PW-2 appears to be a witness who was
wholly unreliable.

(iv) Learned counsel for the
appellant thereafter submitted that PW-3,
Gulam Rabbani, was also shown as an eyewitness but his statement also became
absolutely unreliable in view of the fact
that while he was narrating about his
presence at the place of incident, he was
stating all unbelievable facts. He had stated
that he was the eye-witness and he had
stated that he had seen the assailants taking
the dead-body. Learned counsel for the
appellant states that if that was the case,
then the assailants would have themselves
done away with the eye-witness, PW-3.
Learned counsel for the appellant further
states that from the statement of PW-3 it is
evident that he had alleged that he had seen
the incident from a distance of ten feet. If
that was again the case then definitely the
assailants would have done away with the
PW-3 also as they would not have left
behind a definite eye-witness. Still further
the testimony of the PW-3 becomes
unbelievable as he had stated that in
between the time of the incident and the
time when he had met the first informant
Afzal he had gone to do some shopping of
khal. It seems to be a highly improbable
thing to be done by an eye witness.

(v) Learned counsel for the
appellant further argued that when the four
of the accused who had faced trial on
account of the very first information report
which was lodged on the basis of the
information given by PW-2, Muslim, and
when the case vis-a-vis them were found to
be unbelievable then the entire case as was
brought
by
the
PW-2
becomes
unbelievable. The PW-2 was the only
injured eye-witness when he had been
considered a wholly unbelievable witness,
then the entire prosecution story was
falsified. Against the acquittal of the
accused appellant-Tarikat, a Revision was
filed being Criminal Revision No. 4066 of
2003 which has already been dismissed by
the order of this Court dated 24.07.2023.

In this regard learned counsel for
the appellant also relied upon the judgment
of Supreme Court in Balram vs. State of
Madhya Pradesh reported in (2023) SCC
Online SC 1468. Since the learned counsel
for the appellant relied upon paragraphs no.
15, 16, 17 and 18 of the judgment, they are
being reproduced here as under :

"15. Per contra, PW.6-Mulchand
attributes the fire injuries to three persons.
One to accused Rameshwar, the other to
Uma Charan and the third one to
appellant-Balaram. On the basis of the very
same evidence, the Trial Court has
disbelieved the version of these two
witnesses, insofar as accused Uma Charan
is concerned.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

16. We find it difficult to accept
the distinction drawn by the learned Trial
Judge while believing the evidence of
PW.5-Ramkali and PW.6-Mulchand insofar
as appellant- Balaram and Rameshwar
(since deceased) are concerned.

17. As already discussed herein
above, previous enmity is a double edged
weapon; on the one hand it provides the
motive, whereas on the other hand, the
possibility of false implication cannot be
ruled out.

18. We find that when the Trial
Court has disbelieved the testimony of
PW.5-Ramkali and PW.6-Mulchand insofar
as accused Uma Charan was concerned, it
could not have applied a separate standard
while considering the case of the present
appellant-Balaram and Rameshwar (since
deceased)."

Further learned counsel for the
appellant relied upon the judgment of
Supreme Court in Jodhraj & Ors. vs.
State of Rajasthan reported in (2020) 14
SCC 205. Since the learned counsel for the
appellant relied upon paragraphs no. 8 and
9 of the judgement, they are being
reproduced here as under :

"8. At the outset, it is required to
be noted that the learned trial court
convicted five accused out of 14 accused
who came to be tried for the offences under
Sections 148, 302/149, 379 IPC. The
prosecution
heavily
relied
upon
the
deposition of PW 2 and PW 3 who claimed
to be the eyewitnesses. The prosecution
also relied upon the so-called dying
declaration;
however,
the
dying
declaration has not been believed. In an
appeal, the High Court has further
acquitted another accused Bhanwar Lal on
the ground that the statement of PW 2 Om
Prakash and the statement of PW 3 Ram
Dayal under Section 161 CrPC were
recorded after a period of 18 days and that
the
statement
of
Ram
Dayal
was
exaggerated and more and more persons of
the family were tried to be implicated.
Therefore, the High Court was of the
opinion that recording the statement under
Section 161 CrPC of Om Prakash PW 2
and Ram Dayal PW 3, leaves no doubt that
both the witnesses took benefit of delay and
for the three injuries on the person of the
deceased Hariram, out of which one was
abrasion, the witnesses have resorted to
implicate 14 accused. Thus, the blemish on
the part of the witnesses, calls upon us to
sift grain from the chaff.