# Firoz v. State of U.P

- **Citation:** (2023) 4 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-28
- **Case number:** Jail Appeal No. 147 of 2021
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/firoz-v-state-of-u-p-47622
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 - The Code of Criminal
Procedure, 1973 - Section 161 - Trial
court convicted - Rigorous imprisonment -
Appeal against conviction - As per FIR -
On
03.10.2017
at
about
3:00
p.m.
complainant's wife (deceased) and his
son (appellant) were in the house -
Appellant was asking money from his
mother, she said that she had no money
for his 'Awaragardi' - On refusal, appellant
started 'Maar-peet' with her due to which
she died - Trial court framed charge -
Held, PW-1 as only eye witness of the
occurrence, in his examination-in-chief he
supported prosecution version - Cross
examination of PW-1 was recorded after
17 days, turned hostile - PW2, PW-3 and
PW-4 are witnesses of inquest report, rest
are formal witnesses - Testimony of
hostile witness can't be rejected in toto
only on basis of hostility but it may be
accepted as far as it supports the case of
prosecution - Although PW-1 has denied
his presence at the place of occurrence in
his cross examination and St.d that he did
not see the occurrence, appellant is son
of PW-1 and love and affection with the
974 INDIAN LAW REPORTS ALLAHABAD SERIES
same can be a reason to become hostile -
Deceased sustained only a single blow on
her head and weapon used in crime is
'Danda' - Appellant gave a single blow of
'Danda' to her - Hence, appellant had no
intention to kill, but he had knowledge
that by inflicting such injury death could
be caused, trial court rightly convicted.
(Para 1, 2, 3, 10, 11, 12, 16, 23)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

4 All. Firoz Vs. State of U.P.
973
of deterrence and correction would be
served
by
reducing
the
period
of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
Judgments in Pravat Chandra Mohanty
v. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

23. All others judgments which were
pressed into service by the learned counsel
for the appellants are not discussed as that
would be repetition of what we have
decided.

24. We come to the definite conclusion
that the death was due to septicemia. The
judgments cited by the learned counsel for
the appellants would permit us to uphold our
finding which we conclusively hold that the
offence is not under Section 302/149 of I.P.C.
but is culpable homicide not amounting to
murder falling under Section 304(I) I.P.C.,
sentence of all the accused appellants is
reduced to the period they have already
undergone. The fine is reduced to Rs.2,000/-
each to be paid to the original complainant as
compensation within eight weeks from today,
failing which further incarceration of three
months is ordered. The Jail authority would
release
the
accused-appellants
namely,
Subhas and Gautam if not wanted in any
other offence. The accused-appellants already
on bail need not surrender but would deposit
the fine within eight weeks from today.

25. Appeal is partly allowed. Record and
proceedings be sent back to the Court below
forthwith.

26. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 4 ILRA 973
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 147 of 2021

Firoz ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Deepesh Kumar Ojha (A.C.),
Mrs. Seema Pandey

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

Criminal Law - Indian Penal Code, 1860 -
Section 302 - The Code of Criminal
Procedure, 1973 - Section 161 - Trial
court convicted - Rigorous imprisonment -
Appeal against conviction - As per FIR -
On
03.10.2017
at
about
3:00
p.m.
complainant's wife (deceased) and his
son (appellant) were in the house -
Appellant was asking money from his
mother, she said that she had no money
for his 'Awaragardi' - On refusal, appellant
started 'Maar-peet' with her due to which
she died - Trial court framed charge -
Held, PW-1 as only eye witness of the
occurrence, in his examination-in-chief he
supported prosecution version - Cross
examination of PW-1 was recorded after
17 days, turned hostile - PW2, PW-3 and
PW-4 are witnesses of inquest report, rest
are formal witnesses - Testimony of
hostile witness can't be rejected in toto
only on basis of hostility but it may be
accepted as far as it supports the case of
prosecution - Although PW-1 has denied
his presence at the place of occurrence in
his cross examination and St.d that he did
not see the occurrence, appellant is son
of PW-1 and love and affection with the
974 INDIAN LAW REPORTS ALLAHABAD SERIES
same can be a reason to become hostile -
Deceased sustained only a single blow on
her head and weapon used in crime is
'Danda' - Appellant gave a single blow of
'Danda' to her - Hence, appellant had no
intention to kill, but he had knowledge
that by inflicting such injury death could
be caused, trial court rightly convicted.
(Para 1, 2, 3, 10, 11, 12, 16, 23)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Krishna Chand Vs St. of Delhi reported in
A.I.R. 2016 Supreme Court 298

2. Krishna Mochi Vs St. of Bihar reported in
(2002) 6 SCC 81

3. St. of U.P. Vs Ramesh Mishra & anr.reported
in A.I.R.1996 SC 2766

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This criminal appeal has been filed
by the appellant against the judgment and
order of Additional Sessions Judge, Court
No. 8, Bulandshahr passed on 17.10.20219
in Session Trial No. 257 of 2018 (State of
U.P. Vs. Firoz) arising out of Case Crime
No. 519 of 2017, under Section 302 I.P.C.,
Police
Station-
Aurangabad,
District-
Bulandshahr by which learned trial court
convicted and sentenced the appellant for
seven years rigorous imprisonment and Rs.
3000/-
fine
(Three
months
rigorous
imprisonment in default of fine) under
Section 304 Part (2) I.P.C.

2. The brief facts of the case are that the
complainant Munna submitted written report at
Police
Station-
Aurangabad,
District-
Bulandshahr on 03.10.2017 stating that on that
day at about 3:00 p.m. his wife Akbari and his
son Firoz were in the house. Firoz was asking
money from his mother Akbari then Akbari
said that she had no money for his
''Awaragardi'. On refusal Firoz started ''Maarpeet' with his mother Akbari due to which
Akbari died. Her dead body is lying in the
house.

3. On the basis of above report the Case
Crime No. 519 of 2017 was registered at Police
Station- Aurangabad, District- Bulandshahr
under Section 302 I.P.C. After investigation,
Investigating Officer submitted charge sheet
under Section 302 I.P.C. Learned trial court
framed charge under Section 302 I.P.C. against
the appellant Firoz and he was put on trial.
After trial learned trial court found offence
under Section 304 Part (2) I.P.C. proved and
appellant was convicted and sentenced under
Section 304 Part (2) I.P.C. for seven year.
Hence this appeal.

4. Heard Shri Deepesh Kumar Ojah
learned Amicus Curiae for appellant and Shri
Arun Kumar Singh learned A.G.A. for State
and perused the record.

5. Learned counsel for appellant made
submission that appellant has been falsely
implicated in this case. All the witnesses in this
case are hostile. It is further argued that PW-1
Munna was examined by trial court, he has
turned hostile and did not support the
prosecution case. During his cross examination,
he has denied from this statement recorded by
Investigating Officer under Section 161 Cr.P.C.
It is also further argued that PW-1 Munna has
also the informant of this case but he has said in
his statement that he put his thumb impression
on plain paper and one Khalid wrote the report
on that paper because he is illiterate. No other
witness of fact has been produced by
prosecution. In this way there is no evidence
against the appellant and trial court wrongly
convicted him.

6. Learned counsel for appellant also
said that it has come in the evidence of
4 All. Firoz Vs. State of U.P.
975
PW-1 Munna that his wife was cutting
vegetables by sitting under the handle of
hand-pump. When she rose up, the handle
hit on her head and she got fatal injury. It is
also argued that Dr. K.K. Singh conducted
the postmortem of deceased Akbari and
prepared
postmortem
report.
He has
examined as PW-7. He has also given
opinion in his cross examination that injury
sustained by the deceased could be the
result of hit the head by hard and blunt
object such as the handle of hand-pump.
With this argument learned counsel prayed
for allowing the appeal and acquittal of
appellant.

7. No other argument was advanced
by appellant.

8. Learned A.G.A. submitted that
PW-1 Munna is informant of this case, in
his examination-in-chief he has proved the
F.I.R. and in cross examination he has
turned hostile out of love and affection of
his son. It is further submitted that it is not
worth believing that any lady will cut
vegetables by sitting under the handle of
hand-pump. She could sit near hand-pump
but it was not natural to sit under the handle
of hand-pump. It is the story fabricated by
PW-1 to save his son. Learned A.G.A.
further argued that appellant remained
absconded for so many months after the
occurrence. His conduct also shows that he
is guilty of the offence and learned trial
court has rightly convicted the appellant.
Hence appeal be dismissed.

9. Prosecution case is that Munna, the
informant, lodged first information report
at police station stating that his son Firoz
was asking money from his mother (wife of
informant). On her refusal, Firoz started
''Maar-peet' with her due to which she
sustained fatal injuries and died. This
written report was submitted by Munna
which
is
Exhibit
KA-1.
During
investigation it was found that deceased
Akbari was hit by ''Danda' which was
recovered by Investigating Officer on the
pointing out of Firoz from his house and
recovery
memo
Exhibit
KA-11
was
prepared.

10. Prosecution produced informant
Munna as PW-1 who is said to be only eye
witness
of
the
occurrence.
In
his
examination-in-chief
PW-1
Munna
supported the prosecution version and
exactly repeated the contents of first
information report. He has proved the
contents of first information report in his
statement
and
admitted
his
thumb
impression on that. His cross examination
could not be recorded on the same day and
it was deferred. Cross examination of PW-1
was recorded nearly after 17 days in which
PW-1
turned
hostile.
In
his
cross
examination he has said that at the time of
said occurrence he was out of home and
accused did not ask money from his mother
in his presence nor he committed any
''Maar-peet' with his mother. PW-1 has
further said that at the time of occurrence
his wife Akbari was cutting vegetables by
sitting under the handle of hand-pump
when she rose up handle of hand-pump hit
on her head. On making cross examination
by Additional District Government counsel,
PW-1 said that Investigating Officer did
not record his statement under Section 161
Cr.P.C. PW-1 has also stated that appellant
was falsely implicated by scribe of F.I.R.
Mohd. Khalid and other villagers due to
any enmity.

11. There is no other eye witness in
this case. Other witness as PW-2, PW-3
and PW-4 are witnesses of inquest report,
rest of the witnesses are formal witnesses.
976 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Learned counsel for appellant has
mainly put his argument on the basis of
hostility of informant PW-1 Munna.
Learned trial court has very carefully and
cautiously scrutinized the evidence of PW1 because if witness has turned hostile, his
testimony cannot be brushed side. It is
settled law that the testimony of hostile
witness cannot be rejected in toto only on
the basis of hostility but it may be accepted
as far as it supports the case of prosecution
or defence. In Krishna Chand Vs. State of
Delhi reported in A.I.R. 2016 Supreme
Court 298, the Hon'ble Supreme Court has
stated that the mere fact that witness is
turned hostile by the party calling him and
allowed to be cross examined does not
make him unreliable witness so as to
exclude his evidence from consideration
altogether.

13. In Krishna Mochi Vs. State of Bihar
reported in (2002) 6 SCC 81, It was held that it
is matter of common experience that in recent
times there has been sharp decline of ethical
values in public life even in developed
countries much less developing one, like ours,
where the ratio of decline is higher. Even in
ordinary cases, witnesses are not inclined to
depose or their evidence is not found to be
credible by courts for manifold reasons.

14. Hon'ble Apex Court has held in State
of U.P. Vs. Ramesh Mishra and another
reported in A.I.R.1996 SC 2766 that it is
equally settled law that the evidence of hostile
witness could not be totally rejected, if spoken
in favour of the prosecution or the accused, but
it can be subjected to closest scrutiny and that
portion of the evidence which is consistence
with the case of the prosecution or defence
may be accepted.

15. Hence it is settled law regarding
the evidenciary value of a hostile witness
that reliance can be placed on the evidence
of hostile witness, if court finds that it is
not completely shaken. It is rule of caution
that evidence of hostile witness should be
closely scrutinized and it can be acted upon
if some corroboration is also found because
the courts cannot shut their eyes to the
reality. Court shall not stand as a mute
spectator if a witness becomes hostile and
every effort should be made to bring home
the truth.

16. Learned trial court, after careful
scrutiny of the evidence of PW-1, has
reached the conclusion that his testimony
cannot be set aside as a whole. PW-1
Munna has fully supported the case of
prosecution in his examination-in-chief.
Although PW-1 Munna has denied his
presence at the place of occurrence in his
cross examination and has also stated that
he did not see the occurrence but it has to
be kept in mind that appellant is son of
PW-1 and love and affection with the same
can be a reason to become hostile alongwith any other reason but after being
declared hostile even in cross examination
by Government Advocate, PW-1 Munna
has admitted that appellant Firoz was
asking money from his mother and he was
desperate in asking for money.

17. As far as first information report
is concerned, although in his cross
examination PW-1 has stated that the scribe
of F.I.R. Khalid got his thumb impression
on a blank paper and he does not know
what he had written on it later on. But this
statement of PW-1 cannot be believed
because in his examination-in-chief he has
specifically stated that he had lodged first
information report at Police Station-
Aurangabad regarding the occurrence.
Moreover as per examination-in-chief,
written report paper no 4A/3 was shown to
4 All. Firoz Vs. State of U.P.
977
the informant PW-1 and it was read over to
him. Then he said that it is the same written
report which he had submitted in police
station. He has also admitted his thumb
impression on it. Moreover PW-1 has
further said that this report was written by
Abdul Rashid on his dictation. In this way
PW-1 has legally proved the submission of
written report at police station and its
contents also. Hence despite PW-1 being
turned hostile, his testimony still supports
the prosecution case.

18. PW-1Munna has twisted the
manner of occurrence in cross examination
and has stated that his wife deceased
Akbari was cutting vegetables by sitting
under the handle of hand-pump and when
she rose up, her head hit the handle of
hand-pump and she sustained fatal injuries
but this cooked up story cannot be believed
at
all.
Site
plan
was
prepared
by
Investigating Officer on pointing out of
PW-1 which is Exhibit KA-10. According
to site plan Exhibit KA-10 occurrence took
place in the courtyard of informant's house
while hand-pump is shown to be located
inside the bathroom so it cannot be
believed that a lady will cut vegetable by
sitting under the handle of hand-pump that
too inside the bathroom.

19. Learned trial court has also opined
regarding above version that this was not
possible and this was not worth believing
also. I am fully convinced with the opinion
of learned trial court in this regard.

20. It is also very pertinent to note
that occurrence took place at 3:00 p.m. on
03.10.2017 and first information report was
lodged at 4:00 p.m. on the same day. It
means that F.I.R. was lodged just after one
hour of the occurrence. So there was no
occasion or time with informant to falsely
implicate the appellant. Learned counsel
for appellant has argued that Dr. K. K.
Singh PW-7 said in his statement that
injuries sustained by deceased could be
inflicted by hard and blunt object like
handle of hand-pump. But the perusal of
statement of PW-7 Dr. K. K. Singh shows
that he has stated the injury could be
sustained by hard and blunt object like
handle of hand-pump but it does not mean
that if a lady rises up and her head is hit in
the handle of hand-pump, then she could
sustain fatal injury. The purpose of making
above statement by Dr. K. K. Singh was
that injury could be sustained if handle of
hand-pump is used as hard and blunt object
by force. Hence, I find no force in above
argument of learned counsel for appellant
and
learned
trial
court
has
rightly
appreciated the evidence in this regard that
fatal injury to deceased could not be the
result of hitting the handle of hand-pump in
her head in the way as told by PW-1 in his
cross examination.

21. The testimony of PW-1 Munna
supports and proves the prosecution version
even if he has turned hostile but for seeking
corroboration it is important to consider
some circumstances which took place in
this case. One important circumstance is
that presence of appellant at the date, time
and place of occurrence is not denied by
informant even in his statement. He has
also said asking of money by appellant
from his mother in his statement. It is
another
very
important
circumstance
against the appellant that he did not attend
the funeral/cremation of his deceased
mother. Appellant was arrested after more
than four months of the occurrence because
he was absconded after the occurrence. So
not attending the cremation of his mother
and remaining absconded for more than
four months after occurrence indicates that
978 INDIAN LAW REPORTS ALLAHABAD SERIES
he was absconding to avoid his arrest. This
circumstance
also
goes
against
the
appellant.

22. The informant PW-1 has said that
scribe of F.I.R. Mhd. Khalid took his
thumb impression on a blank paper and
later on had written report on it. As
discussed above, the informant has fully
proved the written report and moreover
informant could not establish any enmity
between the appellant and Mhd. Khalid due
to which Khalid could implicate the
appellant falsely. F.I.R. of this case was
lodged very promptly. The ''Danda' used in
crime was recovered from the house of the
appellant on his pointing out. The injury
sustained by deceased Akbari was single
injury on the right side of her head which
was of sized 4cm x 3cm and it was
contusion. Such type of injury was possible
to be inflicted by ''Danda', recovered from
appellant's house.

23. Perusal of judgment of trial court
shows
that
learned
trial
court
has
scrutinized the testimony of PW-1 very
closely and carefully and I am fully
convinced with the conclusion of learned
trial court holding appellant guilty. Learned
trial
court
sought
very
relevant
corroboration by circumstantial evidence
also in scrutinizing evidence of PW-1. It is
correct that deceased sustained only a
single blow on her head and weapon used
in the crime is ''Danda'. It means appellant
gave a single blow of ''Danda' to his
mother. Hence it can be opined that
appellant had no intention to kill his mother
but he had knowledge that by inflicting
such injury death could be caused. Hence
learned trial court has rightly convicted the
appellant for the offence under Section 304
Part (2) of I.P.C. and sentenced him
accordingly.

24. Hence, I find no merit in this
appeal because learned trial court has
rightly appreciated the evidence on record
and rightly convicted and sentenced the
appellant and appeal is liable to be
dismissed.

25. Accordingly, this criminal appeal
sans merit and is dismissed.
----------
(2023) 4 ILRA 978
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 1141 of 2003

Suneet Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mukul Rakesh, Sheo Prakash Singh

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 376 - Punishment for Rape - By
impugned order, sentenced to rigorous
imprisonment - The Code of Criminal
Procedure, 1973 - Sections 164, 313 -
Appeal against conviction - As per FIR -
On 14.02.2002, daughter of informant
aged about 13 years while returning home
after cutting barseem, accused called her
in khalihan on pretext of picking up a
bundle of paddy - When her daughter
reached there, accused forcibly raped her
- Informant who was nearby digging
carrot roots, he saw accused running
away from khalihan - She told him that
accused raped her - After investigation,
chargesheet filed - Prosecution produced
seven witnesses - Held, in the offence of
rape, the St.ment of prosecutrix is utmost