# Imtiyaz v. State - **Citation:** (2016) 3 ILRA 829 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-02 - **Case number:** Criminal Appeal No. 2642 of 1982 - **Bench:** Huluvadi G. Ramesh, Pramod Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imtiyaz-v-state-43610 - **Pages:** 11 ## Text 3 All. Imtiyaz Vs State 829 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar." 16. After going through the record, it is vivid that the applicant-opposite party is the wedded wife of the revisionist, but she failed to prove that Karan is legitimate or illegitimate child of the revisionist, which does not mean that she is or was living in adultery. In this case the revisionist has failed to prove that his wife, Smt. Raj Kumari without any sufficient reason, refused to live with him and that she is able to maintain herself. 17. In view of what has been indicated herein above, I find that the impugned order does not suffer from any illegality or impropriety. The revision lacks merits. It is accordingly dismissed. 18. Interim order dated 20.11.2014 stands discharged. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.03.2016 BEFORE THE HON'BLE HULUVADI G. RAMESH, J. THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J. Criminal Appeal No. 2642 of 1982 & Connected With Other Cases Imtiyaz ...Appellant Versus State ...Respondent Counsel for the Appellant: V.P. Srivastava, S.S.A. Azmi, Kesav Sahai, P. K. Singh Counsel for the Respondent: A.G.A. 1. Indian Penal Code, 1860 - Ss. 302/34 - Murder - Appreciation of evidence - Related witnesses.Conviction based on testimony of brother of deceased and another related eyewitness - Non-examination of independent witnesses though incident occurred at public place - One named eyewitness turning hostile - Held, relationship of a witness with deceased does not by itself render testimony unreliable - Distinction between "related" and "interested" witnesses reiterated - Evidence of PW-2 and PW-6 found consistent, natural and corroborated by prompt FIR and medical evidence - Non-examination of independent witnesses not fatal in case of gruesome and daring murder in public view. (Paras 20-24) (2) Indian Penal Code, 1860 - S.34 - Common intention - Motive - Identification.Previous night altercation over business accounts proved - NCR lodged by co-accused prior to incident naming deceased - Motive sufficiently established - Even otherwise, where direct ocular evidence exists, 830 INDIAN LAW REPORTS ALLAHABAD SERIES motive loses significance - Presence of sufficient electric light at place of occurrence proved by oral and documentary evidence - Identification of accused by witnesses held reliable - Held, prosecution successfully proved common intention and participation of appellant in commission of offence. (Paras 19, 26-28) (3) Indian Penal Code, 1860 - Ss. 302/34 - Medical evidence - Overt act - Benefit of doubt.Argument that absence of blackening or charring negatives close-range firing rejected - Minor discrepancy regarding distance of firing immaterial - Evidence established exhortation and firing by appellant - Not necessary to prove which particular shot was fatal when offence committed in furtherance of common intention - Conviction and sentence of life imprisonment affirmed. (Paras 25, 28-30) In Result-Appeal dismissed - Connected appeal abated due to death of co-appellants. (Delivered by Hon'ble Pramod Kumar Srivastava, J.) 1. The Court of 1st Additional Sessions Judge, Farrukhabad had passed judgment dated 28.09.1982 in Sessions Trial No. 137/ 1981, State v. Vijai & 5 others, Case Crime No. 186/1980, Sections 302, 34, 120-B I.P.C., P.S. Gurusahaiganj, Farrukhabad. By this judgment, two co-accused Pradeep and Basant were acquitted from the charges under section 302/120-B I.P.C, but other four accused, Vijai, Gyan Prakash, Mukesh and Imtiaz were convicted for the charges under section 302/34 I.P.C., each were sentenced to undergo imprisonment for life. Against this judgment of conviction and punishment dated 28.09.1982, two criminal appeals were preferred by the four convicted accused persons. Criminal Appeal No. 2528/1982 was preferred by accused Vijai, Gyan Prakash and Mukesh. Criminal Appeal No. 2642/1982 was preferred by accused Imtiaz. 2. All the three appellants of Criminal Appeal No. 2528/ 1982, Vijai and others v. State had died. Therefore, the said appeal had abated. Arguments were advanced in Criminal Appeal no. 2642/ 1982 on behalf of sole convicted surviving accused Imtiaz by his counsels and A.G.A. 3. Prosecution case in brief was that Mahesh Chandra son of Sri Ram is the informant, whose younger brother Subhash (victim) and Rajendra were running a hotel at the roadcrossing of Gurusahaiganj. They used to take articles for hotel from grocery shop of Ram Avtar, for which some payment was due. One day before the incident, at about 12:30 hours in night, there had been altercation between Vijai, Ram Avtar and Imtiaz on one hand and informant's brother Subhash and Rajendra on other hand. In this altercation both the sides had involved in inflicting injuries but some persons interfered and mediated the matter. Then next day on 21.5.1980 at about 10:30 P.M. in night informant's brother Subhash and one Nabi Alam were coming on bicycle. When they reached near betel shop of Babu Ram then Vijai, Gyan Prakash, Mukesh and Imtiaz stopped him. These accused had revolver in their hands. When Subhash dismounted from the cycle, the accused Gyan Prakash asked as to whether he is paying the money or they would grab the hotel. On this informant's brother Subhash told that money is with Rajendra, from which it can be asked, and also told that you are giving false evidence against uncle Hari Ram and showing stubbornness. On this, on exhortation of Imtiaz, all the four accused Vijai, Gyan Prakash, Mukesh and Imtiaz had fired 3 All. Imtiyaz Vs State 831 on informant's brother Subhash. Then informant Mahesh, Subhash (son of Munshi Lal), Subhash Chaurasia, Rajendra Katiyar and other persons rushed on spot. But accused ran away from the spot waiving their revolvers. Then informant brought his brother Subhash to hospital, where he was informed by the doctors that Subhash had already died. Then in same night at about 11:30 P.M., informant gave written report (Ex. Ka-1) in police station Gurusahaiganj, on the basis of which Case Crime No. 186 of 1980 was registered for offences under section 302/34 I.P.C. against four named accused persons. During investigation it was found that two persons Pradeep and Basant were also involved in the conspiracy of murder of this case. Then they were also made co-accused in this matter. 4.The Sessions Judge had framed charges for offences u/s 302/34 I.P.C. against accused Vijai, Gyan Prakash, Mukesh and Imitaz; and for offences u/s 302 read with 120-B I.P.C. against co-accused Pradeep and Basant. All accused had pleaded not guilty and claimed to be tried. 5. In support of charges, prosecution side had examined PW-1 Subhash (s/o Ram Lal), PW-2 Mahesh Chandra (informant), PW-3 Constable Dinesh Chandra, PW-4 Dr. V.P. Bhatnagar (who performed post-mortem), PW-5 S.I. Bhagat Narayan (who performed inquest proceedings), PW-6 Subhash Chandra (s/o Munshi Lal), PW-7 Ram Babu (witness of conspiracy) and PW 8 S.I. Sita Ram (I.O.). These witnesses had also proved some documentary evidences of prosecution side. 6. PW-7 Ram Babu was only witness for proving alleged conspiracy hatched by accused Pradeep and Basant. He turned hostile and not supported prosecution case. No other witness gave any evidence regarding conspiracy by accused Pradeep and Basant. Therefore, in absence of any evidence of conspiracy, the charges under section 302/120-B I.P.C. were rightly found not proved against accused Pradeep and Basant and they were rightly not convicted. 7. Out of all witnesses examined by the prosecution side, PW-3 Constable Dinesh Chandra was formal witness, who had taken the dead body of Subhash after inquest to police line and hospital. PW-4 Dr. V.P. Bhatnagar had performed post-mortem of deceased Subhash and found, inter alia, three entry fire wounds and one exit fire wound, out of which one entry fire wound was charred from its sides. PW-5 S.I. Bhagat Narayan had performed inquest proceedings and PW-8 S.I. Sita Ram was Investigating Officer. Apart from these four formal witnesses, PW-7 Ram Babu was the witness examined only for conspiracy as discussed above. Thus, for the charges against four accused Vijai, Gyan Prakash, Mukash and Imtiaz, only three witnesses of facts were examined, which were PW-1 Subhash (s/o Ram Lal), PW-2 Mahesh Chandra (informant,brother of deceased and eye witness) and PW6 Subhash (s/o Munshi Lal, eye witness). 8. Out of above named three witnesses examined against appellants, PW-1 Subhash had stated that in the night of incident at about 10:45 P.M., he asked his brother to sit on his betel shop gone to shop of Girish. From the shop of Girish he heard the sound of firing and saw that 10-12 persons were running towards east. He could not recognize those persons. When 832 INDIAN LAW REPORTS ALLAHABAD SERIES he came near shop of Ramesh, then he saw a mob there and also that on the footpath the dead body of Subhash, and people were telling that some persons had murdered Subhash and ran away. At that time, there was light of electric poll near betel shop of Babu Lal. This witness PW-1 was declared hostile by prosecution side. 9. Another eye witness was PW-2 Mahesh Chandra (informant) had stated that his brother Subhash and Rajendra Kahar had been running a hotel in partnership at crossing of Gurusahaiganj bus stop. For this hotel, groceries were purchased from shop of Ram Avtar (brother of accused Vijai) on loan, and accounting and transaction for the same was done by Rajendra. PW-2 also told that his electric shop is also on same crossing, which 10-15 paces away from the hotel of his brother and he could see the hotel from his shop. One day before the charged incident, there was some altercation at 10:30 P.M. in night between Rajendra, Subhash, Vijai, Imtiaz and Gyan Prakash. He (PW-2) was also present at that time and had got the matter settled. In this altercation, both the sides had inflicted injuries. Next day, when he reached on betel shop of Babu Ram with other persons, then there came his brother Subhash, who was sitting on cycle of Nabi Alam. He saw that near the betel shop of Babu Ram, accused , Imtiaz, Mukesh, Gyan Prakash, Basant, Pradeep were standing. Vijai, Imtiaz, Gyan Prakash and Mukesh had revolver in their hands. Gyan Prakash had stopped the cycle and asked his brother Subhash to settle the account, when Subhash told him to talk to Rajendra, then Gyan Prakash asked him that either he should pay the money or give his hotel, which is their last decision. On this Subhash told them to talk to Rajendra; then on exhortation of Gyan Prakash the Imtiaz, Vijai, Mukesh and Gyan Prakash had fired at Subhash, due to which Subhash fell down. At that time of incident Nabi Alam was standing 2-3 yards away, Babu Ram was sitting on his shop, Ramesh was also closing his betel shop. When the accused left the spot, he (PW-2) came near his brother and found that wounds were bleeding and some blood was there on road. Then he had arranged a four wheeler trolley and taken his brother Subhash to Gurusahaiganj Hospital, where doctors had declared him dead. Then he dictated written report to his brother and after reading it, signed over it and given it to in police station. This written report was exhibited as Ex-1 and blood stains cloths of deceased as proved by PW-2 marked as Ex.-1 and Ex.-2. During cross examination this witness has told that at the time of closing of his shop Subhash son of Munshi Ram and Subhash had also met him and were present at the time of incident. He also told that in cross-examination all the accused had fired at Subhash from closed range. 10. PW-6 Subhash (son of Munshi Lal aged about 20 years) was the other eye witness examined by prosecution side, who stated that he used to work at the shop of informant Mahesh Chandra. At the time of incident at about 10:30 P.M. he and Mahesh were closing the shop, then came there Rajendra Katiyar and Subhash Chaurasia. After closing the shop, they proceeded towards their house in west; when they reached near shop of Babu Ram (Babu Lal), they saw that Nabi Alam and deceased Subhash came there on bicycle; they were stopped by accused Vijai, Gyan Prakash, Mukesh and Imtiaz, who were holding revolver. Gyan Prakash asked Subhash to pay money or handover the hotel. On this the Subhash told that accounting is done by Subhash, who will pay the money. Subhash also told Vijai that he was going to give false evidence against uncle Hari Ram. On this, Imtiaz exhorted to kill him. On this, Vijai, Gyan Prakash and Mukesh had fired at Subhash, due to 3 All. Imtiyaz Vs State 833 which he fell down. After that Imtiaz had also fired on Subhash. He could not see as to whether fire of Imtiaz had hit Subhash or not. On raising alarm, Vijai had also fired in air and then accused ran away towards west. At that time, accused Basant, Pradeep were also sitting on the bench of shop of Babu Ram. They had also ran away from the spot. At that time there was lighting on a poll 10-15 pace from the shop, and tube light of the shop was also giving light. This incident was seen by him, Subhash Chaurasia, Rajendra Katiyar and Mahesh Chandra. When the accused left the spot, they reached near victim Subhash and found that he was bleeding; then any person brought there a four wheeler trolley by which they took Subhash to hospital, where doctors declared him dead. The report of incident was lodged by Mahesh after getting it written by his brother Subhash. 11. In their statement under section 313 Cr.P.C., all accused had denied the allegations against them and stated that they were falsely implicated and prosecution evidence is incorrect, and they were involved in this case due to earlier enmity. Opportunity of adducing defence evidence was afforded to defence side, but none of the accused adduced any oral defence evidence, but had adduced some documentary evidences. 12. After affording opportunity of hearing, the Ist Additional Sessions Judge, Farrukhabad had passed judgment dated 28.09.1982, by which accused Pradeed and Basant were held not guilty for the charge under Sections 302, 120-B I.P.C and were acquitted; but remaining four accused namely Vijai, Gyan Prakash, Mukesh and Imtiyaz were held guilty and convicted for the charge under Section 302/ 34 I.P.C. Then learned Sessions Judge had heard the four convicted accused on point of quantum of sentence and passed the order to undergo sentence of imprisonment for life. 13. Aggrieved by the judgment of conviction and punishment dated 28.02.1982 of the Court of Ist Additional Sessions Judge, Farrukhabad, two criminal appeals were preferred. Criminal Appeal No. 2642/1982 (Imtiyaz v. State) was preferred by the accused Imtiyaz. Another Criminal Appeal no. 2528/1982 (Vijai & others v. State) was preferred by remaining three accused persons namely Vijay, Gyan Prakash, and Mukesh. These two appeals were connected after institution. But before final hearing of these appeals all the three appellants of Criminal Appeal no. 2528/1982, namely Vijay, Gyan Prakash and Mukesh had died; therefore the said appeal has abated. The present hearing has been made only for Criminal Appeal no. 2642/1982 for its sole appellant Imtiyaz. 14. Learned counsel for the appellant contended that in prosecution case, and in F.I.R there were five witnesses, namely informant Mahesh, Subhash s/o Munshi, Subhash Chaurasia, Nabi Alam and Babu Lal; out of which one witness Subhash Chaurasia (P.W-1) become hostile, and two main independent witnesses were Nabi Alam and Babu Lal, who were not examined. He contended that prosecution version was supported by only two witnesses namely PW-2 Mahesh who is brother of deceased and PW-6 Subhash s/o Munshi who is relative of informant and deceased, and were partisan witnesses. The prosecution side had not examined independent witnesses, so best evidence was suppressed for which presumption of fact should be considered against the prosecution case. 834 INDIAN LAW REPORTS ALLAHABAD SERIES 15. Learned counsel for the appellant further contended that appellant Imtiyaz had no motive for murder of deceased Subhash, and he was falsely implicated. He further contended that there was no source of light on the spot at the time of alleged incident at 10:30 p.m. So the testimony of witnesses regarding identifiability of accused persons is not believable. He also contended that had the accused fired at deceased from very close range as stated by P.W. 1 and PW-6, then there should have been blanking and charring on the body of deceased. The absence of such blanking and charring in medical report indicates that statement of prosecution witnesses are incorrect. Therefore the evidences of prosecution witnesses is not believable. He further contended that out of two witnesses supporting prosecution case and fact of charge, one PW-2 Mahesh Chandra is real brother of deceased and biased, but the other witnesses PW-6 had specifically stated that he could not see as to whether fire of Imtiyaz had hit deceased or not. He contended that in these circumstances benefit of doubt should be given to appellant Imtiyaz and his appeal should be allowed. 16. Learned A.G.A. for the stated contended that there is specific evidences that one day before the incident there had been physical manhandling and altercation when Vijai, Ram Awatar, Imtiyaz on one side and Subhash (deceased) and Rajendra on the other side. Although due to interference of some people this altercation was instantly resolved on spot, but the accused Vijay had lodged report by N.C.R. in police station about this incident, which proves that one day before the incident serious altercation had happened between the two groups, in which appellant Imtiyaz and deceased Subhash were involved, and had inflicted injuries on each other. This was proved to immediate motive of murder with appellant. 17. Learned A.G.A. for the State had alternative arguments that when there is direct evidence of commission of offences then motive looses it importance. He further contended that there direct evidence of presence of light, which was also specifically discussed by the trial court in its judgment by acceptable finding. Learned A.G.A has also contended that although at one placing during cross-examination, PW-6 has stated that he could not see as to whether shot of fire of Imtiyaz had hit the deceased or not, but he had also specifically stated that he had seen the Imtiyaz and other three appellants firing on the deceased, in this circumstance active involvement of appellant Imtiyaz in murder of deceased is proved by believable evidences adduced by the prosecution side. He further contended that there is no discrepancy in the evidences of prosecution side and the judgment of first appellate court is not erroneous, therefore the prosecution side had proved the charges beyond reasonable doubt against them. Therefore the appeal should be dismissed. 18. We have heard learned counsel for the appellant and learned A.G.A for the State and perused the record. 19. One main argument of the learned counsel for the appellant is that the Imtiyaz is neither relative of the parties nor he is residence of same village of other accused or deceased, and is residence of Ghatampur, which is for away from the place of incident, and had no motive to cause harm or murder the victim. The prosecution had failed to prove the motive of his involvement in the incident, therefore, he should be given the benefit of doubt. 3 All. Imtiyaz Vs State 835 In this regard there is specific evidence of the prosecution witnesses supporting the charge that deceased Subhash was running a hotel in partnership with Rajendra. Rajendra used to purchase grocery items and other articles for that hotel on credit from the grocery shop of Ram Awatar, who is brother of accused Vijai. One day prior to the present incident, at about 10:30 p.m, in night there was some dispute and altercation between the Rajendra and deceased Subhash with four accused-appellants. This altercation was for the accounts of goods/grocery purchased, and at that time PW-2 Mahesh Chandra was present there. There is evidence that with intervention of person present there disputes was averted. The direct motive proved by the prosecution is that fight of earlier night of appellants with deceased, due to which the appellants were prompted to commit murder of Subhash. These facts were mentioned in F.I.R of informant Mahesh Chandra (PW-2), which was promptly lodged after one hour of the charged incident at about 11:30 p.m. This fact is also proved by exhibit K 14, which is a certified copy of N.C.R. No. 193 dated 20.05.1980, lodged by accusedappellant Vijai, in which Rajedndra and deceased Subhash were named as accused person. Lodging of this N.C.R was also proved by Exhibit K-16, which is copy of G.D. dated 20.05.1980 of police station Gursahai Ganj. The informant of this NCR was appellant Vijai, and its accused were Rajendra and deceased Subhash. In his statement under Section 313, accused Imtiyaz has stated that he was falsely implicated because his brothers had some disputes with Mukesh and Raja Ram. Mukesh himself was co-accused in this matter with appellant Imtiyaz. Had Mukesh been instrumental in falsely implicating the appellant Imtiyaz, then he would have not implicated himself also. No suggestion was given to the prosecution witnesses that appellant was falsely implicated due to old enmity of Mukesh or Raja-Ram. The prosecution had proved the motive of commission of said murder, which is the one day old altercation and disputes between accused with the deceased for which N.C.R. was lodged against the deceased and his partner in hotel. Thus these findings of learned sessions court stands proved, and are hereby confirmed, that prosecution side had proved the motive of appellant for the charged incident. These observations of trial court is also found correct that where there is a direct occular testimony of commission of crime, then the question of motive pales into insignificance. However in instant case there was a motive for the four accused persons for committing the murder of victim. 20. There has been arguments on part of appellants' side that independent witnesses were not examined and best evidence was suppressed because the prosecution side had examined only bias and partisan witnesses. It is a fact that charged incidence was committed before the shop of Babu Lal Panwala,which was opened at the time of incident, therefore the said Babu Lal Panwala should have been natural and independent witness of the incident. The prosecution case has been that deceased Subhash was coming on one bycycle with Nabi Alam, when he was stopped by appellants; therefore Nabi Alam should have been natural and independent witness of the incident. Both these were not examined. Apart from it P.W.-1 Subhash Chaurasia was also named witness in F.I.R. had turned hostile. Admittedly the witnesses supporting the charge are PW 2 Mahesh, who is brother of the deceased, and PW6 Subhash s/o Munshi, who is related to the deceased. Learned Sessions Judge observed that although PW-2 and PW-6 may be interested from the side of deceased and are related witnessed to him, but they are not interested witnesses. The lower court had differentiated the status of interested witnesses and related witnesses and held that although PW-2 and 836 INDIAN LAW REPORTS ALLAHABAD SERIES PW-6 were related to deceased, but they cannot be termed as interested witnesses. After appreciating the testimony of PW-2 and PW-6, it is found that they have supported the prosecution case in believable manner. Except a few very minor points of discrepancies, which have negligible effect, their testimony supports their presence on spot, commission of charge incident by four convicted appellants on the scene of spot and their identifibility. Their testimony is supported by each other as well as by other documentary, circumstantial and medical evidences, so they appear to be reliable witnesses. 21. Learned counsel for the appellant contended that PW-2 Mahesh was real brother of deceased Subhash. Had he been present on spot at the time of incident in question, then he would have tried to protect his brother. But in absence of proof of any such attempt his testimony should not be relied. The arguments of appellants side regarding PW-6 is also the same. It is a matter of common experience that every person cannot dare to defend a victim when there has been such ruthless, indiscriminate and sudden firing. In such situation, first thing a witness will think about his owm safety, and thereafter safety of any other person will come in his mind. This was the case in present matter. It is proved from the evidences of witnesses of fact as well as the evidence of formal witness relating inquest and investigation that incident of charge had occurred on public road openly, in public gaze, in availability of sufficient light, and at that time the accused persons had not tried to conceal their identity. This shows the stubbornness of accused appellants, who had dare to murder the victim openly in public view at a public place. Since there is evidence, as stated by P.W. 2 and PW6, that accuseds-appellants had stopped the deceased coming on bicycle, started altercation for the amount, and then suddenly fired at him, therefore it is proved that neither these witnesses nor other persons of that locality had any time to stop them from committing the charged incident. 22. So far the arguments relating to related witness is concerned, this is a fact. But these witnesses had no personal enmity or motive against any of the appellant to implicated them falsely for the charge of murder. Although one day earlier to the charged incident, there was altercation and manhandling between the appellants and deceased, but it appears that main victims of said altercation were appellants themselves because according to their NCR they had received injuries inflicted on them by deceased. Had the deceased or his relatives (PW-2 and PW-6) have any grievances from the said incident of one day old, then they would have lodged report in police. So it appears no motive with PW-2 and PW-6 to lodge false report or give false testimony. 23. Although no absolutely independent witness, unconnected in anyway with the prosecution side or defence side was examined in this case, but it is not surprising or unnatural. The incident in question was that of gruesome daring and open murder at public place. 24. The incident in question was of gruesome, daring and open murder at public place in public view, without any attempt of hiding the identity. Any person absolutely unconnected with the incident may have fear of his own security and may naturally abstain from becoming a witness of such incident. As held earlier every person cannot dare to be a 3 All. Imtiyaz Vs State 837 witness in such an incident. People may be present at the spot/ scene of occurrence at the time of commission of heinous offences, but when it comes to become a witness in a court, very few people may rise to the occasion and dare to depose. In this perspective nonexamination of absolutely independent witness in this particular case is not a point to doubt the otherwise truthfulness of testimonies of prosecution witnesses.The learned Sessions Judge has meticulously considered this point with the facts and circumstances related to it, and has held that it would not be safe to discard the testimony of relative witnesses and in each and every case, especially the case like present one. The findings of in this regard given by the learned trial judge are found correct and acceptable, which is hereby confirmed. 25. The learned counsel for the appellants argued that testimony of prosecution witnesses are not in consonance of medical evidences so far. He contended that closed range firing was stated by the witnesses, but no blackening and charring was found on his body, which should have been there in close firing. From the evidences of the witnesses, it is proved that one witness PW-2 was present about 15 paces away from the spot and other witness PW-6 was slightly more away. From those distances, they might have thought that fires made on victim by appellants were from close or point blank range. But in present set of circumstances there may be possibility in ascertaining the exact distance between the firearm and the victim. It is believably proved from the evidences that four accused appellants were present on the spot alongwith their fire arms and they had fired on victim. So the absence of blackening and charring may be result of some distance between their pistols and victim. Both the witnesses had specifically and believably stated that each accused had fired from close range on victim Subhash; but only three gunshots injuries were found on the body of deceased. It appears that fourth shot was missed. Had there been firing from point blank range or very close range, as the witnesses had said, then there would have been four gunshots' injuries instead of three. This is a minor point in proof of four firing and three gunshots injuries. It appears that firing was not from very close range, but from such distance, which had not resulted in blackening and charring around gunshot wounds. Therefore, the contention of learned counsel for the appellant in this regard is fond unacceptable. 26. The learned counsel for the appellant had challenged the identibility of accused by witnesses with argument that there was no evidence of proper light at about 10:30 p.m. and the possibility of presence of PW-2 and PW-6 near the spot. The electric goods shop of PW2 Mahesh Chandra is very near from the beetle shop in front of which incident had occurred. So it is not improbable for him to be present near the spot after closing of work of shop. PW6 also worked in same shop and was following PW-6 Mahesh Chandra. So his presence is not unbelievable on spot. They had specifically stated that there were light of beetle shop of Babu Lal. Prosecution side had also given evidence in this regard by obtaining documentary evidences relating to elctricity power-cut in that area. PW-8 Investigating Officer Sitaram Pandey had proved the fact of prsence of electric light by stating that there was a electric bulb at the scene of occurrence which was hanging from electric-pole and was lighting. Other witnesses had also supported this fact and also stated about availability of the light of beetle shop. Exhibit K 17 is a letter of Electricity Department which proves that in the night of 21/22nd May, 1980 the electric power was supplied from 6:15 p.m to 11:00 p.m. and 838 INDIAN LAW REPORTS ALLAHABAD SERIES from 11:25 p.m. to mid night of 21st May, 1980. So from the oral evidences as well as documentary evidences, it has been proved that there was electric light on the spot at the time of commission of charged incident, and such light was sufficient to recognize the culprits by previously known eyewitnesses. In this regard, the trial court had also appreciated the facts, circumstances and evidences and held that the time of charged incident, there was sufficient electric light, under which the accused-appellants were recognized by the witnesses. There was sufficient light on spot under whom the culprits had recognized the victim, and in same way, in such light the witnesses had spotted and identified the culprits-appellants. 27. One main arguments of learned counsel for the appellant was that, for the sake of argument if the presence of appellant Imtiyaz at the time of charged incidence is accepted then in that case also there is no proof of any overt act being committed by him. From the evidences adduced in this matter, this argument appears unacceptable. in prompt FIR lodged immediately within a period of an hour of incidence the appellant Imtiyaz was named not only for exhortations, but also for firing by his firearm with other co-accused. PW-2 Mahesh Chandra had given statement that both Mukesh and Imtiyaz had shouted for killing and then all the accused had opened fires. PW-6 Subhash s/o Munshi had specifically sated that before the firing at victim with other co-accused, it was Imtiyaz, who had started giving calls for killing the victim. Thus the role of exhortation by appellant Imtiyaz before firing start of firing by him is proved by believable direct and circumstantial evidences. 28. Learned counsel for the appellant Imtiyaz pointed out that PW-6 had stated that he could not see as to whether fire of Imtiyaz had hit the victim or not. This is a natural statement of PW-6. He had seen the exhortation by appellant Imtiyaz, and the firing by him alongwith other three co-accused persons. It is also proved from the evidences that four gunshots were fired at victim, but only three had hit him. There is certain possibility that out of four assailants, the fire of one was missed and did not hit the victim. It may or may not be the appellant Imtiyaz, but both PW-2 and PW-6 had stated that appellant had also fired on victim Subhash. Considering these points and considering the point that it is not clear that as to whose shot had become fatal, all the four appellants were charged for the offences under Sections 302/34 IPC and were convicted for the same. There is sufficient and believable proof was appellant was involveed directly and actively in the charged incident by way of exhortation for killing and by firing over him. Thus, there is no doubt that conviction of appellant for the charge under Sections 302/34 I.P.C was not wrong. This fact had also been considered by the learned trial court, which had given correct finding in this regard, which is acceptable and is hereby confirmed. 29. On the basis of above discussions and appreciation of oral and documentary, and circumstantial evidences adduced in the trial court, and also from the perusal of the judgments of the lower court, we are of the considered opinion that there is no error, discrepancy or infirmity in the judgment of trial court. The prosecution side had been able to prove charges against appellat beyond any doubt. The contentions of learned counsel for the appellant Imtiyaz were found unacceptable. In these circumstances, the judgment of the trial 3 All. Ashutosh Patel Vs State Of U.P. & Ors. 839 sessions court is hereby confirmed. Therefore criminal appeal no. 2642 of 1982, preferred by appellant Imtiyaz is hereby dismissed. 30. As stated earlier, three appellants of criminal appeal no. 2528 of 1982 Vijai & Ors. v. State have died during pendency of appeal, therefore the said appeal had abated. 31. Let a copy of this judgment be sent to the learned Sessions Judge, Farrukhabad, for ensuring compliance. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 30.03.2016 BEFORE THE HON'BLE RAJAN ROY, J. Service Single No. - 5890 of 2015 Ashutosh Patel ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for Petitioner:- Sanjay Mishra Counsel for Respondents:- C.S.C., R.K.S.Suryavanshi Proceedings: Bunch of writ petitions under Article 226 of the Constitution of India seeking a writ of mandamus for payment of salary from the State-Exchequer on the basis of ad-hoc/temporary appointments made by Committees of Management of recognized and aided Intermediate Colleges against alleged substantive vacancies. Statutory Provisions / Sections Involved Article 226, Constitution of India Section 16, U.P. Secondary Education (Services Selection Board) Act, 1982 Section 16-E(11), U.P. Intermediate Education Act, 1921 Section 9, U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 Relevant Regulations framed under the Intermediate Education Act, 1921 Facts: Petitioners were appointed by Committees of Management on ad-hoc/temporary basis as teachers in recognized and aided institutions. Appointments were made against substantive vacancies, mostly arising due to retirement or promotion of incumbent teachers.