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

- **Citation:** (2020) 1 ILRA 774
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Criminal Appeal No. 4134 of 2005
- **Bench:** B. Amit Sthalekar, Ali Zamin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fasahat-in-jail-v-state-of-u-p-45282
- **Pages:** 22

## Headnote

Criminal Law - Indian Penal Code -
Sections 302, 504, 506 - Appeal against
conviction.

There was a delay in lodging the F.I.R. which has
led to a coloured version and an exaggerated
story in the FIR. However, in view of the facts of
the case, explaining the delay in lodging the FIR
which we have discussed. (para 47)

The defence has not been able to show what
was the enmity between the prosecution and
the accused. (para 39)

The prosecution has proved its case against the
appellant. (para 40)

Appeal is allowed. (E-2)

List of cases cited: -

## Text

_Characters 0–39,995 of 74,526. This is a partial read: ask again with offset=39995 for what follows._

774 INDIAN LAW REPORTS ALLAHABAD SERIES

In the instant case, as discussed
above, evidence shows that the accusedappellant Santosh Kumar Yadav @ Kariya
has fired a single bullet at deceased, which
resulted to the death of deceased. Any of
the other accused has not caused any
injury what so ever to deceased. Both eye
witnesses (PW-3) Amit Kumar Rawat and
(PW-2) Bhola have also not attributed any
specific role to the accused persons except
that of Santosh Kumar Yadav @ Kariya,
in causing injuries to deceased. Alleged
exhortation attributed to these accused
persons is quite vague. There is no cogent
and categorical evidence to prove alleged
exhortation. Only general allegation has
been made that all the accused-appellants
made exhortation to kill the deceased and
consequently accused-appellant Santosh
Kumar Yadav @ Kariya fired a single shot
at the deceased. It is quite apparent from
evidence that the act of firing at deceased,
attributed to the accused-appellant Santosh
Kumar Yadav @ Kariya, resulting in the
fatal injury, is independently sufficient in
the ordinary course of nature to cause
death of the deceased. Medical evidence
shows that the bullet fired by accusedappellant Santosh Kumar Yadav @ Kariya
was sufficient to cause death of deceased.
Considering entire evidence, accusedappellant Santosh Kumar Yadav @ Kariya
could be convicted under Section 302 IPC.
Thus, so far as accused appellant Santosh
Kumar Yadav @ Kariya is concerned, he
is liable to be convicted under section 302
IPC. Similarly conviction of accusedappellant Santosh Kumar Yadav @ Kariya
under Section 25 Arms Act is based on
evidence and calls for no interference.

30. In view of aforesaid, conviction of
accused-appellant Santosh Kumar Yadav @
Kariya under Section 302/149 IPC is altered to
under Section 302 IPC and sentence of life
imprisonment along with fine is maintained.
Conviction and sentence of accused-appellant
Santosh Kumar Yadav @ Kariya under
Section 25 Arms Act is also affirmed but
sentence of five years rigorous imprisonment
is reduced to three years. However his
conviction and sentence under Section 147
IPC is set aside. Conviction and sentence of
accused-appellants Binnu Srivastava @ Pawan
Srivastava, Pawan Srivastava @ Prakash, Raj
Nath Yadav, Atul Kumar Yadav @ Bhunwar,
Sandeep Rawat @ Rinku, Rahul Rawat and
Prashant Yadav under Section 302/149 and
147 of IPC is set aside. These accusedappellants are stated on bail and thus, no
further order is required in their respect.
Accused-appellant Santosh Kumar Yadav @
Kariya is stated in judicial custody, he shall
serve out remaining sentence.

31. Appeals of accused-appellants
Binnu Srivastava @ Pawan Srivastava,
Pawan Srivastava @ Prakash, Raj Nath
Yadav, Atul Kumar Yadav @ Bhunwar,
Sandeep Rawat @ Rinku, Rahul Rawat and
Prashant Yadav are allowed. Appeal of
accused-appellant Santosh Kumar Yadav @
Kariya is partly allowed in above terms.

32. A copy of this order be sent to
trial court for compliance.
----------
(2020)1ILR 774

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

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

Criminal Appeal No. 4134 of 2005
Connected With
Government Appeal No. 5496 of 2005

Fasahat ...Appellant (In Jail)
1 All. Fasahat Vs. State of U.P.
775
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri T.A. Khan, Sri Dileep Kumar, Sri
Ghanshyam Joshi, Sri Noor Mohammad,
Sri S.M.A. Abdy, Sri Rajrshi Gupta, Sri
Mukhtar Alam, Sri Rizwan Ahmad

Counsel for the Opposite Party:
A.G.A., Sri Ramesh Sinha, Sri Upendra
Upadhyay

Criminal Law - Indian Penal Code -
Sections 302, 504, 506 - Appeal against
conviction.

There was a delay in lodging the F.I.R. which has
led to a coloured version and an exaggerated
story in the FIR. However, in view of the facts of
the case, explaining the delay in lodging the FIR
which we have discussed. (para 47)

The defence has not been able to show what
was the enmity between the prosecution and
the accused. (para 39)

The prosecution has proved its case against the
appellant. (para 40)

Appeal is allowed. (E-2)

List of cases cited: -

1. Shahid Khan Vs St. of Raj. (2016) 4 SCC 96

2. St. of U.P. Vs. Satish (2005) 3 SCC 114

3. Ganga Singh Vs St. of M.P. (2013) 7 SCC
278

4. Shardul Singh Vs. St. of Hary. (2002) 8 SCC
372

5. Ravindra Kumar Vs. St. of Punj., (2001) 7
SCC 690

6. St. of U.P. Vs. Baburam (2000) 4 SCC 515

7. Thaman Kumar Vs. St. of U.T. of
Chandigarh, (2003) 6 SCC 380
8. Yunis alias Kariya Vs. St. of M.P. (2003) 1
SCC 425

9. Shivaji Genu Mohite Vs. The St. of Mah.
(1973) 3 SCC 219

10. Rajagopal Vs. Muthupandi alias Thavakkalai
and Others (2017) 11 SCC 120

11. Balveer Singh Vs St. of M.P. 2019 (108)
ACC 317

12. Jagdish Murav Vs St. of U.P. and Ors,
(2006) 12 SCC 626

13. Meharaj Singh Vs St. of U.P., (1994) SCC
(Crl) 1390

14. Mahendra Pratap Singh Vs St. of U.P.
(2009) 11 SCC 334

15. Shripathi & ors. Vs St. of Karnat., (2009) 11
SCC 660

16. Suresh Vs. St. of UP, AIR 2001 SC 1344

17. Privy Council in Mahboob Shah Vs. Emperor
[AIR 1945 PC 118]

18. Goudappa & ors. Vs. St. of Karnataka,
(2013) 3 SCC 675

19. Jai Bhagwan & ors. Vs. St. of Har., (1999)
3 SCC 102

20. Ramesh Singh Alias Photti Vs St. of A.P.,
(2004) 11 SCC 305

21. Murari Thakur & anr. Vs St. of Bihar,
(2009) 16 SCC 256

22. Asif Khan Vs St. of Maha. & anr., (2019) 5
SCC 210

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. The Criminal appeal no. 4134 of
2005 has been filed against the judgment
and order of the trial court dated
30.08.2005 passed by the Special Session
Judge, J.P. Nagar in Sessions Trial No.
776 INDIAN LAW REPORTS ALLAHABAD SERIES
231 of 2004, Case Crime No. 244 of 2004
(State Vs. Fasahat & others) under
Sections 302, 504, 506 IPC, Police
Station-Said Nagli, District-J.P. Nagar
whereby the appellant Fasahat has been
convicted under Section 302 of the Indian
Penal Code and sentenced to undergo
imprisonment for life with a fine of
Rs.10,000/- and in case of default further
imprisonment of three years.

2. The Government Appeal no. 5496
of 2005 has been filed by the State against
the judgment and order of the trial court
dated 30.08.2005 passed by the Sepcial
Sessions Judge, J.P. Nagar in Sessions
Trial No. 231 of 2004, Case Crime No.
244 of 2004 (State Vs. Fasahat & others)
under Sections 302, 504, 506 IPC, Police
Station-Said Nagli, District-J.P. Nagar
whereby
the
accused-respondents
Jamshed, Tanveer, Dilshad have been
acquitted of the charges.

3. Briefly stated the facts of the case,
as per the report of the informant Khaliq
Ahmad are that on 01.05.2004 at about 4
o' clock in the evening Fahim Ahmad,
brother of the informant was sitting in his
shop when the accused Fasahat, Dilshad,
Jamshed and Tanveer came to the shop
and out of these persons Jamshed, Tanveer
and Dilshad caught hold of the deceased
Fahim Ahmad while Fasahat with the
intention to kill, stabbed Fahim Ahmad
with such force that his intestines came
out. It is further mentioned in the FIR that
the informant then took his brother, in an
injured
condition,
to
Hasanpur
for
treatment
under
Dr.
Shiv
Swaroop
Tandon. It is also stated that on the cry
raised by Fahim Ahmad, he alongwith one
Irshad and Munazir came rushing to the
shop and managed to extricate his brother
from the clutches of the accused. The
accused however, made good their escape
hurling abuses and threats to kill. The
report also mentions that Fahim Ahmad,
the injured, was left in the care of other
relatives and the informant has come to
lodge the FIR (Ex. Ka-1). The report was
transcribed by Sri Surendra Singh, Head
Moharrir.

4. The injury report is marked as Ex.
Ka-4 and reads as under:-

"(1) Incised wound 13cmx2cm
cavity deep on LT side margins are clean
cut. Intestine Protrude rite and Bleeding
from the wound present. Kept under
observation.

(2)
Incised
wound
2cx0.5cmx0.2cm on RT hand Palm in
between Rt Index and RT Middle finger 12
cm below to RT wrist joint. Bleeding from
the wound Present.

Opinion: Inj. No. (1) and (2)
caused by sharp edged object. Inj. No. (1)
kept under observation referred to Dist.
Hospital
Moradabad
for
further
management. Patient is in low condition.
Inj. No. (2) simple in nature.

Duration--above injuries fresh."

5. On 4.5.2004 the informant
submitted an application (Ex. Ka-2) before
the Thana In-Charge mentioning therein
that his brother was under treatment at
Hasanpur but on 4.5.2004 he was referred
by the Doctor to be taken to Meerut and
while he was being taken to Meerut and
had travelled just a short distance from
Hasanpur that the injured Fahim Ahmad
died as a result of injuries caused to him
on 01.05.2004 and therefore, the informant
came back to the village with the dead
body and is reporting the matter to the
police.
1 All. Fasahat Vs. State of U.P.
777

6. Inquest was held on 4.5.2004 from
22:15 to 23:30 hrs of the same day and
marked as Ex. Ka-6. Cause of death is
mentioned as due to injuries received on
01.05.2004.

7. The IO sent the body for
postmortem and the postmortem was
conducted on 5.5.2004 at 11:00 am. In the
postmortem report Ex. Ka-3 it is stated
that the death had occurred about 3/4th
day
earlier.
The
postmortem
report
mentions cause of death as septicemia due
to ante mortem injuries.

8. The crime was investigated by SSI
Indu Pal Sharma who visited the spot along
with Head Constable Vijay Pal Singh and
Constable Narayan Das and reached the
Dhakka crossing at about 18:40 hours. On the
way they picked up Ali Waris and one Salim
Ahmad as witnesses and thereafter, they
picked the accused-appellant Fasahat and on
the pointing out of Fasahat the knife used in
the murder was recovered from the Haryana
by-pass crossing after going some distance in
the shrubbery and this recovery was made in
the presence of witnesses Ali Waris and Salim
Ahmad.
The
accused-appellant
Fasahat
informed that this was the same knife which
was used in the assault on deceased Fahim
Ahmad. The recovery memo of the knife Ex.
Ka-11 has been proved by the Investigating
Officer, SSI Indu Pal Singh (third IO), P.W.-7.

9. Ex. Ka-5 is the Site Plan of the
place where the incident occurred. Ex. Ka12 is the Site Plan of the recovery of the
offending knife. Thereupon, chargesheet
was filed against the accused-appellant
under Section 302, 504 and 506 IPC on
20.7.2004.

10. Learned counsel for the appellant
submitted that P.W.-1 was not an eye
witness of the incident and, therefore, the
entire story narrated in the FIR as well as
the testimony of the P.W.-1 is false.

11. The P.W.-1 in his examinationin-chief has stated that on 01.05.2004 at 4
o'clock in the evening when there was
sufficient day light, his brother Fahim
Ahmad was sitting in his cement shop in
Kasba Dhakka. The accused-appellant
Fasahat along with Jamshed, Tanveer and
Dilshad, with common intention, came to
the shop where the accused Jamshed,
Tanveer and Dilshad caught hold of Fahim
Ahmad from behind whereas the accusedappellant Fasahat stabbed Fahim Ahmad
with a knife with the intention to kill and
as a result of stabbing the intestines of
Fahim Ahmad came out. The witness
along with Irshad and Munazir rushed to
the shop and exhorted the accused and
extricated Fahim Ahmad from the hands of
the accused. Thereafter, they took Fahim
Ahmad to the Hasanpur District Hospital
and from there they took him to Dr. Shiv
Swaroop Tandon for private treatment. On
4.5.2004, Dr. Shiv Swaroop Tandon
referred the injured Fahim Ahmad for
further treatment to Meerut whereupon the
witness took Fahim Ahmad to proceed to
Meerut and while on way just after they
had left Hasanpur, Fahim Ahmad died as a
result of injuries received by him.

12. In cross examination, the P.W.-1
further stated that only Fasahat had a
weapon whereas the other accused did not
carry any weapon. He also stated that
Jamshed had grabbed the deceased Fahim
Ahmad from behind whereas Dilshad had
caught hold of his hands and Tanveer had
caught hold of his legs. Since he has
described the incidence in detail and his
testimony from cross-examination is found
intact, therefore, we do not find substance
778 INDIAN LAW REPORTS ALLAHABAD SERIES
in the contention of learned counsel for the
appellant that he is not eye witness and
entire story narrated in F.I.R. and his
testimony is false.

13. The learned counsel for the
appellant submitted that as per the
statement of P.W.-1 when he reached the
site, the deceased had already fallen from
the chair which would suggest that this
witness had not seen as to which of the
accused had stabbed Fahim Ahmad and,
therefore, he was not an eye witness to the
incident and had arrived subsequently at
the spot.

14. The submission of the learned
counsel is without any substance since the
P.W.-1 has described the incidence in
detail that when he entered the shop the
accused Tanveer had caught the deceased
by his legs whereas Dilshad had caught his
hands and Jamshed was holding him from
behind. In his cross examination he has
further stated that he was at the spot when
the incident occurred and that he, Irshad
and Munazir were immediately present
there and a crowd gathered later on and
when he reached the spot the accused were
assaulting his brother Fahim Ahmad. The
witness has further repeated that when he
reached the shop he found that Dilshad
and Jamshed had caught hold of his
brother and at the time when stabbing took
place his brother was standing. He has
described the weapon whose handle was of
aluminum and that when he exhorted the
accused, they ran away from the spot.

15. Referring to the site plan (Ex.
Ka-5), learned counsel for the appellant
submitted
that
Khaliq
Ahmad,
the
informant, whose shop was not in front of
the shop of the deceased Fahim Ahmad,
could not have seen the incidence and he
was not an eye witness. However, from the
site plan we find that there is not much
distance between the shop of the deceased
and that of the P.W.-1 and in any case, the
incident was a broad day light incident in
the summer of 01.05.2004 at 4:00 PM and
therefore, it cannot be said that P.W.-1 had
not witnessed the incident. We find the
testimony of P.W.-1 to be consistent with
the narration of facts as stated in the FIR.
We also find from the postmortem report
that Dr. Iqbal Hussain who first examined
the deceased has clearly mentioned that
injury no.1 was 13cm long with 10 stitches
4cm above the navel. Injury no. 2 was 11
cm with several minor injuries 2 cm under
the skin. Injury no. 3 was 2cm x 1 cm and
10 cm above the hip joint. Injury no.4 was
an injury caused to the hand and was 1 cm
x 1⁄2 cm deep. In his testimony P.W.-3 has
confirmed that the injury no.1 could have
been caused by stabbing with a knife and
that injury no.2 which is a tailing wound
could have been caused while removing
the knife from the body by the tip of knife.
Injury no.4 could have been caused by a
knife when somebody is trying to prevent
the injury with his hands. The learned
counsel for the appellant referring to the
statement of the Doctor P.W.-3 submitted
that if the injury no.2 could have been
caused by a harrow it would mean that it
was not caused by a knife as alleged in the
FIR and in the testimony of P.W.-1. We
are not inclined to accept the submission
of the learned counsel for the appellant for
the reason that this was only a suggestion
of the P.W.-3 Dr. Iqbal Hussain, who has
also stated that he has not seen the harrow.
On the other hand, the P.W.-3 is quite
clear and emphatic that the injury no. 1
which was 13 cm long could have been
caused by a knife and the injury no. 2
could also have been caused while
removing the knife from the body and the
1 All. Fasahat Vs. State of U.P.
779
injury no.4 to the hand could have been
caused by a knife when somebody is
trying to hold the knife. Thus, in our
opinion, the testimony of P.W.-1 stands
corroborated by the postmortem report and
the statement of Dr. Iqbal Hussain P.W-3
who has proved the postmortem/injury
report.

16. The learned counsel for the
appellant next submitted that the statement
of P.W.-2 Irshad who is stated to be an eye
witness was recorded after four days and,
therefore, Irshad was a tutored witness and
not
an
eye
witness,
therefore,
his
testimony was wholly unreliable and
conviction of the accused could not have
been based on such a testimony. Reliance
has been placed upon a judgement of the
Supreme Court in (2016) 4 SCC 96
Shahid Khan Vs State of Rajasthan. In
the said judgement the Supreme Court has
held that where the statement of P.W.-24
and 25 (in that case) were recorded after
three days of the occurrence and no
explanation was forthcoming as to why
they were not examined for three days
coupled with the fact that the police had
not been able to show as to how they came
to know that these witnesses saw the
occurrence,
therefore,
the
delay
in
recording the statement casts a serious
doubt about their being eye witness to the
account. The Supreme Court further held
that P.W.-24 and 25 in view of their
unexplained silence and delayed statement
to the police do not appear to be wholly
reliable witnesses. The Supreme Court has
further held that there is no corroboration
of
their
evidence
from
any
other
independent source either and on these
facts the Apex Court found it rather unsafe
to rely upon their evidence only to uphold
the conviction and sentence of the
appellants.

17. At this stage, we may advert to
the testimony of P.W.-2 Irsahd. P.w.-2
Irshad is one of the persons named in the
FIR alongwith the informant and one other
person Munazir who had witnessed the
incident. This witness in his testimony has
clearly outlined that he and Munazir were
sitting in the Sweetmeat shop of one Salim
when the accused Fasahat, Jamshed,
Tanveer and Dilshad came there from the
west with common intention and these
persons and the accused entered the shop
of the deceased Fahim Ahmad. Accused
Fasahat had a knife in his hand. The
accused Jamshed, Tanveer and Dilshad
caught hold of Fahim Ahmad whereas
Fasahat with the intention to kill Fahim
stabbed him in his stomach with the knife
with the result that Fahim's intestines came
out. He has further described that Fahim
tried to hold the knife as a result of which
he received injuries in his palm. He has
also stated that he has witnessed this
incidence in the presence of Khaliq
Ahmad (informant) and Munazir. He also
stated that they exhorted the accused and
extricated Fahim from the clutches of the
accused. Thereafter, the witness along
with others put Fahim Ahmad in an
Ambassador car and took him away. He
has also stated that Fahim Ahmad died as a
result of injuries received by him. In his
cross examination, this witness has further
stated that the incident was a broad day
light incident which occurred at 4:00 PM
on 01.05.2004 and as soon as they heard
the shouting, he, Munazir and Khaliq
Ahmad (informant) reached the shop, the
deceased was in the shop. When he
reached the spot Fahim Ahmad was
standing when he was stabbed in the
stomach. Other than the accused Fasahat
none of the other accused carried any
weapon. After receiving the injuries, the
deceased collapsed and fell down in the
780 INDIAN LAW REPORTS ALLAHABAD SERIES
shop. He had received injuries in his
stomach and his right hand. This witness
has further stated that his statement was
recorded by the police on the fourth day.

18. We find that P.W.-2 Irshad has
been named in the F.I.R as a person who
alongwith the informant and one Munazir
rushed to the shop as soon as they heard
some noise in the shop. We also find from
his statement that the witness had also
made a statement to that effect and has
described the incidence in the same
manner as described by the P.W.-1 that
accused Dilshad, Tanveer and Jamshed
had caught hold of Fahim Ahmad and it
was accused Fasahat who had stabbed
Fahim in the stomach. Thus, P.W.-2 is the
person who has been named in the FIR at
the very first instance and therefore, even
if his testimony was recorded four days
later it cannot be said that he was a tutored
witness nor under the circumstances can it
be said that he was not an eye witness of
the incident rendering his testimony as
unreliable. The testimony of P.W.-2 is
consistent and corroborates with the
testimony of P.W.-1, the injury report Ex.
Ka-4 and the postmortem report Ex. Ka-3.
It is not a case of as to how the police
came to know that this witness saw the
occurrence. The incident of stabbing
occured on 01.05.2004 whereas the injured
died of his injuries on 4.5.2004. P.W.-2
has been named as a witness in the F.I.R.
lodged on the date of stabbing itself. The
Supreme Court in State of U.P. Vs. Satish
(2005) 3 SCC 114 in paragraph 18 has
held as under:-

"18.
As
regards
delayed
examination of certain witnesses, this
Court in several decisions has held that
unless
the
Investigating
officer
is
categorcially asked as to why there was
delay in examination for the witnesses the
defence cannot gain any advantage
therefrom. It cannot be laid down as a rule
of universal application that it there is any
delay in examination of a particular
witness the prosecution version become
suspect. It would depend upon several
factors. If the explanation offered for the
delayed examination is plausible and
acceptable and the court accepts the same
as plausible, there is no reason to interfere
with the conclusion. (See Ranbir v. State of
Punjab,1973) 2 SCC 444, Bodhraj v. State
of J&K (2002) 8 SCC 45 and Banti v. State
of M.P. (2004) 1 SCC 414)."

19. The Supreme Court in (2013) 7
SCC 278, Ganga Singh Vs State of
Madhya Pradesh, in paragraph 12 and 12
has held as under:-

"12. According to Mr. Mehrotra,
however, PW-5 is not a reliable witness as
she has made a significant omission in her
evidence by not stating anything about the
seizure of the blouse, dhoti and broken
bangles which were made in her presence.
But we find that no question has been put
to PW-5 in cross-examination with regard
to seizure of the blouse, dhoti and broken
bangles in her presence. If the appellant's
case was that PW-5 cannot be believed
because she made this significant omission
in her evidence, a question in this regard
should have been put to her during her
cross-
examination.
To
quote
Lord
Herschell, LC in Browne vs. Dunn [(1894)
6 R 67]:

"......it seems to me to be
absolutely essential to the proper conduct
of a cause, where it is intended to suggest
that a witness is not speaking the truth on
a particular point, to direct his attention to
the fact by some questions put in cross
examination showing that the imputation
1 All. Fasahat Vs. State of U.P.
781
is intended to be made, and not to take his
evidence and pass it by as a matter
altogether unchallenged, and then, when it
is impossible for him to explain, as
perhaps he might have been able to do if
such questions had been put to him, the
circumstances which it is suggested
indicate that the story he tells ought not to
be believed, to argue that he is a witness
unworthy of credit."

13. Section 146 of the Indian
Evidence Act also provides that when a
witness is cross-examined, he may be
asked any question which tend to test his
veracity. Yet no question was put to PW-5
in cross-examination on the articles seized
in her presence. In the absence of any
question with regard to the seizure of the
blouse, dhoti and broken bangles in
presence of PW-5, omission of this fact
from her evidence is no ground to doubt
the veracity of her evidence."

20. In the instant case with regard to
the delayed examination of the witness
Irshad no question has been put by the
defence to the Investigating Officer,
therefore, in view of the finding of the
Hon'ble Apex Court in the above case
defence cannot gain any advantage on the
basis of delayed examination of the
witness Irshad.

21. In the circumstances, we find that
the judgement of the Supreme Court in the
case of Shahid Khan has no application to
the facts of the present case.

22. The case was investigated by SI
Mahendra
Singh
P.W.-6
who
first
investigated the matter on 01.05.2004. The
Investigating Officer Mahendra Singh
(First IO) has prepared the Case Diary and
he recorded the statement of Head
Moharrir Surendra Singh as well as the
statement of informant Khaliq Ahmad and
also prepared the Site Plan (Ex. Ka-5). In
his examination-in-chief he has stated that
on 03.05.2004 he made entries of the
medical report in the Case Diary and after
the expiry of the injured victim, Fahim
Ahmad, Section 302 was also added in his
report
and
the
panchayatnama
was
prepared Ex. Ka-5 which has been proved
by him. He has proved the photo of the
dead body (Ex. Ka-7) as well as the
recovery. He has proved that the case
crime no. was registered in his presence
and he recorded the statement of the
informant on 2.05.2004. In his cross
examination the Investigating Officer has
stated that on the date of the incident i.e.
01.05.2004 the informant came to the
Thana at 4:45 PM and thereafter he first
went to inspect the site on the direction of
the SO and returned after two hours and
during this time he also raided a few
places and searched for the accused. He
also stated that the informant came to the
Thana again at 9:30 PM when the report
was written down. He also stated that the
informant had stated that he was informed
by somebody that his brother had been
stabbed and thereafter, he reached the
crime spot. The Investigating Officer
P.W.-6 also stated that the sweetmeat shop
is hardly 8-10 steps from the crime spot.
This witness has further stated that
thereafter, he was transferred from that
police station.

23. The investigation was next
carried out by P.W.-5 Arun Kumar Verma,
IO (second) who in his examination-inchief has stated that on 04.05.2004 he was
posted as SO Thana Saidnagli and on
01.05.2004 Khaliq Ahmad had lodged a
report with regard to the incident.
Thereafter, during treatment the injured
Fahim Ahmad died and therefore, a second
782 INDIAN LAW REPORTS ALLAHABAD SERIES
report was lodged on 4.05.2004 (Ex. Ka-2)
regarding offence under Section 302, 504,
506 IPC. He has also stated that the initial
Case Crime no. 244 of 2004 under Section
307, 504, 506 IPC was lodged in his
presence in the Thana and the matter at
that time was investigated by SI Mahendra
Singh and that he had also gone with the
SI Mahendra Singh to the crime spot
which is about 5 Kms from the Thana. He
has also stated that the deceased had two
cement shops; in one shop he used to sit
and the other shop was being used as a
store. In the shop there were chairs. He has
also stated that the crime spot was in the
village Dhakka in the main bazaar and
there were shops adjacent to the crime
spot. This witness had also stated that
Fahim was first treated in the Primary
Health Centre and then taken to Dr. Shiv
Swaroop Tandon. In cross examination
this witness has stated that at the site there
was no blood. He also stated that he was
informed by the informant that the injured
Fahim Ahmad was taken from Hasanpur
and that one Farman was holding the
injured.

24. The Investigation, thereafter, was
taken over by SSI Indu Pal Sharma, IO
(third) P.W.-7 who has proved the
recovery of the offending knife and stated
that the knife was recovered on the
pointing out of the accused Fasahat in a
shrubbery whereupon a recovery memo
was made by him Ex. Ka-11 which has
been proved by the IO Indu Pal Sharma.
He has further stated that he did not send
the
knife
to
the
Forensic
Science
Laboratory for testing since the knife had
been washed clean. The learned counsel
for the appellant assailing the testimony of
the Investigating Officer Mahendra Singh
stated that when the said IO reached the
crime spot he did not find any blood
stains, therefore, the incident of stabbing
did not occur at all and the appellant has
falsely been accused of the crime. The
submission of the learned counsel for the
appellant cannot be accepted for the reason
that the witness P.W.-1 and witness P.-W.-
2 who are the eye witnesses of the incident
have both clearly stated that soon after the
stabbing and after the accused and coaccused ran away from the spot one
Haseeb had removed his shirt and tied it to
the wound to prevent bleeding. In our
opinion, this would account for the fact
that there may not have been any blood on
the spot.

25. P.W.-4 Dr. J.P. Singh, the
incharge Medical Officer, Primary Health
Centre, Hasanpur in his examination-inchief has proved the injury report Ex. Ka-4
which was prepared by him at the time
when the deceased Fahim Ahmad had
been brought to the Primary Health Centre
in an injured condition for medical
checkup. He has described the injuries as
follows:-

1& dVk gqvk ?kko 13 ls0eh x 2 ls0eh0
x isV dh dSosVh rd xgjk tks fd isV ds Åijh
fgLls ls e/; ykbZu ds ck;h vksj nkfguh rjQ dks
ukch ls 3 ls0eh0 Åij FkkA pksV ds fdukjs lkQ dVs
gq;s FksA vk¡rs ckgj fudy vk;h FkhA ?kko ls jDr cg
jgk FkkA pksV dks tsjs fuxjkuh j[kk x;k FkkA

2& dVk gqvk ?kko 2 ls0eh0 x 0-5
ls0eh0 x 0-2 ls0eh0 nkfgus gkFk ij gFksyh dh rjQ
ls rtZuh m¡xyh o e/;e m¡xyh ds chp rd FkkA
nkfguh dykbZ ls 12 ls0eh0 uhps FkkA ?kko ls jDr
cg jgk FkkA fdukjs lkQ dVs FksA

esjh jk; esa pksV uEcj 1 o 2 fdlh
/kkjnkj gfFk;kj ls vkuh lEHko gSA pksV ua01 dks tsjs
fuxjkuh j[krs gq;s ftyk vLirky eqjknkckn dks jSQj
fd;k x;k FkkA ejht dh gkyr [kjkc FkhA pksV ua0
2 lk/kkj.k fdLe dh FkhA mijksDr pksVs rktk FkhA
nksuks pksVs /kkjnkj Nqjs ls vkuk lEHko gS pksV uEcj
02 ;fn vkneh ds Nqjk ekjk tk;s vkSj vkneh mls
gkFk ls idM+us ij vkuh lEHko gSA pksV ua0 1 ekuo
1 All. Fasahat Vs. State of U.P.
783
thou ds fy;s [krjukd FkhA mijksDr pksVs fnukad
01-05-04 dks 'kke 4-00 cts vkuk lEHko gSA

26. The P.W.-4 has also submitted
his expert opinion stating that the injury
no.1 and 2 as noted above, was possible to
have been caused by a sharp edged
weapon. He has further stated that having
regard to the seriousness of the injury no.1
he had referred the injured for further
treatment
in
the
District
Hospital,
Moradabad since the medical condition of
the injured was bad. The injury no.2
however, was simple. Both the injuries
were fresh. He has also opined that it was
possible for both the injuries to have been
caused by a sharp knife and that injury
no.2 could have been caused if the injured
tried to hold the knife with his hand. Injury
no.1 was stated to be fatal. This witness
has further testified that it is not possible
for these injuries to have been caused by
falling upon a harrow.

27. P.W.-8 Ali Waris who is an
independent witness has proved the
recovery of the knife from the shrubbery
and has also stated that the accusedappellant Fasahat had informed the SO in
his presence that he had caused injury to
Fahim Ahmad with this knife and while
making good his escape he had washed the
knife at a tap near Afzal Tel Depot and
thereafter had thrown the knife at the place
where it was found in the shrubbery. This
corroborates
the
statement
of
the
Investigating Officer (third) Indu Pal
Sharma who has stated that he did not send
the
knife
to
the
Forensic
Science
Laboratory for testing since the knife had
been washed clean. The Site Plan of the
recovery is Ex. Ka-12. Spot marked as ''X'
is shown as the spot where the offending
weapon i.e. knife was found on the
pointing out of the accused. ''XA' is the
spot where the accused is stated to have
handed over the knife to the police. Point
''B' is the spot where the police jeep was
stopped and from where the police and the
accused went in search of the knife. The
single arrows represent the spot where the
police along with accused reached over the
bridge. The double arrow thereafter, marks
the way led by the accused to the spot
where the knife was found. The site plan
Ex. Ka-12 has been proved by the
Investigating Officer, Indu Pal Sharma
P.W.-7.

28. The learned counsel for the
appellant also submitted that the witness
Abid was never examined. The name of
Abid finds mention in the examination-inchief of P.W.-1 Khaliq Ahmad, the
informant who has stated that on the date
of the incident i.e. 01.05.2004 in the
morning the accused had got into an
altercation with the said Abid. Abid in
order to save himself ran into the shop of
his brother Fahim Ahmad, the deceased.
The accused persons followed Abid to the
shop of Fahim Ahmad who scolded the
accused. The accused then threatened
Fahim stating that he would have to face
consequences for protecting Abid and it is
for this reason that the accused with
common
intention
murdered
Fahim
Ahmad.

29. Sri Upendra Upadhayay, learned
counsel for the complainant as well as
learned AGA submitted that motive stood
established as being the incident which
occurred on the day of the incident i.e.
01.05.2004 when the accused with the
intention to assault Abid chased him and
Abid ran into the shop of Fahim to save
himself and Fahim saved Abid from the
accused persons and the accused had
thereupon threatened Fahim with dire
784 INDIAN LAW REPORTS ALLAHABAD SERIES
consequences for saving Abid. This
establishes the motive for the murder of
Fahim by the accused persons though we
may hasten to add that even if Abid was
not produced as a witness to testify to the
occurrence of the incidence that occurred
with him on the morning of 01.05.2004
but then in the facts and circumstances of
the case, the incident being a broad day
light incident having occurred at 4 o' clock
in the afternoon/evening in the summer
month and having witnessed by P.W.-1
and 2 and the facts having been
corroborated
by
the
injury
report,
postmortem report as well as recovery of
the murder weapon having been witnessed
by independed witness Ali Waris P.W.-8
in the presence of Investigating Officer on
the pointing out of the accused and
incident being a day light incident, motive
becomes irrelevant.

30. In the case of Shardul Singh Vs.
State of Haryana (2002) 8 SCC 372, it has
been held that :-

"motive', which is not always
capable of precise proof, if proved, may
lead additional support to strengthen the
probability of the commission of the
offence by the person accused but the
absence of motive does not ipso facto
warrant an acquittal."

31. Similarly, in the case of Ravindra
Kumar Vs. State of Punjab, (2001) 7 SCC
690, the Apex Court has held that-

"It is generally an impossible
task for the prosecution to prove what
precisely
would
have
impelled
the
murderers to kill a particular person. All
that prosecution in many cases could point
to is the possible mental element which
could have been the cause for the murder.
It is therefore not possible to change the
tide on account of the inability of the
prosecution to prove the motive aspect to
the hilt.

32. Similarly in the case of State of
U.P. Vs. Baburam (2000) 4 SCC 515 it
has been held that-

"It is not possible to accept the
view that motive may not be very much
material in cases depending on direct
evidence whereas motive is material only
when
the
case
depends
upon
circumstantial evidence. There is no legal
warrant for making such a hiatus in
criminal cases as for the motive for
committing the crime. Motive is a relevant
factor in all criminal cases whether based
on the testimony of eyewitnesses or
circumstantial evidence. The question in
this regard is whether the prosecution
must fail because it failed to prove the
motive or even whether inability to prove
motive would be weaken the prosecution to
any would be well and good for it,
particularly in a case depending on
circumstantial evidence, for such motive
could then be counted as one of the
circumstances. However, it is generally in
a difficult area for any prosecution to
bring on record what was in the mind of
the respondent. Even if the investigating
officer would have succeeded in knowing it
through interrogations that cannot be put
in evidence by them due to the ban
imposed by law. When the prosecution
succeeded in showing the possibility of
some ire for the accused towards the
victim, the inability to further put on
record the manner in which such ire would
have swelled up in the mind of offender to
such a degree as to impel him to commit
the murder cannot be construed as a fatal
weakness of the prosecution."
1 All. Fasahat Vs. State of U.P.
785

33. Similarly, in the case Thaman
Kumar Vs. State of Union Territory of
Chandigarh, (2003) 6 SCC 380, it has
been held that-

"There is no such principle or
rule of law that where the prosecution fails
to prove the motive for commission of the
crime, it must necessarily result in
acquittal of the accused. Where the ocular
evidence is found to be trustworthy and
reliable and finds corroboration from the
medical evidence, a finding of guilt can
safely be recorded even if the motive for
the commission of the crime has not been
proved.
Hence
in
the
facts
and
circumstances of the case, the absence of
any evidence on the point of motive cannot
have any such impact so as to discard the
other reliable evidence available on
record which unerringly establishes the
guilt of the accused."

34. Similarly, in the case of Yunis
alias Kariya Vs. State of M.P. (2003) 1
SCC 425, it has been held that-

"Failure to prove motive for crime
in our view is of no consequence. The role of
the accused persons in the crime stands clearly
established. The ocular evidence is very clear
and convincing in this case. The illegal acts of
the accused persons have resulted in the death
of a young boy of 18 years. It is settled law that
establishment of motive is not a sine qua non
for proving the prosecution case."

35. In (1973) 3 SCC 219 (Shivaji
Genu
Mohite
Vs.
The
State
of
Mahrashtra)
the
Supreme
Court
in
paragraph 12 has held as under:

"12. As stated earlier, the fact
that the prosecution in a given case has
been able to discover a sufficient motive or
not cannot weigh against the testimony of
any eye-witness. Evidence as to motive
would, no doubt, go a long way in cases
wholly
dependent
on
circumstantial
evidence. Such evidence would form one of
the links in the chain of circumstantial
evidence in such a case. But that would
not be so in cases where there are eyewitnesses of credibility, though even in
such case if a motive is properly proved
such
proof
would
strengthen
the
prosecution case and fortify the court in its
ultimate conclusion. But that does not
mean that if a motive is not established the
evidence of any eye-witness is rendered
untrustworthy."

36. In (2017) 11 SCC 120
(Rajagopal
Vs.
Muthupandi
alias
Thavakkalai and Others) the Supreme
Court in paragraph 14 has held as under:

"14.
Equally,
it
is
well
established that motive does not have to be
established where there is direct evidence.
Given the brutal assault made on PW-1 by
criminals, the fact that witnesses have
turned hostile can also cut both ways, as is
well known in criminal jurisprudence."

37. It was further submitted by the
learned counsel for the respondents that
statement of P.W.-1 should be read as a
whole and it cannot be read piecemeal by
picking up statements made here and
there. He submitted that even if P.W.-1 has
in his cross examination stated that he was
at the crossing on the road marked by X
inside a circle in the Site Plan Ex. Ka-5 but
in the same context he has also stated that
at the time of the incidence he was
standing about 4-5 meters to the east of the
shop
where
the
incident
occurred,
therefore, it cannot be said that P.W.-1
could not have witnessed the murder of
786 INDIAN LAW REPORTS ALLAHABAD SERIES
Fahim Ahmad.