# Gulab & Anr v. State of U.P

- **Citation:** (2022) 2 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-11
- **Case number:** Criminal Appeal No. 2410 of 1985
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulab-anr-v-state-of-u-p-48089
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, Code of Criminal
Procedure, 1973 - Sections 161 ,313 &
437(a), Indian Evidence Act, 1872 -
Sections 134 & 45 - offence of Murder -
Testimony of solitary eye-witness (PW2) - FIR
lodged against the appellants with allegation
that they having enmity with deceased forcibly
lifted him in the field of Jwar crop and murdered
him - Entire prosecution story rests heavily on
testimony of sole eye-witness PW2- on seeing
accused persons with arms, having bodily lifted
the deceased into the field PW-2 escaped from
the place of incident due to fear - He reached to
home after 2 hours whereas an elderly persons
could cover double the distance, in 20 to 25
minutes - this throws serious doubt whether
PW2 was with the deceased or loitering
somewhere else - Another aspect noteworthy is
whether incident occurred between 6 - 6.30 pm
sole
witness
deposed
that
accused
had
'Gandasa', 'Axe' and 'spear' in their hands - In
case of indiscriminate assault ordinarily, injuries
should be found All over body and not only on
the face especially when one of accused claimed
to have pinned down deceased - Size, nature &
2 All. Gulab & Anr. Vs. State of U.P.
103
numbers of injuries mentioned in post mortem
report not relatable either to spear or Gandasa
or Axe - Eye witness is permissible provided his
evidence is free of any blemished or suspicion
and impresses the court as wholly truthful,
reliable and natural Testimony - thus appears to
be doubtful and not worthy. (Para 30, 31, 32,
34, 39, 41, 42, 44, 45)

Criminal Law - Criminal Procedure Code,
1973 - Section 154 - Offence of murder -
Delay in lodging FIR - casts a doubt on the
prosecution
case
-
Informant
received
information about incident from PW 2 (eyewitness) but the FIR was lodged with delay of
five hours - which creates doubt - Eye witness
who saw the incident neither lodged FIR nor
promptly returned home to informed his father
about incident - From the testimony of Inquiry
officers and other witnesses of fact a strong
possibility arises that the FIR was antetimed.(Para 49, 52, 53)

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872 -
Section 45 - offence of murder - scrutiny of
medical evidence - Effect of inconsistency
founds between the inquest report and the post
mortem report in respect of nature, manner and
number of Injuries of deceased which gives
feeling to the court that prosecution has not
come out with clean hands and the case has
been built on strong suspicion than evidence -
as such benefits of doubts goes in favour of
Accused appellants. (Para 54, 55)

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872 -
Section 118 - offence of murder - Testimony
of Chance witness (PW3) - Reliability - Chance
witness had seen accused persons coming out
from Jawar field having weapons in their hands
but he did not see the eye-witness at that time -
Alt

## Text

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102 INDIAN LAW REPORTS ALLAHABAD SERIES
whether
lacunae
in
investigation
is
affecting the object of finding truth.

21. The Hon'ble Apex Court held in
Lakhan Sao Vs. State of Bihar and
another (2009) 9 SCC 82 para 18
appreciation of the evidence in criminal
trial-non recovery of the pistol or spent
cartridges does not detract from the case of
prosecution where the direct evidence is
acceptable.

22. The Hon'ble Apex Court held in
Yogesh Singh Vs. Mahabir Singh and
others (2011) SCC 195 in para 47, mere
non recovery of weapon does not falsify the
case of prosecution where there is ample
unimpeachable evidence.

23. In the present case the prosecution
has been successful in proving its case with
reliable and cogent ocular evidence which
is corroborated with the medical evidence.
The role of the appellant Kapil has been
assigned specific who opened fire and the
bullet hit the stomach of injured Vikas. As
such, the impugned judgment of conviction
of the appellant Kapil for the offence under
section 307 IPC does not bear any infirmity
and same needs no interference.

24. Therefore, in view of reappreciation of the evidence on record this
criminal appeal is hereby dismissed and the
impugned judgment of conviction and
sentnece passed in ST No. 429 of 2015
(State Vs. Kapil and others) arising out of
case crime no. 374 of 2014 P.S. Pilkhuva,
District Hapur is affirmed. The appellant
has to serve out the sentence as awarded by
the court below.

25. Let the copy of judgment/order be
certified to the court below for necessary
information and follow up action.
----------
(2022)02ILR A102
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2410 of 1985

Gulab & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Veeresh Mishra, Sri S.R. Yadav, Sri C.M.
Yadav, Sri K.K. Tripathi, Sri Rajiv Sharma,
Sri Rakesh Prasad, Sri Brijesh Yadav

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, Code of Criminal
Procedure, 1973 - Sections 161 ,313 &
437(a), Indian Evidence Act, 1872 -
Sections 134 & 45 - offence of Murder -
Testimony of solitary eye-witness (PW2) - FIR
lodged against the appellants with allegation
that they having enmity with deceased forcibly
lifted him in the field of Jwar crop and murdered
him - Entire prosecution story rests heavily on
testimony of sole eye-witness PW2- on seeing
accused persons with arms, having bodily lifted
the deceased into the field PW-2 escaped from
the place of incident due to fear - He reached to
home after 2 hours whereas an elderly persons
could cover double the distance, in 20 to 25
minutes - this throws serious doubt whether
PW2 was with the deceased or loitering
somewhere else - Another aspect noteworthy is
whether incident occurred between 6 - 6.30 pm
sole
witness
deposed
that
accused
had
'Gandasa', 'Axe' and 'spear' in their hands - In
case of indiscriminate assault ordinarily, injuries
should be found All over body and not only on
the face especially when one of accused claimed
to have pinned down deceased - Size, nature &
2 All. Gulab & Anr. Vs. State of U.P.
103
numbers of injuries mentioned in post mortem
report not relatable either to spear or Gandasa
or Axe - Eye witness is permissible provided his
evidence is free of any blemished or suspicion
and impresses the court as wholly truthful,
reliable and natural Testimony - thus appears to
be doubtful and not worthy. (Para 30, 31, 32,
34, 39, 41, 42, 44, 45)

Criminal Law - Criminal Procedure Code,
1973 - Section 154 - Offence of murder -
Delay in lodging FIR - casts a doubt on the
prosecution
case
-
Informant
received
information about incident from PW 2 (eyewitness) but the FIR was lodged with delay of
five hours - which creates doubt - Eye witness
who saw the incident neither lodged FIR nor
promptly returned home to informed his father
about incident - From the testimony of Inquiry
officers and other witnesses of fact a strong
possibility arises that the FIR was antetimed.(Para 49, 52, 53)

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872 -
Section 45 - offence of murder - scrutiny of
medical evidence - Effect of inconsistency
founds between the inquest report and the post
mortem report in respect of nature, manner and
number of Injuries of deceased which gives
feeling to the court that prosecution has not
come out with clean hands and the case has
been built on strong suspicion than evidence -
as such benefits of doubts goes in favour of
Accused appellants. (Para 54, 55)

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872 -
Section 118 - offence of murder - Testimony
of Chance witness (PW3) - Reliability - Chance
witness had seen accused persons coming out
from Jawar field having weapons in their hands
but he did not see the eye-witness at that time -
Although he tried to explain his presence on the
spot with explanation that he was going to see
his niece who was ill - but the prosecution failed
to corroborate his testimony with any other
witnesses - PW 3 (Chance witness) failed to
inspire the confidence of Court and as such his
testimony
not
found
worthy
-
Accused
appellants entitled to acquittal.(Para 56, 58)

Criminal Law - Indian Penal Code, 1860 -
Section 302, Indian Evidence Act, 1872 -
Section - 8: offence of murder - effect of false
implication on the ground of enmity - there was
grave enmity between deceased and co-accused
- it is settled law that merely on the ground of
enmity, testimony of an eye witness cannot be
discarded, if there is a ring of truth about it -
but, here entire prosecution case rested only on
the testimony of sole eye-witness who was not
found wholly reliable - Prosecution failed to
prove its case against the surviving appellant
beyond reasonable doubt consequently appeal is
allowed. (Para - 59, 60)

Appeal allowed, appellant is entitled for
acquittal from all the charges. (E-11)

List of Cases cited:

1. Bhimapa Chandapa Hosamani & ors. Vs St. of
Karn. (2006 Vol. 11 SCC 323)

2. Parvat Singh & ors. Vs St. of M.P. (2020 Vol.
4 SCC 33)

3. Amar Singh Vs St. (NCT of Delhi) (AIR 2020
SC 4894)

4. Solanki Chimanbhai Ukabhai Vs St. of Gujrat
(AIR 1983 SC 484)

5. Mukesh & anr. Vs St. (NCT of Delhi) (2017
Vol. 6 SCC)

6. Mukesh Tiwari Vs St. of UP (2021 Vol. 3 ADJ
446 DB)

7. Jarnail Singh Vs St. of Punj. (2009 Vol. 9 SCC
719)

(Delivered by Hon'ble Sameer Jain, J.)

1. The present appeal has been filed
by two appellants, namely, Gulab(appellant
No. 1) and Nanku @ Nanhu (appellant No.
2). The appeal of Nanku @ Nanhu
(appellant No. 2) has been abated, on
account of his death, vide order dated
8.12.2021. Therefore, by way of present
104 INDIAN LAW REPORTS ALLAHABAD SERIES
order, we will decide the appeal filed by
Gulab (appellant No. 1).

2. Appellant- Gulab and three others
were convicted by the trial court under
Section 302 IPC read with section 34 IPC
and awarded life imprisonment vide order
dated 10.9.1985. The other convicted
accused-Ram Awadh and Ram Kripal filed
a separate appeal i.e. Criminal Appeal No.
2408 of 1985, has already been abated on
account of their death, vide order dated
10.9.2018.

Introductory facts

3. Prosecution case was instituted on
a First Information Report (FIR) which was
lodged on 4.9.1980, at about 11:15 pm by
Nabi Baksh (PW-1) against the appellant-
Gulab (surviving appellant) and three
others, under Section 302 IPC, at P.S.
Handia, District Allahabad as case crime
No. 300 of 1980.

4. As per FIR, Nabi Baksh (PW-1) was
the Munshi of Shekh Mohammad Naqi
(deceased) who was Ex-landlord (Zamindar)
having agricultural holdings at Birapur. In
respect of illegal occupation of his holdings
by
Mangal
Yadav
and
his
pattidars
(associates)
Shekh
Mohammad
Naqi
(deceased) had filed a civil suit. Deceased
had won a case up to the stage of High Court
but another case was pending. As a result,
Mangal Yadav and his collaterals used to
threaten him. It is alleged that a day before
the incident, when the informant (PW-1) had
gone to Allahabad in 'pairvi' of a case,
Mangal Yadav told PW-1 that it be conveyed
to the deceased that he (deceased) will have
to face consequences for cases filed against
him. It is alleged that on 04.09.1980 due to
some household work, informant (PW-1)
could not go to Birapur, therefore, he sent his
son Nurul Islam (PW-2) to Birapur with the
deceased who used to go to Birapur on a
daily basis. It is alleged that while the
deceased was returning back with PW-2, near
village Derha, around sunset, PW-2 stopped
for urination whereas Mohd. Naqi (deceased)
moved ahead; soon thereafter, PW-2 heard
shrieks and saw that accused Ram Awadh,
Gulab (surviving appellant), Kripal and
Nanhu, who were having enmity with
Mohammad Naqi (deceased), forcibly lifted
the deceased and took him to the field where
there was standing Jwar crop. Due to fear,
PW-2 ran away and, at about 8 pm, he gave
information to the informant about the
incident, and when the informant (PW-1) and
others arrived at the spot, they found Shekh
Mohammad Naqi lying dead.

5. After lodging the First Information
report (Ext. Ka 5), investigation started and
police arrived at the spot. Investigating
Officer lifted blood stained and plain soil
from the spot and prepared recovery memo
(Ext. Ka 10) and also recovered one
spectacle,
an
umbrella
and
a
stick
(belonging to the deceased) from near the
spot and prepared seizure memo (Ext. Ka
14). Thereafter, inquest report (Ext. Ka-4)
was prepared and the body was sent for
post mortem. On 5.9.1980, at about 3 pm,
post mortem was conducted of which postmortem report (Ex. Ka-16) was prepared
and, after investigation, charge sheet was
submitted
against
appellant-
Gulab
(surviving appellant) and other accused
persons under Section 302 IPC. After
taking cognizance on the charge-sheet, the
case was committed to the court of session
and, on 16.7.1981, charges were framed
against the appellant no.1 (Gulab) and other
accused persons under Section 302 IPC
read with Section 34 IPC. The accused
including
Gulab
(surviving
appellant)
denied the charge and claimed trial.
2 All. Gulab & Anr. Vs. State of U.P.
105

6. Prosecution during trial examined
13 witnesses, out of them Nabi Baksh (PW1)-the informant; Nurul Islam (PW-2)-the
eye witness; Abdul Wahid (PW-3); and
Jadunath (PW-4) are witnesses of fact
whereas rest are formal witnesses.

7. After recording the evidence of
prosecution witnesses trial court examined
appellant- Gulab (surviving appellant)
under Section 313 Cr.P.C. and thereafter,
Umakant (DW-1) was examined as defence
witness. The trial court thereafter, on the
basis of the evidence available on record,
convicted the surviving appellant- Gulab
under Section 302/34 IPC along with other
co-accused persons.

8. We have heard Sri Veeresh Mishra,
learned Senior Counsel assisted by Sri
Brijesh Yadav for surviving appellant
Gulab (appellant no.1); and Sri Amit Sinha,
learned AGA for the State- respondents.

Submissions
on
behalf
of
the
appellant

9. Learned counsel for the appellant
(Gulab) submitted that prosecution failed to
prove its case beyond reasonable doubt and
on the basis of sole eye witness testimony,
conviction of the appellant (Gulab) is not
justified. He submitted that FIR of the
present case was lodged at about 11:15 pm
i.e. after more than 5 hours and prosecution
failed to explain the delay in lodging the
first
information
report.
He
further
contended that the FIR was lodged by Nabi
Baksh (PW-1), who is not an eye witness,
whereas, his son Nurul Islam (PW-2) who
is stated to be an eye witness did not lodge
the report, despite opportunity, this itself
creates doubt as to whether PW-2 was an
eye witness. Sri Veeresh Mishra further
submitted that there are material omissions
and contradictions between the version of
the FIR and in the statement of prosecution
witnesses. He contended that medical
evidence also does not support the ocular
evidence and from the perusal of the entire
evidence on record, it appears, the alleged
eye witness Nurul Islam (PW-2) did not
witness the incident and that, after due
deliberations, the accused including the
surviving appellant- Gulab were implicated
due to previous enmity with Shekh
Mohammad Naqi (deceased). Sri Mishra
submitted that the trial court failed to
properly appreciate the evidence on record
and has wrongly convicted the appellant,
therefore, the order of conviction is liable
to be set aside.

Submission on behalf of the State.

10. Per contra, learned AGA
contended that from the testimony of
Nurul Islam (PW-2), it is proved that the
appellant- Gulab along with other accused
persons committed the murder of Shekh
Mohammad Naqi. He submitted that there
is no material contradiction between the
FIR and the statement of prosecution
witnesses. From the statement of (PW-2)
Nurul Islam it is clear that he witnessed
the incident and saw the appellant- Gulab
having a 'Gandasa' in his hand. He also
submitted that there is no conflict between
the medical evidence and the ocular
evidence and the testimony of Nurul Islam
(PW-2)
stands
corroborated
by
the
testimony of Abdul Wahid (PW-3) who
saw the surviving appellant No. 1 (Gulab)
at the time of incident with other accused
persons when they, with their respective
weapons, were coming out from the Millet
(Jwar) field. Thus, the conviction of the
appellant- Gulab in the present case is
justified and the appeal is liable to be
dismissed.
106 INDIAN LAW REPORTS ALLAHABAD SERIES

11.

Having
noticed
the
rival
contentions and having perused the record
of
the
case,
before
analyzing
the
prosecution evidence, it is necessary to
briefly discuss the prosecution evidence
adduced during trial.

Prosecution witnesses

12. Prosecution examined Nabi Baksh
as PW-1. This witness is the informant of
the case who lodged the first information
report and is the father of alleged eye
witness Nurul Islam (PW-2). This witness
repeated the version of the FIR and stated
that Shekh Mohammad Naqi (deceased)
was
Honorary
Magistrate
and
ExZamindar. He was having agricultural land
in village-Birapur. PW-1 was a servant of
Shekh Mohammad Naqi (deceased) for last
40 years. This witness stated that accusedRam Awadh and Ram Kripal are real
brothers and sons of Mangal Yadav while
Gulab (surviving appellant) and accused
Nanhu are neighbors of accused Ram
Awadh and there is long standing enmity
between
Shekh
Mohammad
Naqi
(deceased) and Mangal Yadav (father of
accused Ram Awadh and Ram Kripal). He
stated that a day before the incident, when
PW-1 was in civil court in connection with
case against Mangal Yadav, father of coaccused Ram Awadh and Ram Kripal,
threats were extended. This witness stated
that on the date of incident i.e. on
04.09.1980, he could not go to Birapur as
he had house repair work to do; therefore,
he sent his son Nurul Islam (PW-2) with
Shekh Mohammad Naqi (deceased). As per
this witness, Shekh Mohammad Naqi
(deceased) used to visit Birapur at about
3:00 pm, post noon. On the date of
incident, after the 'maghrib prayer', when
PW-1 inquired about Shekh Mohammad
Naqi (deceased) and Nurul Islam (PW-2)
he came to know that they have not
returned as yet. As a result, he went on foot
to Birapur. When PW-1 arrived at Birapur,
Devi (not examined) and Jadunath (PW-4)
informed him that Shekh Mohammad Naqi
(deceased) and his son Nurul Islam (PW-2)
had departed even before sunset. After
receiving this information, PW-1 returned
to his house; there, after some time, his son
Nurul Islam (PW-2) arrived and informed
PW-1 that when he and Shekh Mohammad
Naqi (deceased) were returning from
Birapur and were between village-Derha
and Kazipur, PW-2 sat to uninate. In the
meantime, appellant- Gulab (surviving
appellant) and other accused Nanhu, Ram
Awadh and Ram Kripal forcibly lifted
Shekh Mohammad Naqi (deceased) and
took him into the Millet field. According to
PW-1, his son Nurul Islam (PW-2) had
informed him that accused Ram Awadh was
having an axe therefore, he got scared and
ran away. PW-1 stated that after receiving
information from his son Nurul Islam (PW2), he, along with others, visited the spot
and found body of Shekh Mohammad Naqi
lying in the Jwar field. PW-1 stated that he
got the report scribed by Anu, which was
lodged by him. PW-1 proved the written
report as Ex. Ka-1.

13. During cross examination, PW-1
stated that he told the scribe of the FIR,
namely, Anu (not examined), that before
arrival of Nurul Islam (PW-2), he went to
search
for
Shekh
Mohammad
Naqi
(deceased) but, if this fact was not written
by Anu, he can not provide an answer. PW1 further stated that when he first went to
search for the deceased, it was dark and the
sun had already set. PW-1 also stated that
between 6:45 and 7:00 PM he went in
search of the deceased and in 20-25
minutes had arrived at Birapur and after 15
minutes, he departed from Birapur. PW-1
2 All. Gulab & Anr. Vs. State of U.P.
107
stated that during this search he did not
meet anybody on the way. According to this
witness, Village Derha is adjacent to the
place of incident. In respect of weapons
assigned to the respective accused, he
stated that in the FIR, he mentioned that coaccused Ram Awadh had an axe but if it is
not written, he cannot give reason. PW-1 in
his cross examination also stated that he did
not notice the dead body of Shekh
Mohammad Naqi (deceased) lying in the
field while he was going towards Birapur in
search of him. He admitted that if one stood
on that chak road, the dead body would
have been visible. PW-1 stated that the face
of deceased was flattened because of the
injuries. PW-1 denied the suggestion that
he got to know about the death of Shekh
Mohammad Naqi (deceased) next morning.
In respect of pending litigation, PW-1
stated that he is not aware whether there is
any case pending between surviving
appellant- Gulab and Shekh Mohammad
Naqi (deceased). In respect of presence/non
presence of blood on the spot, PW-1 stated
that due to rain, blood was washed out. He
later clarified that it started to rain when he
returned from the police station. He also
denied the suggestion that his son did not
inform him about the murder of Shekh
Mohammad Naqi (deceased). He admitted
that he had send his son (PW-2) with Shekh
Mohammad Naqi (deceased) to ensure
safety
of
Shekh
Mohammad
Naqi
(deceased) as the deceased never used to go
alone. PW-1 (Nabi Baksh) in his crossexamination also stated that 'Maghrib'
prayer (Namaz) is read after sunset.

14. From above, it is clear that Nabi
Baksh (PW-1), the informant, is not an eye
witness of the incident.

15. Prosecution next examined Nurul
Islam as PW-2. He is the sole eye witness
of the incident. According to him, he, on
the date of incident, had gone with Shekh
Mohammad Naqi (deceased) to Birapur
because his father Nabi Baksh (PW-1) was
busy in repair work. He and Shekh
Mohammad Naqi (deceased) went to
Birapur around 3:00 to 3:15 PM and they
departed from Birapur before sunset as
Shekh Mohammad Naqi (deceased) used to
offer 'maghrib prayer' (namaz) at home.
According to PW-2 between 6 and 6:30
PM, on way back, he stopped to urinate
whereas
Shekh
Mohammad
Naqi
(deceased) moved ahead. Soon thereafter,
he heard cries of Shekh Mohammad Naqi
(deceased); he saw the surviving appellant
No. 1-Gulab and other accused persons,
namely, Nanhu, Ram Kripal and Ram
Awadh, forcibly taking away, Shekh
Mohammad Naqi (deceased) into the Millet
(jwar) field. There, he saw the surviving
appellant- Gulab assaulting the deceased
and co-accused Nanhu holding his leg. As
per PW-2, appellant- Gulab had 'gandasa' in
his hand whereas co-accused Ram Awadh
and Ram Kripal had axe and spear,
respectively. According to PW-2, accused
persons threatened him and due to fear, he
ran away via Katehra road to come to his
house. He stated that due to the fear of the
accused persons he did not take the usual
'pagdandi' route to home. According to this
witness, he arrived at his house by about
8:00 to 8:15 PM and narrated the entire
incident to his father PW-1 (Nabi Baksh);
thereafter, they arrived at the spot with
others and saw the dead body of Shekh
Mohammad Naqi (deceased) lying in Millet
(jawar) field. Thereafter, his father Nabi
Baksh (PW-1) went to the police station to
lodge the first information report. PW-2
further stated that Abdul Wahid (PW-3) and
Abdul Moin (not examined) also arrived at
the place of incident and informed that they
also witnessed the accused persons running
108 INDIAN LAW REPORTS ALLAHABAD SERIES
away from the spot after committing the
murder
of
Shekh
Mohammad
Naqi
(deceased). As per this witness, surviving
appellant No. 1-Gulab and Nanhu had no
enmity with the deceased. PW-2 identified
articles of the deceased, namely, umbrella,
one pair of spectacles and other belongings
of deceased, recovered from the spot as
material Exhibit Nos. 1 to 6.

16. In his cross-examination, PW-2
stated that his house is about 1-1.5 miles
away from the place of incident and
Birapur is about 1-1.25 miles away from
the village-Kajipur whereas, Birapur is
about 2 to 2.5 miles away from his home.
According to PW-2, from Village Derha his
house is about 1 to 1.5 miles away. As per
this witness, from the place of incident,
village Birapur is about 1 to 1.25 miles. As
per this witness, though he heard shrieks of
Shekh Mohammad Naqi (deceased) but he
did not witness the accused assaulting the
deceased. According to PW-2, he did not
notice any other person near the place of
incident. PW-2 in his cross-examination
further stated that he went straight to his
home via Katehra and did not stop in
between. In respect of the height of the
Millet crop, he stated that at the time of
incident, height of the Millet (jwar) crop
was around 5 to 6 feet. According to this
witness, from the 'pagdandi' (narrow footpath) dead body lying in the field was
noticeable. In his cross-examination, PW-2
denied the suggestion that he did not
witness the incident and was not present at
the place of incident. He added that from
the place of incident he arrived at his house
in 1.5 to 2 hours. PW-2 admitted that one
side of the face of the deceased was
flattened as if it was compressed by a
heavy item. PW-2 however denied the
suggestion that Shekh Mohammad Naqi
(deceased) was having several enemies
and, therefore, somebody killed him and he
did not witness the incident.

17. Abdul Wahid was examined as
PW-3. According to this witness, on
4.9.1980 at about sunset, he was going to
Birapur alongwith his friend Abdul Moin
(not examined) to visit his niece and when
they crossed village-Derha, he witnessed
that surviving appellant No. 1-Gulab and
other accused persons were coming out
from Millet (jwar) field; at that time Gulab
had 'gandasa' in his hand and co-accused
Ram Awadh and Ram Kripal had axe and
spear, respectively, in their hands. This
witness also states that when he asked them
as to what happened, they went away
without saying anything. PW-3 further
stated that in between 9 and 9:30 pm, when
he was sitting in his relative's house, he
came to know that Shekh Mohammad Naqi
(deceased) was murdered on his way back
home; he arrived at the spot and saw the
body
of
Shekh
Mohammad
Naqi
(deceased) lying in the field. There, Nurul
Islam (PW-2) was present who informed
him about the incident. PW-3 also stated
that he informed Nurul Islam (PW-2) that
he also witnessed the accused persons
running away from the spot. PW-3 being
one of the inquest witnesses proved the
inquest report (Ext. Ka-4). In his cross
examination, PW-3 stated that he did not
see Nurul Islam (PW-2) at the spot nor he
heard his shrieks. PW-3 further admitted
that he did not witness commission of the
crime; he only saw the accused persons
including appellant-Gulab running away
from the place of incident.

18. Jadunath was examined as PW-4.
He was servant of Shekh Mohammad Naqi
(deceased). According to him, on the day
of his murder Shekh Mohammad Naqi
(deceased) arrived at Birapur with Nurul
2 All. Gulab & Anr. Vs. State of U.P.
109
Islam (PW-2) and about an hour before
sunset,
Shekh
Mohammad
Naqi
(deceased) and Nurul Islam (PW-2) left
Birapur. As per PW-4, Shekh Mohammad
Naqi (deceased) visited Birapur daily. PW4 denied the suggestion that being servant
of the deceased, he lodged a false report
against the accused Ram Awadh 3-4 days
before. In his cross-examination, PW-4
stated that he came to know about death of
Sheikh
Mohd.
Naqi
(the
deceased)
between 10 and 11 PM though he does not
remember as to who informed him. He,
however, visited the spot next day
morning.

19. Ramji Mishra, Head Constable was
examined as PW-5. He prepared the chik
report after receiving the written report (Ext.
ka 1). He proved the chik report as Ext. Ka
5. He also proved the G.D. Entry of 'kayami
mukadma' as Ext. Ka 6. PW-5 also proved
sealed item which was kept in malkhana as
Ext. Ka 7-8.

20. Constable Duryodhan Singh (PW6) gave his statement through an affidavit.
According to this witness in the night of
4/5.9.1980, S.I. Ameer Ali handed over the
dead body of Shekh Mohammad Naqi
(deceased) to him and constable Salik Ram
Chaubey (not examined) for post mortem
along with other documents. According to
this witness, on 5.9.1980, he kept the body
in the mortuary and identified it at the time
of autopsy.

21. Nanhu Singh, Assistant Clerk
(Malkhana, Sadar, Allahabad) gave his
statement through an affidavit as PW-7.
According to this witness, on 11.2.1981 the
sealed blood stained and plain soil was kept
in the malkhana and on 25.3.1981, the
above bundle, in a sealed condition, was
sent to Agra for analysis.

22. Ameer Ali was examined as PW8. He is the first investigating officer.
According to this witness, on 4/5.09.1980,
at about 1.00 AM, in the night he prepared
the inquest report (Ex. Ka-4); he made
recovery of blood and blood-stained as well
as plain soil from the spot. PW-8 stated in
his examination-in-chief that in column
Nos. 2 and 3 of 'chalan lash' due to mistake
the date was mentioned as 5.9.1980 in
place of 4.9.1980. In his cross-examination,
this witness has stated that by the time he
received the documents of the present case,
he was not aware as to who was the scribe
of the FIR. According to this witness, in the
FIR, it was not mentioned as to what
weapon was used by which accused. PW-8
stated that he recorded the statement of
Nabi Baksh- informant (PW-1) under
Section 161 of Cr.P.C. PW-8 also stated
that during investigation, he did not come
to know whether there was an eye witness
of the incident. He added that till the time
he was investigating the matter, he did not
come to know as to who committed the
murder. PW-8 in his cross-examination
admitted that police dog squad was called.
PW-8 further added that the head of
deceased appeared pasted to the earth as if
it was compressed by some heavy item.

23. PW-9, Ram Tripathi gave his
statement on an affidavit and the defence
did not cross examine him. This witness
stated that on 11.2.1981 two sealed boxes
of blood stained and plain soil were kept in
the malkhana on 25.3.1981. These items in
sealed condition were sent for Forensic
Analysis to Agra.

24. Dr. S.T. Imam, Physician at
District
Hospital,
Gorakhpur,
was
examined
as
PW-10.
This
witness
conducted the post mortem of the body of
the deceased-Shekh Mohammad Naqi on
110 INDIAN LAW REPORTS ALLAHABAD SERIES
5.9.19980 at about 3:00 pm. According to
this witness, deceased died a day before
and rigor mortis was present on both the
extremities.
PW-10
noticed
following
injuries on the body of the deceased:-

1. Incised wound 2'' X 1⁄2'' X
Complete cut of Mandible on the chin.

2. Incised wound right side
temporal region 3'' above the right ear with
fracture of temporal bone.

3. Incised wound on the right side
of the forehead just above the right eyebrow 2 and 1/2'' X 1'' with complete out of
the frontal bone.

4. Incised wound 1/2'' X 1/4'' on
the forehead just above the root of the nose.

5. Incised wound 1/2'' X 1/4'' on
the right side neck.

25. In internal examination of the
body, Doctor-(PW-10) found scalp and
brain lacerated. According to this witness
deceased could have died at about 6:00 pm
in the evening and the injuries found could
have been caused by axe, farsa and spear.
This witness proved post mortem report as
Ext. Ka-15. In his cross-examination Dr.
Imam stated that deceased sustained only
incised wounds and there was no punctured
wound. PW-10 denied the suggestion that
under the pressure of Collector and S.S.P.
concerned, he prepared a wrong post
mortem report. PW-10 also stated that the
right eye of deceased was not compressed;
if any such injury existed, it would have
been noticed by him.

26. Ram Ratan Ram PW-11 was the
third Investigating Officer. According to
this witness, on the order of Circle officer,
he started investigation of the case on
6.9.1980. He recorded the statement of
Nurul Islam (PW-2); inspected the spot and
prepared the site plan (Ext. Ka 16). On
7.9.1980, he recorded the statements of
Abdul Wahid (PW-3) and other witnesses
and on 3.10.1980, he submitted charge
sheet
(Ext.
Ka
17).
In
his
crossexamination, this witness stated that Amir
Ali, S.I. (PW-8) started investigation of the
case on 4.9.1980, at about 11.15 PM, after
the FIR. He stated that Nurul Islam (PW-2)
was an eye witness of the incident.
According
to
PW-11,
on
5.9.1980
investigation of the case was handed over
to Shankar Sharan Upadhaya (PW-13).
PW-11 stated that till 6th September, it was
not mentioned in the case diary that Nurul
Islam (PW-2) was an eye witness. PW-11
stated that Nurul Islam (PW-2) had told
him that he witnessed the accused persons
running away after committing the murder
of Shekh Mohammad Naqi (deceased).
PW-11 denied the suggestion that the
investigation of the case was handed over
to him only to generate an eye witness
account by manipulating the investigation.
Upon further suggestion, PW-11 stated that
he is not aware whether the Collector was
annoyed as there was no eye witness in the
FIR.

27. A.S.I., Subedar Yadav as PW-12
filed an affidavit. Defence did not cross
examine him. This witness proved that S.I.
Amir Ali (PW-8) handed over to him sealed
bundle of blood stained and plain soil
which was entered by him in the malkhana
in a sealed condition.

28. Shankar Saran Upadhyay, S.I.
(PW-13) is the second Investigating Officer
of the case. He stated that on 4.9.1980
while he was posted as S.O. at P.S.-Handia
he could not investigate, as he was ill. He,
however,
recorded
the
statements
of
accused Kripal, Gulab (surviving appellant)
and Nanhu after their arrest. According to
this witness, S.I. Amir Ali (PW-8) arrested
2 All. Gulab & Anr. Vs. State of U.P.
111
the accused persons and Amir Ali started
the investigation of the case and, thereafter,
Ram Ratan Ram (PW-11) investigated the
matter. Ameer Ali (PW-8) investigated the
matter on 4.9.1980 only and Ram Ratan
Ram started investigation on 6.9.1980.
According to this witness, as per Report
No. 90 dated 05.09.1980, at 6.40 hours,
written by Ramji Mishra, Constable, there
was a report in respect of dog squad and
Report No. 19, at 13:10 hours, indicates
arrival of dog squad, this report too, is
written by Head Constable Ramji Mishra.
PW-13 submitted and proved these reports
as Ext. Kha 1, Kha 2 and Kha 3.

Analysis:-

29. Having noticed the prosecution
evidence, it is clear that there are four
witnesses of fact, namely, Nabi Baksh (PW1)-the informant, Nurul Islam (PW-2),
Abdul Wahid (PW-3) and Jadunath (PW-4).

30. Nabi Baksh PW-1 is the informant
of the case. He lodged the FIR to the effect
that on 04.09.1980 at about 8.00 PM his son
Nurul Islam (PW-2) informed him that when
he (Nurul Islam) was returning back along
with Sheikh Mohd. Naqi (deceased) from
Birapur and arrived near village Derha, the
accused persons including the surviving
appellant no. 1 (Gulab) committed the
murder of Sheikh Mohd. Naqi. PW-1 stated
that he used to accompany the deceased to
Birapur on a daily basis but, on the date of
incident, he could not go as he had some
house repair work, therefore, he sent his son
Nurul Islam (PW-2) along with the deceased.
PW-1 proved the enmity between co-accused
Ram Awadh and Ram Kripal with the
deceased Sheikh Mohd. Naqi but, stated
specifically that the surviving appellant no.
1(Gulab) had no direct enmity with the
deceased.

31. Thus, PW-1, the informant, Nabi
Baksh, is not an eye witness. He only proved
the motive for the crime and that Nurul Islam
(PW-2) went along with the deceased to
Birapur on 04.09.1980 i.e. the date of the
incident.

32. Abdul Wahid (PW-3) is also not an
eye witnesses of the murder but is a witness
of circumstance. Abdul Wahid (PW-3) stated
that on or about the time of the incident he
witnessed the accused persons coming out
from the Millet (Jwar) field having weapons
in their hands. This witness is a chance
witness.

33. Jadunath (PW-4) is also not eye
witness of murder but is a witness who
proves that on the date of the incident, Nural
Islam (PW-2) and Sheikh Mohd. Naqi
(deceased) came to Birapur and they returned
back an hour before sunset. This witness thus
proves that Nurul Islam (PW-2) accompanied
Sheikh Mohd. Naqi on way back from
Birapur.

34. Consequently, Nurul Islam (PW2) is the only eye witness of the incident
and entire prosecution story rests heavily
on his testimony. Before we examine the
worth of the testimony of PW-2, it would
be useful to notice the law as to when
conviction can be based on the testimony of
a solitary eye witness.

35. The Apex Court in case of
Bhimapa
Chandapa
Hosamani
and
others Vs. State of Karnataka (2006) 11
SCC 323 observed as follows:-

"This
Court
has
repeatedly
observed that on the basis of the testimony
of a single eye witness a conviction may be
recorded, but it has also cautioned that
while doing so the Court must be satisfied
112 INDIAN LAW REPORTS ALLAHABAD SERIES
that the testimony of the solitary eye
witness is of such sterling quality that the
Court finds it safe to base a conviction
solely on the testimony of that witness. In
doing so the Court must test the credibility
of the witness by reference to the quality of
his evidence. The evidence must be free of
any blemish or suspicion, must impress the
Court as wholly truthful, must appear to be
natural and so convincing that the Court
has no hesitation in recording a conviction
solely on the basis of the testimony of a
single witness."

36. Again, the Apex Court in case of
Parvat Singh and others Vs. State of
Madhya Pradesh (2020) 4 SCC 33
observed as follows:-

"However, at the same time, the
evidence/deposition of the sole witness can
be relied upon, provided it is found to be
trustworthy and reliable and there are no
material contradictions and/or omissions
and/or improvements in the case of the
prosecution."

37. Recently, the Apex Court in case
of Amar Singh Vs. State (NCT of Delhi)
AIR 2020 SC 4894 observed in paragraph
16 as follows:-

"Thus the finding of guilt of the
two accused appellants recorded by the two
Courts below is based on sole testimony of
eye witness PW-1. As a general rule the
Court can and may act on the testimony of
single eye witness provided he is wholly
reliable. There is no legal impediment in
convicting a person on the sole testimony of
a single witness. That is the logic of Section
134 of the Evidence Act, 1872. But if there
are doubts about the testimony Courts will
insist on corroboration. It is not the
number, the quantity but quality that is
material. The time honoured principle is
that evidence has to be weighed and not
counted. On this principle stands the
edifice of Section 134 of the Evidence Act.
The test is whether the evidence has a ring
of truth, is cogent, credible and trustworthy
or otherwise (see Sunil Kumar V/s State
Government of NCT of Delhi)"

38. Thus, the law as it stands is that
conviction on the basis of testimony of sole
eye witness is permissible provided his
evidence is free of any blemish or suspicion
and impresses the Court as wholly truthful,
reliable and natural.

39. From a perusal of the evidence of
Nurul Islam (PW-2) and other witnesses, it
is proved that he accompanied Sheikh
Mohd. Naqi (deceased) to Birapur on
04.09.1980 and was with the deceased at
Birapur at or about 3.00-3.15 PM. The
testimonies of Nurul Islam (PW-2) and
Jadunath (PW-4) also proves that the
deceased and Nurul Islam (PW-2) departed
from Birapur before sunset. The question
that arises for our consideration is whether
at the time of the incident, say at about 66.30 PM, Nurul Islam (PW-2) was present
at the spot with Sheikh Mohd. Naqi
(deceased) or not; and whether his
testimony is wholly reliable and truthful.

40. Having gone through the entire
evidence of the witnesses of fact what
transpires is that PW-2, according to his
own stand, as soon as he saw the accused
persons with arms, having bodily lifted the
deceased
into
the
Millet
field
and
assaulting him, he effected his escape from
the spot and ran for his life. According to
PW-2, he did not take the usual Pagdandi,
but the road to reach home. The distance
between Birapur and Handia (home of the
deceased) has come on record to be
2 All. Gulab & Anr. Vs. State of U.P.
113
between 2 and 2 and 1⁄2 mile whereas the
distance between the place of incident and
PW-2's house is about a mile and a half.
PW-2 states that he reached home at about
8.00-8.15 PM. Importantly, the deceased
used to offer Magreeb Prayer (Namaz) on a
daily basis. This is at sunset. The sunrise
and sunset chart of 04.09.1980 for
Allahabad would indicate that the sunset on
04.09.1980 was at 6.18 PM. Meaning
thereby that the deceased had a target to
reach before 6.00 PM or about. As per PW4, he left Birapur for home an hour before
sunset. According to PW-1, when the
deceased did not arrive home for Magreeb
prayer, he went to Birapur from that
Pagdandi adjoining which, in a field the
deceased was lying dead. According to PW1, he left at about 6.45-7.00 PM to Birapur
in search of the deceased and reached
Birapur in about 25 minutes and after
staying there for 15 minutes came back. All
of this suggest that the place of occurrence
was not that far from the residence of the
deceased as to take PW-2 two hours to
reach home, whatever the route he might
take. This throws serious doubt whether he
was with the deceased or loitering some
where else. Another aspect noteworthy is
whether the incident occurred between 66.30 PM, as stated by PW-2 or earlier.
Ordinarily, if a devout muslim is used to
offer Magreeb Prayer, which is at sunset, he
would not like to miss it. Sunset as per the
chart was at 6.18 PM on 04.09.1980, hence,
the probability is high that the incident may
have occurred before 6.00 PM. Be that as it
may, what is important is that if PW-2 ran
away from the spot to the safety of his
home why he took about 2 hours to reach,
when even elderly persons could cover
double the distance, that is between Birapur
and the home of the deceased in 20 to 25
minutes. Thus, there arises a serious doubt
as to whether PW-2 was with the deceased
at the time of the incident.

41. As per PW-2, Nurul Islam,
surviving appellant no.1 Gulab was having
'Gandasa' in his hand while accused Ram
Awadh and Ram Kripal were having axe
and spear respectively and they all
assaulted Sheikh Mohd. Naqi (deceased)
whereas co-accused Nanhoo Singh caught
hold his legs.

42.