# Fakira And Ors v. State Of U.P

- **Citation:** (2016) 3 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-26
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fakira-and-ors-v-state-of-u-p-43501
- **Pages:** 13

## Headnote

PENAL CODE, 1860-Ss. 147, 148, 302, 307, 149-Murder-Common object

Eye-witnesses related to deceased - mere relationship of the eye-witnesses with the deceased is
not a ground to discard their testimony. Evidence of related witnesses, if found cogent, consistent and
trustworthy, can form the basis of conviction, particularly when their presence at the place of
occurrence is natural and stands corroborated by surrounding circumstances
3 All. Fakira & Ors. Vs State Of U.P.
111

Motive - where previous criminal litigation between the parties and failure of compromise is proved
on record, the same constitutes a sufficient motive for commission of the offence. Existence of motive,
though not essential in presence of reliable eye-witness account, lends additional assurance to the
prosecution case.

Prompt F.I.R. prompt lodging of F.I.R. after the incident, duly proved by police witnesses and
supported by contemporaneous G.D. entries, rules out the possibility of ante-timing or false
implication.

Medical evidence- recovery of blood-stained articles from the place of occurrence and from the
person of the deceased, coupled with medical evidence showing gun-shot injury consistent with the
ocular version, firmly establishes the prosecution case.

Credibility- minor contradictions or discrepancies in the testimony of prosecution witnesses which do
not go to the root of the matter are inconsequential and do not affect the substratum of the
prosecution case.

Conviction- conviction of the appellants under Sections 302 IPC and 302 read with Section 149 IPC,
along with allied offences under Sections 147 and 148 IPC, based on proper appreciation of evidence,
was justified and called for no interference.

Appeal dismissed.

List of Cases cited:

## Text

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110 INDIAN LAW REPORTS ALLAHABAD SERIES
handicapped in establishing his defence and the re-trial would be reduced to mere formality
entailing agony and hardship to the accused and the informant and witnesses too.

12. In the present matter all the possibilities have been exploited and even an inqury
has been initiated to find out whether the record was weeded as per rules or no, thus, nothing
more can be done, especially after 35 years of the occurrence. I am aware that if no action
is taken in such matter it would encourage dubious persons and detractors of Justice by
allowing undeserved premium to violators of law by acting hand in gloves with, those
antisocial elements coming to hold sway, behind the screen, in the ordinary and normal
course of justice.

13. But in the present case, nothing can be done in the matter and the matter shall needs
closure, and the appeal deserves to allowed. Hence the impugned judgement of conviction
and sentence dated 16.1.1985 passed by Special Judge (Anti Dacoity), Etawah in Special
Case No. 75 of 1984 (State Vs. Jagat Singh and Another), under Section 392 I.P.C., Police
Station-Bela, District-Etawah, is hereby set aside.

14. Accordingly, appeal is allowed.

15. Let a copy of this order be sent to the trial court concerned.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. - 944 of 1988

Fakira And Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
R.A. Mishra

Counsel for the Respondent:
A.G.A.

PENAL CODE, 1860-Ss. 147, 148, 302, 307, 149-Murder-Common object

Eye-witnesses related to deceased - mere relationship of the eye-witnesses with the deceased is
not a ground to discard their testimony. Evidence of related witnesses, if found cogent, consistent and
trustworthy, can form the basis of conviction, particularly when their presence at the place of
occurrence is natural and stands corroborated by surrounding circumstances
3 All. Fakira & Ors. Vs State Of U.P.
111

Motive - where previous criminal litigation between the parties and failure of compromise is proved
on record, the same constitutes a sufficient motive for commission of the offence. Existence of motive,
though not essential in presence of reliable eye-witness account, lends additional assurance to the
prosecution case.

Prompt F.I.R. prompt lodging of F.I.R. after the incident, duly proved by police witnesses and
supported by contemporaneous G.D. entries, rules out the possibility of ante-timing or false
implication.

Medical evidence- recovery of blood-stained articles from the place of occurrence and from the
person of the deceased, coupled with medical evidence showing gun-shot injury consistent with the
ocular version, firmly establishes the prosecution case.

Credibility- minor contradictions or discrepancies in the testimony of prosecution witnesses which do
not go to the root of the matter are inconsequential and do not affect the substratum of the
prosecution case.

Conviction- conviction of the appellants under Sections 302 IPC and 302 read with Section 149 IPC,
along with allied offences under Sections 147 and 148 IPC, based on proper appreciation of evidence,
was justified and called for no interference.

Appeal dismissed.

List of Cases cited:

1. Waman and others v. State of Maharashtra, 2011 Cr.L.J. 4827;
2. Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673;
3. State of U.P. v. Naresh and others, (2011) 4 SCC 324;

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

1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar
Pandey, Advocate appearing for the appellant no.2 Munkad and Sri K.K. Mishra, learned
counsel appearing for the appellant no.5 Farahim and Sri A.N. Mulla, learned A.G.A. on
behalf of the State and perused the record.

2. The instant criminal appeal has been preferred by the appellants against the judgment
and order of conviction dated 21.04.1988 passed by Vth Additional Sessions Judge, Meerut,
in Sessions Trial No. 423 of 1980 arising out of Case Crime No. 301 of 1980, under Section
147, 148, 307, 302 IPC, P.S. Parikshitgarh, District Meerut, whereby the surviving appellant
Farahim was sentenced to life imprisonment under Section 302 IPC and two years' rigorous
imprisonment under Section 148 IPC. Accused Munkad was sentenced to life imprisonment
under Section 302 IPC read with Section 149 IPC and two years rigorous imprisonment
under Section 148 IPC. All the sentences were directed to run concurrently.

3. It is pertinent to mention here that initially this criminal appeal was preferred by five
appellants namely Fakira, Munkad, Daud, Maqsood and Farahim. Appellants Fakira, Daud
112 INDIAN LAW REPORTS ALLAHABAD SERIES
and Maqsood died during pendency of this appeal, therefore, their appeal abated by order
Neutral Citation No. - 2016:AHC: 34510-DB - 2 - of this Court dated 09.02.2016. Now this
appeal is confined to the two surviving appellants Munkad son of Sadatt and Farahim son of
Daud.

4. Facts of this appeal as discernible from the record appears to be that first informant
Atma Ram son of Amba Prasad, resident of Dayalpur, P.S. Parikshitgarh, District Meerut
lodged written report Exhibit Ka-2 at P.S. Parikshitgarh, District Meerut on 30.09.1980 at
9.20 p.m. to the effect that about 25 days ago, Abid son of Daud resident of Village Shaudat
had lodged a false case against his father and himself. It was due to lodging of aforesaid
case, that the accused/appellants became inimical towards complainant's father deceased
Amba Prasad. The complainant's father along with other co-villagers Jaikaran Singh son of
Tikam Singh, Leeley Singh son of Preetam Singh, Jaipal son of Khub Chandra and
complainant were returning home on 30.09.1980 from Village Narangpur after purchasing
buffalo. On the fateful day, it was around 6.00 p.m. in the evening, when they reached
towards the southern side jungle of their village about one furlong from Chaupala situated at
Agwanpur (in the vicinity of their village), the present appellants in company with other
three co-accused/ assailants (Fakira, Daud and Maqsood) appeared on the spot from a
sugarcane field and caught hold of the complainant's father, who was walking 15 steps
ahead of the complainant on foot with his bicycle and said to his father that he had got
assaulted Abid, today they will take revenge for the same. Fakira gripped his neck, Daud
caught his father's right hand, Maqsood caught his left hand and Munkad threatened
pointing his gun towards the complainant and in the meanwhile Farahim fired on the back of
his father. Munkad also fired with his gun on the complainant. Due to gun shot,
complainant's father fell in the roadside drainage (Nali). The assailants made their escape
good in and through the sugarcane field. The complainant's father died on the spot. His dead
body and bicycle were lying on the spot. Report be lodged and appropriate action be taken.

5. On the basis of this written report, relevant entries were made in the chik FIR at
crime no. 301 of 1980, under Section 147, 148, 307, 302 IPC, P.S. Parikshitgarh, District
Meerut on 30.09.1980 at 21.20 hrs. This chik FIR is Exhibit Ka-11. Thereafter, investigation
took place and the Investigating Officer prepared various memos; say memo of bicycle and
shoes of deceased are Exhibit Ka-9. Memo of simple and blood stained soil from the spot,
currency worth Rs. 450.40, a receipt of Khadi Gramodyog, Manpada, Agra, a receipt of
purchase of buffalo and memo of receipt for rent of Kolhu were prepared. The Investigating
Officer also got prepared the inquest report of deceased Amba Prasad on 01.10.1980 which
is Exhibit Ka-4 on record. Thereafter relevant papers were prepared for sending the dead
body for post mortem examination. Reference may be made of Exhibit Ka-5 letter to
Medical Officer, Exhibit Ka-6 letter to R.I., Exhibit Ka-7 Photo Nash and Exhibit Ka-8
Chalan of dead body exhibit Ka-8. Post mortem examination on the dead body of Amba
Prasad was conducted by Dr. P.N. Khanna, on 01.10.1980 at 1:00 p.m. in the mortuary at
Meerut. The following antemortem injuries were found on the body of deceased Amba
Prasad:
3 All. Fakira & Ors. Vs State Of U.P.
113
 1. Gun shot wound of entry 2cm x 1 cm x cavity deep on the middle of left side of
back 1-1/2 cm from the mid line. B.S.T. Present. Margins are lacerated and inverted.
 2. Abrasion 1cm x 1/2 cm on the left side of top of shoulder.
 3. Abrasion 1cm x 1/2 cm on the left side of neck 3 cm above pomum adami.
 4. Linear abrasion 4cm x 1/4 cm on the lower part of right side neck.

 The cause of death is said to be syncope as a result of gun shot injury. This post
mortem examination report is exhibit Ka-20.

 6. The Investigating Officer also recorded statements of various persons and
prepared the site plan of the incident Exhibit Ka-19 and after completing various formalities,
submitted charge sheet against the appellants at Case Crime No. 301 of 1980, under Section
147, 148, 307, 302 IPC, P.S. Parikshitgarh, District Meerut. Charge sheet is Exhibit Ka22.

7. Thereafter, the case was committed to the Court of Sessions from where it was
made over for trial to Vth Additional Sessions Judge, Meerut.

8. The appellants were heard on the point of charge and prima-facie ground was
found existing for framing charges under Section 147, 148, 307/149 and 302/149 IPC
against accused-appellants. Accordingly, charges were framed and read to the accusedappellants in Hindi who abjured charges and opted for trial.

9. Prosecution was called to adduce its testimony whereupon prosecution produced
as many as 12 witnesses. P.W.-1 is complainant Atma Ram, he has proved the first
information report and the incident in question. P.W.-2 is Jaipal, he is an eye witness, P.W.-
3 is Jaikaran Singh, he is also an eye witness and has proved the receipt for sale and
purchase of buffalo as Exhibit Ka-1. P.W.-4 is constable Shishu Pal who has completed the
inquest report and also sealed the dead body and has proved his act as such. P.W.-5 is Bhola
Ram, he has testified about some quarrel and altercation which took place two days prior to
murder of Amba Prasad in the house of Atma Ram, the complainant. He has also identified
his signature on the inquest report Exhibit Ka-4. P.W.-6 is Sub-Inspector A.P. Devli, he has
deposed to the effect that he proceeded to the spot after receiving the information along with
M.P. Tyagi and S.O. at about 9.30 p.m. and remained on the spot till morning. He prepared
the inquest report at the instance of S.O. on 01.10.1980. He has - 5 - also proved Exhibits
Ka-5 to Ka-8. Besides, he has also proved material Exhibit 1, 2 and 3 and Exhibit Kha-1.
P.W.-7 is Bhopal Singh, he has testified to the effect that the deceased, complainant and
Jaipal Singh had come to him for purchasing his buffalo for Rs. 2200/- and the buffalo was
purchased by Amba Prasad and a write up/description of buffalo was entered and prepared
in form of receipt Exhibit Ka-1. P.W.- 8 is Ramesh Chandra, he has testified to the fact that
Investigating Officer collected blood stained soil and simple soil from the spot and proved
the same as Exhibit Ka-10. P.W.-9 is constable Dhoom Singh, he has prepared the chik as
Exhibit Ka-11, has also proved relevant G.D. Rapat No. 30 dated 30.09.1980 as Exhibit Ka13. He has also proved Exhibit Ka-14, Ka-15 and Ka-16, Ka-17 and Ka-18. P.W.-10 is Sub
Inspector Mahendra Prakash Tyagi, the Investigating Officer who has proved the site plan
Exhibit Ka-19. He has also described the various steps taken by him for completing the
investigation. P.W.-11 is Dr. P.N. Khanna who has proved the post mortem report of
114 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Amba Prasad as Exhibit Ka-20. P.W.-12 is Rajendra Singh, the second
Investigating Officer who took over investigation from the first Investigating Officer
(Mahendra Prakash Tyagi) and completed the rest of the formalities and proved material
Exhibit 6 and Exhibit Ka-21 and the charge sheet Exhibit Ka-22.

10. Thereafter evidence for the prosecution was closed and statement of appellants
was recorded under Section 313 Cr.P.C. In their statement, appellants have denied their
involvement in the crime and have termed their implication false. Appellant Farahim has
produced defence testimony by proving certain papers. These papers are Exhibit Kha-1 to
Kha-5. No ocular testimony has been led by the defence. Thereafter, evidence for both the
parties was closed and the case was posted for arguments.

11. After hearing both the sides on the merits of the case, the learned Trial Court
passed aforesaid judgment and order of conviction and imposed aforesaid sentences against
both the appellants. Consequently this appeal.

12. It has been urged on behalf of both the appellants that the incident was not
witnessed by anyone, death of Amba Prasad was caused somewhere else in the darkness of
night and the appellants have been deliberately dragged in, in this case for no plausible
reason. Motive to commit crime is very week, the compromise in question had already been
arrived at between the parties and there was no point for causing death. More so, there are
glaring contradictions in the testimony of the so-called eye witnesses of the incident.
Witnesses of fact being relatives are highly interested witnesses. FIR is ante time and
tutored one. On behalf of appellant Munkad, it has been specifically urged that there was no
reason or motive for him to join the company of other assailants to commit crime. If the fire
was caused on the spot by Munkad then empty cartridge, Tikli etc could have been found on
the spot but the Investigating Officer has not found any such cartridge, tikli etc. This goes to
show hollowness of the prosecution story. As per the prosecution story, three persons caught
hold of the deceased when firing was made. This conduct is highly unnatural in view of the
fact that the deceased was, as per prosecution case, surrounded by the assailants and in such
a situation it is hardly imaginable to fire on the deceased as that will in all likelihood cause
injuries to the other assailants also.

13. Confronting aforesaid arguments on behalf of the appellants, Sri A.N. Mulla,
learned AGA has vehemently claimed that presence of eye witnesses on the spot cannot be
doubted. Their presence is most natural, even the bicycle and certain receipts have been
recovered from the spot and memo of the same was prepared by the Investigating Officer.
Every - 7 - witness has come forward with solitary description of the incident. The very
motive imputed regarding failure of compromise between the two sides is sufficient cause
for causing death. FIR is as prompt as anything in the facts and circumstances of the case.
The person who sold out buffalo to the deceased (Amba Prasad) was Bhopal Singh. He has
been examined as P.W.-7 and he has proved the sale-purchase transaction followed by a
receipt / write up of the transaction. In the presence of eye-witness account testimony, the
motive becomes insignificant. Even then the immediate motive for committing crime was
failure to get the compromise fructified on the part of the appellants and the same has been
3 All. Fakira & Ors. Vs State Of U.P.
115
specifically proved in this case. Simple and blood stained earth has been collected from the
spot which fact very much proves place of incident.

14. Considered the above submissions.

15. In view of the above rival contentions and the grounds urged in support of
appeal, the moot point involved for consideration relates to fact whether the prosecution has
been able to prove its charges against the present appellants beyond reasonable doubt?

16. In this case, the very genesis of the problem can be addressed to the claim laid
by the prosecution that prior to the incident in question, some incident (marpeet and loot)
had taken place wherein report was lodged at crime no. 274 of 1980 under Section 393 IPC
by the complainant Rakesh son of Harsaran Sharma wherein allegations were made against
Abid son of Daud and the litigation was pending. This lodging was through instrumentality
of Amba Prasad and the complainant. It is reflected from the record that even Abid son of
Daud had lodged FIR at Case Crime No. 274-A of 1980 under Section 147, 148, 324 IPC
against the informant of the above case namely Rakesh, Atma Ram, Ambe and four other
unknown persons. Copies of chik - 8 - FIR's of both these cases, got registered at the
instance of complainant Rakesh and Abid, are Exhibit Ka-16 and Ka-17 respectively and the
same have been proved by P.W.-9 Dhoom Singh. In both these cases, the incident alleged is
dated 05.09.1980 and the present incident in question took place on 30.09.1980 at about
6.00 p.m. It has been claimed on behalf of the prosecution that the accused persons who
were relatives inter-se and partymen of co-accused Daud somehow tried to force
compromise in the above cases, which compromise was initially accepted by the
complainant Atma Ram but the same was subsequently refused by deceased Amba Prasad
and he refused to go to the police station for entering into compromise in the aforesaid two
cases and this gave rise to enmity on the part of the appellants and they tried to retaliate for
the same.

17. In the factual scenario, we have perused and considered the entire testimony and
circumstances of the case in order to assess authenticity and veracity of the prosecution case.
A bare perusal of FIR reveals that the incident allegedly took place on 30.09.1980 at about
6.00 p.m. in the jungle situated in the vicinity of the village (Dayalpur). As per the
description, the deceased at that point of time was walking on foot with his bicycle about 15
steps ahead of complainant and the other prosecution witnesses, when the appellants
accompanying the other coaccused persons, appeared on the spot from a sugarcane field,
caught hold of the deceased and Farahim fired on the back of deceased Amba Prasad. The
deceased fell down on the roadside drainage and died. The witnesses tried to intervene but
Munkad threatened by pointing his gun towards them. It has been specifically mentioned
that at the time of causing incident, assailants were saying "Tumne Abid ko Pitwaya tha, Aaj
uska Badla lenge". After committing the crime, the assailants made their escape good.

18. The distance of police station from the place of incident is said to be 5 km.
P.W.-1 Atma Ram was examined by the prosecution to prove the incident. He has testified
to the effect that his father was murdered on 30.09.1980 and 25 days prior to this incident,
116 INDIAN LAW REPORTS ALLAHABAD SERIES
Abid had looted watch of Rakesh and had pressed his neck. His father asked him to inform
telephonically about the incident to the concerned police station. He telephonically informed
the police station about the incident. A case was registered against Abid son of Daud at
police station Parikshitgarh and it has also come in his testimony that Abid also lodged a
false case against his father, Rakesh and himself. On complaint being made at the instance
of his father, investigation in this case (by Abid) against his father was stopped. Daud and
accused persons were wishing that some compromise may be entered into in both the
criminal cases (Exhibit Ka-16 and Exhibit Ka-17). It has also come in his testimony that two
days prior to the incident, Daud and Fakira had come to him and initially compromise was
accepted and it was decided that the matter will be settled in the police station on the very
next day. Daud and Fakira went away from his house. Meanwhile, in the evening when his
father (deceased) came to home and he was told about the compromise, he flatly refused for
the same. On very next morning, Daud and Fakira came to him and asked him and his father
to come to police station for compromise but the same was refused by his father and he did
not visit the police station.

19. In view of above particular background of this case the very grudge and enmity
imputed on the appellants is perceptible as the motivating proclivity for committing the
crime. It has been testified by P.W.-1 Atma Ram that on the fateful day i.e. on 30.09.1980,
he was coming from village Narangpur along with deceased and Jaipal Singh after purchase
of buffalo. They purchased one buffalo from Bhopal Singh of village Narangpur and a
description / receipt / write up was also prepared regarding the sale-purchase transaction.
This receipt/ description was written by Jaipal Singh and he has also proved the same in
court as Exhibit Ka-1 and this receipt has been specifically proved by another prosecution
witness Jaipal Singh P.W.-2 in his testimony also and a reference of the same will be worthy
of mention at this stage.

20. P.W.-2 Jaipal Singh has stated that he is well acquainted about verities of
buffalo, therefore, the deceased asked him to accommpany him for purchasing buffalo in
village Narangpur. He has specifically stated that the buffalo was purchased on payment of
Rs. 2,200/- in cash and before sale fructified, milk of buffalo was milched out and tested. He
has further clarified that the name of the purchaser was written as Amba Prasad and this
description was written by him and a receipt ticket was so appended and endorsed on a
revenue stamp of 20 paise. Relevant to mention that Exhibit Ka-1 is original receipt/ write
up dated 30.09.1980. Therefore, purchase of buffalo from Bhopal Singh of village
Narangpur stands vindicated by the testimony of this (P.W.-2) prosecution witness alone.
Consistent testimony has come forth from PW-1 and PW-2 to the effect that after purchase
of buffalo, they performed return journey to their village when they met with Jaikaran Singh
and Leeley Singh on way. It was around 6.00 p.m. in the evening when they reached to the
southern side of forest located at Agwanpur Chaupala (in the vicinity of their village), the
accused persons appeared on the scene wading through a sugar cane field and caught his
father on the eastern side patari of the road and said "Tumne Abid ko Pitwaya tha, Aaj uska
Badla lenge", Daud and Maqsood caught hold of two hands of his father and Fakira gripped
his father's neck and Farahim fired on the back of his father. The deceased fell down in the
drainage adjoining the road and died. It was also come in the testimony of both the eye
3 All. Fakira & Ors. Vs State Of U.P.
117
witnesses that they tried to rescue the deceased but Munkad threatened them pointing his
gun towards them. After committing the crime, the accused made their escape good. They
went near the deceased, the blood was oozing out from the wound and was seeped on the
clothes worn by deceased and spilled on ground. After the incident, report was written on
the spot by PW-1 and lodged at the concerned P.S. Parikshitgarh at 9.20 p.m. on 30.09.1980
which written report has been proved as Exhibit Ka2. Entries of the same were taken down
in the chik FIR which has been proved by PW-9 constable Dhoom Singh and he has also
testified fact regarding relevant entry, of the same, being made in the relevant G.D. no.30
dated 30.09.1980 and has proved the same as Exhibit Ka-13.

21. It has been suggested on behalf of the appellants that the deceased might have
been killed somewhere else and the complainant side brought his dead body on the spot and
they were not present on the spot and their presence on the spot is not natural. The
contention so raised is fit to be discarded, for the reason that the very place of occurrence
has been proved by PW-8 Ramesh Chandra by stating that the Investigating Officer took
blood stained soil in his presence besides taking simple soil on the spot and has proved his
signature on Exhibit Ka-10. In addition to above, the witnesses have also proved the receipt/
write up regarding sale and purchase of buffalo as Exhibit Ka-1 which was said to have been
recovered from the pocket of the deceased itself. At this stage, specific observation can be
conveniently made regarding signature of Bhopal Singh on revenue stamp on this receipt,
who has been examined as PW-7 in this case and he has also corroborated the version of the
other prosecution witnesses say PW-1 Atma Ram and PW-2 Jaipal Singh regarding purchase
of buffalo. In his testimony, Bhopal Singh has categorically stated that a receipt/ write up
regarding sale and purchase of buffalo for Rs. 2,200/- was written up by Jaipal Siingh and
has also accorded sanction to his signature on it in the trial court as Exhibit Ka-1. Therefore,
contention so raised regarding death of deceased at somewhere else caused by unknown
persons is negated by exuberance of prosecution evidence. Careful scrutiny of testimony of
PW-1, PW-2 - 12 - and PW-7 when taken cumulatively establishes fact that the deceased
Amba Prasad went to Bhopal Singh in the village Narangpur on the fateful day (30.09.1980)
and the very receipt/ write up regarding the sale-purchase transaction for buffalo was
executed and the same was found from the pocket of Kurta worn by the deceased at the time
of his death and memo of the same was prepared on 01.10.1980 and which (memo) has been
proved as Exhibit Ka-9.

22. Contention raised to the extent that this write up / receipt regarding sale and
purchase of buffalo from Bhopal Singh is cooked up and manufactured one subsequently to
the incident to give colour to the sale-purchase transaction is ruled out by the testimony of
PW-7 Bhopal Singh and PW-2 Jaipal Singh. How and why the police personnel are acting in
collusion with the complainant is not obvious. Therefore, argument raised to the extent has
no force to hold ground. Therefore, story of receipt / write up regarding purchase of buffalo
by the deceased on 30.09.1980 is very much proved under the facts and circumstances of the
case. At this stage, an alternative contention has been suggested that evidence has come on
record that there was some short cut road from village Narangpur to the village of deceased
i.e. Dayalpur and the route followed by the deceased on the fateful day was the longer
distance than the route chosen by the deceased for his return journey.
118 INDIAN LAW REPORTS ALLAHABAD SERIES

23. We are unable to comprehend as to what the learned counsel means by
suggesting such alternative contention because the road used by deceased itself is directly
connected to the village (of deceased) and it is obvious that the deceased was not all alone,
but he was being accompanied by at least three-four persons including the complainant and
it is the personal convenience of the deceased that he chose the particular road which he
found convenient for him at that point of time. The version of incident narrated by PW-1
Atma Ram is virtually - 13 - corroborated in material particulars by another eye witness
PW-2 Jaipal Singh, the scribe of the sale purchase transaction. There is no material
difference in the eye account testimony of both the witnesses (PW-1 and PW-2) of fact
produced by the prosecution. Though we have already observed yet we can refer again at the
cost of repetition that the very genesis and motive for committing the crime was stated to be
failure of settlement/ compromise sought on behalf of the co-accused Daud. The fact of
pendency of criminal cases between the parties, say the informant and the accused side has
been proved satisfactorily, therefore, non settlement of dispute particularly in contest when
the deceased being instrumental for such non-settlement is obvious. In so far as presence of
the prosecution witnesses on the spot is concerned, the same is very much found to have
been established by the ample testimony of all the prosecution witnesses including the
Investigating Officer and other police personnel who have been examined by the
prosecution in this case on its behalf. At this stage, it would be pertinent to take note of fact
that PW-9 Dhoom Singh has been cross examined by the defence wherein also nothing
adverse has come out as to suggest any apparent or inherent infirmity in his testimony
regarding the lodging of the FIR Exhibit Ka-2 by complainant Atma Ram at police station
Parikshitgarh. Relevant to take note of fact that Exhibit Ka-1, the sale purchase
transaction/write up also bears certain blood marks on its back. In this context, a plea was
raised by the defence as to how and why this paper was not sent to forensic laboratory for
examination, so that things could be properly assessed and ascertained about presence or
absence of human blood on it.

24. Here a mention can be made regarding testimony of Sub Inspector Mahendra
Prakash Tyagi firstly on point that in his cross examination, he has specifically testified that
blood marks were present on the aforesaid write up (Exhibit Ka-1) regarding sale-purchase
transaction and the same was not sent by him to forensic laboratory, for the reason that the
investigation was taken over by S.O. Sri Rajendra Singh as soon as he completed initial
formalities of investigation. At this stage, we may dip into the testimony of PW-12 Rajendra
Singh, the subsequent Investigating Officer who submitted charge sheet in this case. He has
been asked in his cross examination specific question as to how and why he did not send the
sale-purchase transaction write up/ description for test once it contained blood stains on its
back. A reply has been aptly given by PW-12 Rajendra Singh that the very Kurta (worn by
deceased) bore blood stains and the same had been sent for chemical examination, therefore,
he did not find it convenient to send the write up / description Exhibit Ka-1 for chemical
examination which was itself recovered from one of the pockets of Kurta. One thing is
obvious that in the testimony of witnesses of fact and particularly in the testimony of both
the Investigating Officers PW-10 S.I. Mahendra Prakash Tyagi and PW-12 Rajendra Singh,
3 All. Fakira & Ors. Vs State Of U.P.
119
fact of existence of blood stains on the back of Exhibit Ka-1 has been proved and
established.

25. We may also take note of the testimony of PW-11 Dr. P.N. Khanna who
conducted the post mortem examination on the dead body of the deceased Amba Prasad on
01.10.1980. He has described the antemortem injuries and injury no. 1 has been stated to be
gun shot wound of entry 2 cm x 1 cm x cavity deep on the middle of left side of back 1 1/2
cm away from mid line BST present, injury no.2 has been stated to be Abrasion 1 cm x 1/2
cm on the left side of top of shoulder, injury no.3 is abrasion 1 cm x 1/2 cm on the left side
of neck and injury no.4 is linear abrasion 4 cm x 1/4 cm on the lower part of right side of
neck. Obviously before the gun shot was fired on the back of the deceased, he was
manhandled and his neck was also gripped by one of the co-accused and the incident as has
been narrated by the prosecution witnesses shows that after the fire hit the deceased, he was
left free and he fell down in the drainage adjoining the road side. This process of falling
down can be construed for causing abrasion on shoulder and injury nos. 3 and 4 are abrasion
and linear abrasion on neck which injuries may have been caused by manhandling of
deceased by the accused persons. 93 pellets have been recovered from inside the dead body
of the deceased by the doctor. Doctor has made categorical statement that death of deceased
is possible at 6.00 p.m. on 30.09.1980. Various suggestions have been given by defence in
cross examination to the doctor regarding the cause of death and nature of injuries and
possibility of short survival of deceased, but no specific challenge as has been made
regarding claim of the doctor that the death of deceased is possible at 6.00 p.m. on
30.09.1980. Further, nothing adverse has come on record which may place any doubt on the
time of death of the deceased as suggested by the doctor. Therefore, the medical testimony
also gives corroboration to the eye account testimony of the prosecution witnesses of fact.

26. It is no point for consideration that the shot fired on the back of the deceased did
not hit any other assailants while they had surrounded the deceased, for the reason that it is
the skill and the position of shooter which is determinative of these factors and defence has
not suggested any peculiar stagnant situation which may show that in case any shot, if fired
in such a situation then injuries may be caused to the other coaccused persons who have
closely surrounded the deceased. Similarly fire shot by Munkad on the occasion for
threatening the prosecution witnesses did not cause any injury on them, is not by itself
explanatory of non presence of the prosecution witnesses. The motive for committing the
crime on careful analysis of entire facts and circumstances of the case and after taking the
holistic view of the entire incident and in the light of prosecution testimony and the
circumstances brought on record, it is well established that the very cause for committing
the crime was pending litigation between the complainant side and the accused and failure
of compromise as sought by the accused persons had resulted into commission of the crime.

27. No doubt, certain trivial or minor contradictions have surfaced in the testimony
of prosecution witnesses, both of facts and formal witnesses but that trivial contradictions
are not sufficient to thrown away case of the prosecution. These contradictions are not
material contradictions. The prosecution testimony on the whole is creditworthy, consistent
and corroborating incident in each material particulars. Certain papers regarding some chik
120 INDIAN LAW REPORTS ALLAHABAD SERIES
report Exhibit kha-1, application Exhibit Kha-2, copy of application Exhibit Kha-3, copy of
x-ray report Exhibit Kha-4, injury report of Abid Exhibit Kha-5 by itself proves pendency of
litigation between the parties. However, production of these exhibits by the defence cannot
be said to be the motivating factor for false implication of the appellants. More so, the eye
account testimony is innocuous and inspiring confidence and the same cannot be brushed
aside merely on the basis of aforesaid documents Exhibit Kha-1 to Exhibit Kha-5.

28. We may also take note of fact that the distance of police station from the place
of incident is stated to be 5 km and it has been very much proved by PW-1 Atma Ram that
the report was written on the place of occurrence after the incident at 6.00 p.m. on
30.09.1980 and the distance was covered on foot by the informant and the report was lodged
at 9.20 p.m. which cannot be termed to have been lodged at inordinate delay. Argument has
been advanced by the defence that as per testimony of police personnel, it has been stated
that the informant had come to lodge report on bicycle, whereas, the same fact was denied
by the informant. The contention so raised does not carry any force because there may be
some confusion regarding conveyance means used by the informant for covering distance
from the place of occurrence to the police station and again back to the place of incident, but
this fact is extraneous one and will not by itself throw any doubt on the veracity of the
incident which has been reasonably proved against the accused persons and particularly the
present appellants Farahim and Munkad. Obviously the offence was committed by a
company of five accused persons among whom three (Fakira, Daud and Maqsood) have died
and only two surviving appellants are before us namely Farahim and Munkad as described
above in the body of the judgment.

29. In this view of the matter, we also notice that the learned trial court has taken a
holistic view of the entire incident and has rightly considered the various aspects of the case
in reasonable and consistent manner and has rightly recorded conviction against all the
accused persons including the present appellants which conviction and order of sentence is
found to be based on positive material and record and the same is sustained by us. We may
consequently sum up that the finding of conviction and sentence can not be faulted with at
this stage. In so far as sentencing under Section 302 IPC is concerned, a lesser punishment
of life imprisonment has been awarded to the present appellants Farahim. Similarly,
conviction of Munkad has been recorded under Section 302/149 IPC and has been
sentenced, inter-alia, under the aforesaid sections with lifer.

30. Before parting with the judgment, we may summarize that the prosecution has
been able to prove the charges against the present appellants beyond reasonable doubt and it
is proved that the incident in question was caused by the accused persons including the
present appellants on 30.09.1980 at 6.00 p.m. in the forest of village Dayalpur and the very
motive for commission of the offence was non settlement of criminal dispute in another
matter which took place on 05.09.1980 between the two sides and had culminated into
offence of death of Amba Prasad.

31. Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra 2011
Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows:
3 All. Fakira & Ors. Vs State Of U.P.
121

"In Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673; (2010
AIR SCW 3707), this Court held that mere fact that the witnesses were
related to the deceased cannot be a ground to discard their evidence. It was
further held that when the eyewitnesses are stated to be interested and
inimically disposed towards the accused, it has to be noted that it would not
be proper to conclude that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the evidence has to be weighed
pragmatically and the court would be required to analyse the evidence of
related witnesses and those witnesses who are inimically disposed toward the
accused. After saying so, this Court held that if after careful analysis and
scrutiny of their evidence, the version given by the witnesses appears to be
clear, cogent and credible, there is no reason to discard the same."

 It has been further observed in Waman (supra) that relationship cannot be a
factor to affect the credibility of a witness. The evidence of a witness cannot
be discarded solely on the ground of his relationship with the victim of the
offence. The plea relating to relatives' evidence remains without any
substance in case the evidence has credence and it can be relied upon. In such
a case the defence has to lay foundation if plea of false implication is made
and the court has to analyse evidence of related witnesses carefully to find
out whether it is cogent and credible. The same view has been reiterated in
State of U.P. Vs. Naresh and others (2011) 4 SCC 324.

32.