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

- **Citation:** CRIMINAL APPEAL No. 246 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-05
- **Case number:** CRIMINAL APPEAL No. 246 of 1991
- **Bench:** Arvind Kumar Misra-I, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ataullah-in-jail-v-state-of-u-p-46387
- **Pages:** 7

## Headnote

Criminal law - Indian Penal Code (45 of 1860)-
Section 302-Section34 - Murder - Testimony
of eye-witnesses - Accused gave knife blow
and fired on the chest of accused on
28.05.1989 at 4 PM - FIR promptly lodged
after incident on the same day at 5 PM by wife
of deceased - Informant wife & her elder
brother eye-witnesses of the incident & both
deposed involvement of accused in assault -
Ocular version tallied with post mortem report
corroborate with description of incident in FIR
as well as examination of the two eyewitnesses - Testimony on record sufficient for
recording conviction of accused - Prosecution
proved its case beyond doubt - Conviction,
proper.
(Para 19 21)
3-5 All. Ataullah Vs. State of U.P.
123
Appeal dismissed (E-5)

## Text

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40. After considering the above
facts and circumstances of the case and
the fact that the appellant is suffering
from
'Unspecified
Non-Organic
Psychosis' (F 29.0) [a mental ailment]
and further relying upon the case of
'Accused 'X' (supra), we are of the
view that the instant case does not fall
in the category of 'rarest of rare case',
warranting
capital
punishment,
particularly looking to the fact that the
appellant is suffering from a mental
illness. Hence, the death sentence
awarded to the appellant under Section
302 of IPC is liable to be converted into
life imprisonment till the end of his life
without remission.

41. Resultantly, while affirming the
conviction of the appellant under Section
302 of IPC, we set aside the 'sentence of
death' awarded to the appellant by the
Court below and direct that, for the
murder committed by the appellant, he
shall serve imprisonment till the end of
his life without remission. Subject to this
alteration in the sentence, capital case is
dismissed.
----------
(2020)03-05ILR A122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE
THE HON'BLE ARVIND KUMAR MISRA-I, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

CRIMINAL APPEAL No. 246 of 1991

Ataullah ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Y.K. Shukla, Sri Vimal Kumar (A.C.)

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

Criminal law - Indian Penal Code (45 of 1860)-
Section 302-Section34 - Murder - Testimony
of eye-witnesses - Accused gave knife blow
and fired on the chest of accused on
28.05.1989 at 4 PM - FIR promptly lodged
after incident on the same day at 5 PM by wife
of deceased - Informant wife & her elder
brother eye-witnesses of the incident & both
deposed involvement of accused in assault -
Ocular version tallied with post mortem report
corroborate with description of incident in FIR
as well as examination of the two eyewitnesses - Testimony on record sufficient for
recording conviction of accused - Prosecution
proved its case beyond doubt - Conviction,
proper.
(Para 19 21)
3-5 All. Ataullah Vs. State of U.P.
123
Appeal dismissed (E-5)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J. &
Hon'ble Gautam Chowdhary, J.)

(1) Heard Sri Vimal Kumar, learned
amicus curiae for appellant, Sri Krishna
Pahal, learned A.A.G. assisted by Sri Om
Narin Tripathi, learned A.G.A. Ist, Sri
Jitendra Kumar, Sri Sanjay Kumar Rajbhar
Sri Nafesh Ahmad, Sri Bhanu Prakash
Singh and Sri Ajay Kumar Singh, learned
A.G.As/brief holder of the State and
perused the record of this appeal.

(2) By way of instant criminal appeal,
challenge has been made to the validity and
sustainability of the judgment and order of
conviction dated 14.02.1991 passed by II
Additional Sessions Judge, Shahjahanpur,
in Sessions Trial No.413 of 1989 (State Vs.
Ata Ullah @ Antu Shah and another),
arising out of case crime no.183/1989,
under Sections 302 read with Section 34
IPC, Police Station- Tilhar, District-
Shahjahanpur, whereby appellant has been
sentenced to imprisonment for life.

(3) Brief story as reflected from the
FIR appears to be that an FIR was lodged
by the informant- Munisha Begum- P.W.1-
on 28.05.1989 at 5.00 P.M. in Police
Station- Tilhar, District- Shahjahanpur at
Case Crime No.183, under Sections 302
IPC against three persons including the
present appellant- Ataullah @ Antu Shah-
to the effect that one and half months ago
some incident of dacoity took place in the
house of the appellant, wherein, son of the
appellant- Shafi Ullah @ Lalua was
murdered. In that incident, Ataullah @
Antu Shah had named husband of the
informant- Shahbuddin- and the cousin
brother of the informant- Chaman Shah on
account of enmity. Chaman Shah had
surrendered and obtained bail from the
court concerned, and the police and the
family
members
of
appellant
were
searching Shahbuddin (husband of the
informant), as the appellant along with his
father-in-law Nanhey Shah were intending
to kill the husband of the informant prior to
the completion of 'chaliswa' ceremony after
the death of the son of the appellant. The
F.I.R. adds that on the fateful day of
occurrence i.e. on 28th May, 1989 at about
4 P.M. the informant was going to take
medicine for her son along with deceased-
Shahabuddin and jeth (brother-in-law)-
Babu Shah, while on way they reached near
Tonga Stand in Maujampur Market Tilhar,
then the elder brother of the informant-
Banney Mian also met them but the
informant- Munisha Begum- P.W.1 began
to converse with her brother. In the
meanwhile, Ataullah @ Antu Shah and the
two others- Nanhey Shah and his elder
brother Sabir Shah- appeared on the scene
and caught hold of informant's husband and
at the exhortation of the appellant, Nanhey
Shah and Sabir Shah took out their knives
and
began
to
assault
Shahabuddin
(informant's husband) with the same. The
informant husband somehow retrieved
himself and tried to scamper away, but he
was caught again by the appellants and was
given knife blows and in the process
Ataullah @ Antu Shah whipped out his
countrymade gun and pointed it on the
chest of the deceased and fired due to
which informant's husband fell down and
died. On the alarm of the informant the
accused ran away towards Chakki. It was
requested that report be lodged against the
accused and action be taken. This report is
Exhibit Ka-1.

(4) Relevant entries were made in the
concerned check F.I.R. at Case Crime
124 INDIAN LAW REPORTS ALLAHABAD SERIES
No.183/1989, under Section 302 I.P.C. at
Police
Station-
Tilhar,
District-
Shahjahanpur, which is on record as Ex.
Ka.3.

(5) Pursuant to the entries so made in
the check F.I.R., a case was registered
against the accused at Rapat No.35 dated
28.05.1989 at 17.00 hours in the concerned
General Diary at aforesaid case crime
number under aforesaid section of Indian
Penal Code, copy whereof is on record as
Ex.Ka.12.

(6) The investigation was entrusted to
P.W.3 S.I. Sri R.S. Bora. He has proceeded
to the spot and prepared the inquest report
of deceased. It commenced 6.00 P.M. and
concluded at 7.30 P.M. on 28.05.1989,
which is on record as Exhibit Ka-4. The
relevant papers were also prepared at the
same time- say- photo of dead body (photo
nash)- Exhibit Ka-5, Challan dead body-
Exhibit Ka-6, letter to C.M.O.- Exhibit Ka7, Specimen seal- Exhibit Ka-8. He has
also collected the blood stained soil and
simple soil and kept it in different
containers and prepared a Fard, copy
whereof is on record as Exhibit Ka-10. He
has inspected the place of occurrence and
prepared the site plan, which is Exhibit Ka9.

(7) After completing the necessary
formalities, the cadaver of deceased was
sent
for
postmortem
examination.
Postmortem examination on the cadaver of
deceased was conducted on 29.05.1989 at
04.40 P.M. by Dr. O.P. Khatri P.W.6,
wherein the following ante-mortem injury
was noted at the time of examination:

Ante mortem injuries

1. One gunshot wound of entry
rounded in shape on the right side of chest
in 6 O'clock position. The edges were
wragged and there was blackening and
scorching around the injury.

2. Incised wound 3 cm x 1 cm x 1
cm on the left side of chest.

3. Incised wound 2.5 cm x 1.5 cm
x muscle deep on the right side of stomach,
8 cm away from the injury no.1.

4. Multiple incised wound (6) on
the back at left side. Among these wounds
many wounds were big upto muscle and
some of them were deep upto back boon.
The bigger wound is 2.5 cm x 1 cm and
smallest wound is 1 cm x 1.5 cm. But all the
multiple incised wounds are in the area of
28 cm x 14 cm.

5. Multiple incised wounds (4) on
the left forearm each wound is 2.5cm x 1cm
x muscle deep and all the incised wounds
are in the area of 26 cm x 4 cm.

6. Abrasion 3cm x .1 cm in the
root of index finger of right hand.

In the opinion of doctor, cause of
death was stated to be shock and the antemortem injuries. The postmortem report is
Exhibit Ka-13.

(8) Statement of the prosecution
witnesses
was
recorded
and
after
completing the formalities charge- sheet-
Exhibit Ka-11- was filed against the
accused.
Consequently,
the
trial
commenced and trial Judge charged the
accused under Section 302/34 IPC for
committing
murder
of
deceased
on
28.05.1989 around 4.00 P.M. within police
station- Tilhar, District- Shahjananpur. The
Charge was read over and explained to the
accused, who denied the charge and opted
for trial.
3-5 All. Ataullah Vs. State of U.P.
125

(9) In turn, prosecution was asked to
adduce its testimony in order to prove the
guilt. The prosecution produced in all six
witnesses out of whom, two are the witness
of fact and the rest four are formal
witnesses.
Brief
reference
of
the
prosecution witnesses is ut-infra:-

Munisha Begum P.W.1 is the first
informant and he has proved written report
Ext. Ka.-1.

Banney Mian is the P.W.2 and he
is also a witness of fact and elder brother of
the Munisha Begum P.W.1.

Ranjeet Singh Vora P.W.3 is the
Investigating Officer of this case.

Bhim Sen Sharma is the P.W.4.
Samar Pal Singh is P.W.5. He has proved
the FIR which is Exhibit Ka-3 and the copy
of the GD as Exhibit Ka-12.

Dr. O.P. Khatri P.W. 6 has
conducted post-mortem and has proved
post-mortem examination report as Exhibit
Ka-13.

(10) Except as above, no other
evidence was produced and the statement
of the accused was recorded u/s 313
Cr.P.C., wherein, he claimed to have been
falsely implicated on account of enmity and
witnesses were not present on the spot.

(11) However, no evidence was led
by the defence.

(12) Consequently, the case was
posted for hearing of arguments. After
considering the case on its merits and
appraisal of facts and circumstances and
evaluation of evidence on record, the
learned trial judge returned aforesaid
finding of conviction against the accused
and sentenced him to imprisonment for life,
which paved way to this appeal.

(13) It has been succinctly claimed on
behalf of the appellant by Amicus Curiae
Sri Vimal Kumar that ocular testimony of
the occurrence cannot be accepted to be
truthful version on account of certain facts
so strewn on point of availability of the
informant P.W.1 Munisha Begum on the
spot at the time of the occurrence at 4.00
P.M. for the specific reason that it is
virtually established that the informant was
having
strange
relationship
with
her
husband- the deceased- at the time of the
occurrence and was residing separately at
her parental home, therefore, there was no
point in accompanying the deceased upto
the spot where the incident occurred. It is
specific defence of the accused that the
informant after the occurrence took place
was called on the spot and after that only
the report was managed and lodged. There
are material contradictions regarding the
very origin of the incident to the magnitude
that the deceased was accompanying the
informant from his house and on reaching
upto the spot (place of occurrence) the
brother of the informant- Banney Mian
P.W.2- also met her and while conversing
at Mozampur Bazar in front of some hotel,
the incident was caused. Infact nothing of
the sort ever occurred and no one saw the
occurrence. The deceased was having
criminal antecedent and a number of
criminal cases were lodged against him and
there is every possibility of he being killed
by others, who are not in the light for the
time being and the accused, who had
enmity
with
the
informant
under
impression of strong suspicion and high
motive to falsely implicate the accused, the
informant has cooked up a false story in
collusion with the police after the incident
126 INDIAN LAW REPORTS ALLAHABAD SERIES
had occurred. The FIR is ante- timed. The
presence of the another eye witness P.W.2-
Banney Mian is also not believable and
acceptable
situation
under
facts
and
circumstances of the case for the reason
that he (P.W.2) resides at far off place from
the place of occurrence and as per his own
statement, he used to work at the tailoring
shop right from 7.30 A.M. upto 5 P.M.
There is no explanation as to how and
under what circumstances he reached at the
spot and witnessed the incident. In the
absence of any such conspicuous testimony
as adduced by P.W.2, his presence on the
spot cannot be believed to be natural one
and fact of his presence on the spot must be
discarded as such. It is a case of blind
murder. Prosecution story is full of a
number
of
infirmities
even
the
Investigating Officer has not investigated
properly. The inquest report does not bear
the signature of the informant or his brother
P.W.1 Munisha Begum and P.W.2 Banney
Mian,
respectively,
whereas
the
prosecution case is that they were present
on the spot at time of preparation of the
inquest report, which is Exhibit Ka.4.

(14) A cumulative reading of the
entire merit, vis a vis, the evidence on
record would not inspire confidence and
the prosecution has not proved to the hilt
the case of the accused within the four
corners of Section 300/302 IPC and the
trial court was ignorant of the vitality of the
law to be applied in the case has recorded
erroneous finding of conviction.

(15) Leaned A.A.G. has supported the
presence of the prosecution witnesses
particularly P.W.1 Munisha Begum and
P.W.2 Banney Mian on the spot at the time
of occurrence and has stated that their
testimony does not vacillate on the point of
main occurrence as to how it started, how it
culminated into death of the deceased- the
husband of the informant- Shahabuddin. In
so far as the contradictions are concerned,
the same appear to be minor and there is
nothing material reflected throwing any
doubt
on
the
point
of
occurrence.
Occurrence itself is established and it went
unchallenged. There is no point in sparing
the real culprits and involving false person.

(16) In the wake of rival claim, the
moot point that arises for adjudication of
this appeal relates to the fact as to whether
the prosecution has been able to prove its
case beyond all reasonable doubt against
the appellant?

(17) While scrutinizing the record and
particularly evaluating the testimony of the
prosecution witnesses of fact, we are
required to evaluate the same vis a vis
prevailing facts and the circumstances of
this case and need to be addressed at this
juncture. In so far as the contention
regarding the FIR being ante- timed is
concerned, then we have before us the
F.I.R., Exhibit Ka-1, and the Check F.I.R..
Exhibit Ka-3 as well, which when read
conjointly with the testimony of the
concerned Head Moharir P.W.5 Samar Pal
Singh indicates that the F.I.R. was lodged
at Police Station- Tilhar at 5 P.M.- soon
after the occurrence which took place at
4.00 P.M. at locality- Mauzampur Bazar.
The distance of the police station from the
place of occurrence is stated to be 1 Km.
The argument of the appellant is that the
informant- Munisha Begum was called
from her parental home, thereafter the
report was lodged after deliberation with
the police.

(18) This argument is bald without
any supportive materiel and does not stand
test of scattered facts and the prevailing
3-5 All. Ataullah Vs. State of U.P.
127
circumstances of this case so as to give
credence to the claim so raised by the
appellant's counsel that it so occurred and
no one saw the occurrence and the
informant- Munisha Begum was not
present on the spot. There is nothing on
record, which may show that the informant
was called from her parental home and only
then the proceeding of the case took place.
On that particular aspect certain variations
or vacillations are there creeping in the
description of the post- incidental follow
up, but that would not throw any doubt on
the occurrence as the lodging of the FIR is
prompt after the incident at 5 P.M. at Police
Station- Tilhar, therefore, mere argument
would not work in the absence of any
cogent
supporting
material
and
circumstance of the case therefore, the
argument regarding the FIR being antetimed false flat.

(19) Now, we come over to the
contention regarding presence of the
prosecution witnesses on the spot at the
time of occurrence. The two ocular
versions have comeforth in the shape of the
description of the occurrence and both the
eye
witnesses-
P.W.1
and
P.W.2,
respectively,
have
supported
the
prosecution version in the manner and the
style, as has been described in the FIR itself
that it was around 4 P.M. when Babu Shah,
Shahbuddin- informant and Bannay Mian
were conversing with each other in the
locality Umerpur when the accused in
company with other assailants appeared on
the spot threatened, exhorted, overpowered
the victim and the two other assailants dealt
knife blows on him. In the meanwhile,
when the deceased retrieved himself from
the clutches of the two assailants and tried
to escape away from the scene, he was
again overpowered and he was fatally dealt
with by the assailants jointly and the role of
the appellant is stated to be at that point of
time he whipped out his gun and caused the
fatal shot on the chest of the deceased. This
ocular version when tallied with the
postmortem examination report, Exhibit
Ka-13,
gives
corroboration
to
the
description of the incident described in the
first information report as well as in the
examination of the two eye-witnesses.
There is no whisper of any attendant
circumstance, which may lead us to infer
that it never happened in that manner,
therefore, the point of non- presence of
both the eye-witnesses on the spot, cannot
be accepted and in regard thereto the
argument on this point of the appellant is of
no avail.

(20) In so far as the role of the
Investigating Officer P.W.3 Sri R.S. Vora
is concerned, then Investigating Officer has
also proved facts that he recorded statement
of the witnesses and collected the simple
and the blood stained clay from the spot
and he has proved the same as Exhibit Ka10. The check FIR has also been proved by
P.W.3 and similarly the concerned GD
entry of the day when the FIR was lodged
and apart from that the relevant documents
at the time of the preparation of the inquest
have also been duly proved in the shape of
photo nash- Exhibit Ka-5, Challan dead
body- Exhibit Ka-6, letter to C.M.O.-
Exhibit Ka-7, Specimen seal- Exhibit Ka-8,
respectively. The site plan was prepared by
this witness which he has proved as Exhibit
Ka-9. There is nothing of the sort, which
may throw any doubt regarding the
occurrence
and
the
post-
incidental
processorial development on the spot.
Argument to the ambit that the signature of
P.W.1 and P.W.2 in the inquest report are
missing, would not itself throw away the
prosecution
case
because
the
post-
incidental development is the mind- set of
128 INDIAN LAW REPORTS ALLAHABAD SERIES
the informant and the working nature of the
police, who is seized of the matter on the
spot and it cannot be held with certainty
that this being that happens, therefore,
argument advanced to that ambit is also not
material on record.

(21) In so far as the other aspects of
this case are concerned, then certainly we
come
across
minor
contradictions
appearing in the testimony of P.W.1
Munisha Begum and P.W.2 Banney Mian
but that is not substantive in nature,
therefore,
we
unhesitatingly
and
unequivocally hold that the testimony on
record is sufficient for recording conviction
of the accused as has been rightly done by
the trial court itself. Consequently, charge
under Section 320/34 IPC stands proved
against the appellant and the incident is
consistently established, then the motive in
the presence of direct ocular testimony of
the two witnesses (P.W.1 and P.W.2) is
relegated
to
the
background.
The
prosecution has proved its case beyond all
reasonable doubt.

(22) Accordingly, judgment and order
dated 14.02.1991 passed by II Additional
Sessions Judge, Shahjahanpur, in Sessions Trial
No.413 of 1989 (State Vs. Ata Ullah @ Antu
Shah and another), arising out of case crime
no.183/1989, under Sections 302 read with
Section 34 IPC, Police Station- Tilhar, District-
Shahjahanpur is affirmed.

(23) Consequently, this appeal lacks
merits and the same is hereby dismissed.

(24) Appellant- Ataullah @ Antu Shah- is
on bail. His bails bonds and surety bonds are
hereby cancelled. He shall be taken into custody
forthwith for serving out the remaining part of
his sentence.

(25) Let a copy of this order be certified
to the concerned trial court for its intimation and
follow up action.
----------
(2020)03-05ILR A128
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No. 293 of 2004
&
Criminal Appeal No. 6021 Of 2003
&
Criminal Appeal No. 109 of 2004

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

Counsel for the Appellants:
Sri B.K. Tripathi, Sri Anil Yadav, Sri Arun
Kumar Singh, Sri Ashok Kumar Mishra, Sri
Krishna Kumar Shukla, Sri Lav Srivastava,
Sri Rajeshwar Prasad Sinha, Sri Sanjay
Kumar
Mishra,
Sri
Sanjay
Kumar
Srivastava, Yakub Ansari

Counsel for the Opposite Party:
A.G.A., Sri Ravindra Rai

A. Evidence Law-Indian Evidence Act,
1872-
Section
8-
Conduct
of
Prosecution witnesses- The conduct of
men
on
encountering
a
particular
situation is to be evaluated going by
the
prevalent
circumstances
in
a
society and is not at all blameworthy
or one that creates any doubt about
the First Information Report, carrying
a truthful account. Non- examination
of independent witness- Is lapse of
investigation on the part of the police,
but in no way does it detract from the
veracity
of
the
First
Information
Report.