# Ishtiyak v. State of U.P

- **Citation:** (2023) 9 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Criminal Appeal No. 4700 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishtiyak-v-state-of-u-p-50742
- **Pages:** 21

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 148, 302/149 & 307/149Challenge to-Conviction- All the accused
persons were armed with katta, revolver
and
bomb-They
were
knowing
that
accused whose shot hit and killed the
deceased was having a deadly weapon
which he would use to achieve the
common object of the unlawful assembly-
Further more, they even exhorted each
other to kill the family members of the
informant side-It has been proved from
the evidence of PW-1 that after hitting the
deceased accused had fired upon him but
he escaped- It has also been proved that
one of the accused had exploded bomb on
the spot and the residue in the shape of
rope had been recovered from the spot-
the alleged offence was committed by the
convict appellants being a member of
unlawful assembly to achieve the common
object there was prior enmity between the
convict appellants and the informant, his
family members and his neighbour -
neighbour was earlier assaulted by the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons, in which the informant
was one of the witnesses-As it is a case of
direct evidence, therefore, motive has no
much significance- Thus, the trial court
has rightly convicted all the accused
persons under Sections 148, 307 read
with Section 149, 302 read with Section
149 IPC, therefore, no interference is
warranted in the appeals.(Para 1 to 104)

B. The applicability of Section 34 requires
the consideration of both, the physical as
well as the mental aspect of ingredient of
this section. As against this, Section 149
does not insist only on the mental element
and therefore, it is not necessary that a
member of an unlawful assembly must
have actually participated in commission
of the offence. (Para 97)

The appeals are dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,864 of 68,280. This is a partial read: ask again with offset=39864 for what follows._

9 All. Ishtiyak Vs. State of U.P.
75
the chargesheet, no one bothers to monitor
the court proceedings to ensure the timely
and secure attendance of key witnesses,
resulting in inordinate delay and lingering
of the trial, leaving witnesses vulnerable.

88. It has also been observed that in
general the public prosecutors come to the
court ill-prepared limiting themselves to the
statements
recorded u/s 161 Cr.P.C.,
without reviewing thoroughly the entire
case material available in the case diary
causing serious lapses. They are not even
aware of the exact status of the witness and
what documents are on record, that a
particular witness has to prove. Material
documents are left unproven, resulting in
recalling
the
witness
and
additional
opportunities for the defense to crossexamine,
ultimately
prejudicing
the
prosecution's case.

89. The trial court also fails in its duty
of fair and speedy trial in accordance with
the law by granting frequent adjournments
upon mere request, even when the
deposition of the witness has started.

90. It is essential for all involved to
address these issues. Additionally, it is
crucial to recognize that the investigation
phase is pivotal in the administration of
criminal justice. However, it falls in the
hands of inept officers who lack proper
legal knowledge resulting in a botched
investigation. Investigation is also the last
thing on their list of priorities. To ensure a
fair and proper investigation it is necessary
that the investigating agency must be a
separate entity equipped with officers who
are able, qualified and have expertise in
this field.
----------
(2023) 9 ILRA 75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 4700 of 2019
Alongwith
Criminal Appeal No. 2916 of 2018

Ishtiyak ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sufiya Bano, Sri Anil Kumar, Sri Apul Misra,
Sri Ashok Kumar Singh, Sri Aushim Luthra,
Sri Mohd. Akhtar

Counsel for the Respondent:
G.A.

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 148, 302/149 & 307/149Challenge to-Conviction- All the accused
persons were armed with katta, revolver
and
bomb-They
were
knowing
that
accused whose shot hit and killed the
deceased was having a deadly weapon
which he would use to achieve the
common object of the unlawful assembly-
Further more, they even exhorted each
other to kill the family members of the
informant side-It has been proved from
the evidence of PW-1 that after hitting the
deceased accused had fired upon him but
he escaped- It has also been proved that
one of the accused had exploded bomb on
the spot and the residue in the shape of
rope had been recovered from the spot-
the alleged offence was committed by the
convict appellants being a member of
unlawful assembly to achieve the common
object there was prior enmity between the
convict appellants and the informant, his
family members and his neighbour -
neighbour was earlier assaulted by the
76 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons, in which the informant
was one of the witnesses-As it is a case of
direct evidence, therefore, motive has no
much significance- Thus, the trial court
has rightly convicted all the accused
persons under Sections 148, 307 read
with Section 149, 302 read with Section
149 IPC, therefore, no interference is
warranted in the appeals.(Para 1 to 104)

B. The applicability of Section 34 requires
the consideration of both, the physical as
well as the mental aspect of ingredient of
this section. As against this, Section 149
does not insist only on the mental element
and therefore, it is not necessary that a
member of an unlawful assembly must
have actually participated in commission
of the offence. (Para 97)

The appeals are dismissed. (E-6)

List of Cases cited:

1. Iqbal & anr Vs St. of U.P. (2017) 11 SCC 93

2. Vinubhai Ranchodbhai Patel Vs Rajivbhai
Dudabhai Patel & ors. (2018) 7 SCC 743 (744)

3. Gangadhar Behra Vs St. of Ori. (2003) CrLJ
41 SC

4. Asharful Vs St. of U.P. (1987) AIR SC 721

5. St. of Mah. Vs Kashirao (2003) CrLJ 4464 SC

6. Allauddin Mian Vs St. of Bih. (2007) 9 SCC
791

7. Bhagwan Singh Vs St. of M.P. (2002) AIR SC
1621

8. Unus Vs St. of M.P. (2003) CrLJ 817 SC

9. Ramvilas Singh Vs St. of Bih. (1969) AIR SC
1593

10. Sunil Balkrishna Bhoir Vs St. of Mah. (2009)
2 SCC (Cri) 226

11. Bishu Sarkar & ors. Vs St. of W.B. (2017) 11
SCC 105

12. Chittarmal, Moti Vs St. of Raj. (2003) AIR SC
796
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Apul Misra, learned
counsel for all the accused-appellants, Sri
Vikas Goswami, learned AGA for the State
and perused the record.

2. Criminal Appeal No.2916 of 2018
has been preferred against the judgment
and order dated 04.04.2018 passed in ST
No.642 of 1996 (State of UP Vs. Allau and
others) arising out of Case Crime No.121
of 1996, by Sri Santosh Kumar Tiwari,
Additional Sessions Judge-II, Azamgarh by
which the trial court convicted the accused
persons namely Allau under Section 148
IPC for fine of Rs.3,000/-, under Section
302 IPC for life imprisonment and fine of
Rs.25,000/-, under Section 307/149 IPC for
five years rigorous imprisonment and fine
of Rs.5,000/-; accused Saddik under
Section 148 IPC for fine of Rs.3,000/-,
under Section 302/149 IPC for life
imprisonment and fine of Rs.25,000/-,
under Section 307 IPC for five years
rigorous
imprisonment
and
fine
of
Rs.5,000/-; accused Gufran under Section
148 IPC for fine of Rs.3,000/-, under
Section 302/149 IPC for life imprisonment
and fine of Rs.25,000/-, under Section
307/149 IPC for five years rigorous
imprisonment and fine of Rs.5,000/- with
default stipulation. It was also directed that
all the sentences shall run concurrently.

3. Out of the above three convicts
Allau has died and accused Gufran and
Saddik are alive and are on bail.

4. Since accused Allau has died,
hence Criminal Appeal No.2010 of 2018
9 All. Ishtiyak Vs. State of U.P.
77
had
been
abated
vide
order
dated
11.01.2019.

5. Accused Ishtiyak has preferred
Criminal Appeal No.4700 of 2019 against
the judgment and order of conviction and
sentencing dated 27.06.2019 passed in ST
No.642-A of 1996 (State of UP Vs.
Ishtiyak) arising out of Case Crime No.121
of 1996, by Sri Gaurav Kumar Srivastava,
Special Judge (SC/ST Act), Azamgarh by
which the accused Ishtiyak was convicted
under Section 148 IPC for Rs.3,000/- as
fine, under Section 302/149 IPC for life
imprisonment and Rs.25,000/- as fine,
under Section 307/149 IPC for five years
rigorous imprisonment and Rs.5,000/- fine
with default stipulation and an amount of
compensation is also to be paid to the
widow Urmila Devi wife of the deceased
Faujdar.

6. In brief, facts of the case are that
informant Jagdish son of Ram Singar
Harijan moved a written complaint dated
21.04.1996 at Police Station Kotwali
Deogaon, District Azamgarh that in the
night of 21.06.1996 at about 12:45 a.m.
Allau, Ismidar, Gufran, Ishtiyak, Jahid and
Saddik who have enmity with Kalpnath of
his village on account of a litigation in
which scuffle had taken place last year and
he had testified himself, reached at his door
with country-made pistol and revolver and
exhorted to kill him. In the meantime, Allau
fired at his brother Faujdar which hit him.
Hearing the hue and cry villagers Nandlal,
Vikrama and other villagers reached there.
By then Saddik with an intention to kill
him fired upon him from which he
narrowly escaped. The incident was seen
by several persons present on the spot.
Abusing them the accused persons had
returned. Keeping the injured Faujdar on
the cot when he was coming to the police
station, Faujdar fell unconscious on the
way (Faujdar later on succumbed). Hence,
FIR be lodged and necessary action be
taken.

7. On the basis of above written
complaint an FIR at Crime No.121 of 1996,
under Sections 147, 148, 149, 302, 307,
504, 506 IPC and Sections 3(1)(x), 3(2)(v)
of the Scheduled Caste and Scheduled
Tribe (Prevention of Atrocities) Act, 1989
(in short 'the SC/ST Act') had been lodged
at
01:50
a.m.
on
21.06.1996.
The
investigation officer (IO) recorded the
statement, prepared site plan and other
papers and after recording the statement of
the witnesses submitted the charge sheet
against the accused Allau, Ismidar, Gufran,
Ishtiyak, Jahid and Saddik under the
aforesaid
sections.
Learned
CJM,
Azamgarh took cognizance, provided the
copies of the prosecution papers to the
accused persons and committed the case to
the court of sessions. After hearing on the
framing of charge except accused Allau rest
of the accused persons were charged under
the aforesaid sections. Allau was charged
under Sections 147, 307/149, 302 IPC and
Sections 3(1)(x), 3(2)(v) SC/ST Act.
Accused persons denied the charges and
sought trial.

8. During the course of trial accused
Jahid and Ismidar died and accused
Ishtiyak had absconded, therefore, the case
with regard to accused Jahid and Ismidar
was abated and the case with regard to
accused Ishtiyak had been separated but
later on when he was arrested, his trial had
been conducted as ST No.642-A of 1996
(State of UP Vs. Ishtiyak).

9. In ST No.642 of 1996 following
witnesses
were
examined
by
the
prosecution:-
78 INDIAN LAW REPORTS ALLAHABAD SERIES
1
PW-1
Jagdish, informant
2
PW-2
Smt.
Urmila
w/o
deceased
faujdar
3
 PW-3
Swaminath
4
 PW-4
Anant Dev
5
PW-5
Arvind Kumar
6
 PW-6
Ganesh

10. In ST No.642 of 1996 following
documentary evidences were produced by
the prosecution:-

1
 Ex.Ka-1
Written complaint
2
Ex.Ka-2
Charge sheet
3
Ex.Ka-3
Site plan
4
Ex.Ka-4
Postmortem report
5
Ex.Ka-5
Chik FIR
6
Ex.Ka-6
Carbon copy kaymi case
GD
7
Ex.Ka-7
Photonash
8
Ex.Ka-8
Inquest report
9
Ex.Ka-9
Recovery
memo
with
regard to blood stained
piece
of
kathari
and
residue
of
rope
of
explosive substance
10
Ex.Ka-10
Search memo of house of
Nanhey
11
Ex.Ka-11
Search memo of house of
Kamruddin
12

Ex.Ka-12
Search memo of house of
accused Saddik
13

Ex.Ka-13
Search memo of house of
accused Allau
14
Ex.Ka-14
Search memo of house of
Saghir Ahmad

11. After closure of the evidence,
statements of the accused Allau, Saddik and
Gufran were recorded under Section 313
CrPC in which they denied the prosecution
case and alleged that there was false
deposition by the prosecution witnesses.
They further stated that their farm was near
the harijan basti which was often damaged
by them, because of which there was
regular altercation. They were trapped due
to village party-bandi. Accused persons did
not examine witnesses in defence but had
produced charge sheet No.344-B/2 from list
343-B.

(I)
Brief
discussion
on
the
statements of prosecution witnesses-

12. PW-1, informant, Jagdish has
deposed that his brother Faujdar had been
killed on 21.06.1996 at about 12:30 a.m.
He and his brother were laying nearby on
separate cots. He was laying on the cot and
after urinating he had not slept. There was
an enlightened electric bulb of 200 watt and
there was light in the nearby area. He saw
that accused Allau, Ismidar, Saddik, Jahid,
Ishtiyak and Gufran came there from the
east side. Allau, Jahid, Saddik, Ishtiyak and
Gufran had country-made pistol in their
hands. Ismidar had revolver in his hand.
The witnesses recognized the accused
Allau, Ismidar and Saddik in the court and
said that these people had also come there
and said that "kill the rascal". Allau first
fired at his brother Faujdar with a pistol
when they made-a-noise his mother and
sister-in-law, Nandlal and Vikram of his
village reached there. Saddik had also fired
at him with pistol but the bullet could not
hit him. The women of his house also
witnessed the incident. The accused ran
away abusing and throwing bombs to
spread panic. They took their injured
brother to Deogaon Police Station with the
help of some people. Due to injury his
brother had fainted on the way. On his
written complaint Ex.Ka-1, the FIR had
been lodged. His brother Faujdar was sent
from the police station to the PHC, Lalganj
in a government jeep. After leaving his
brother at the hospital he returned to the
9 All. Ishtiyak Vs. State of U.P.
79
village. Shiv Pujan of his village came
home and informed that his brother had
died. The accused have enmity with his
neighbour Kalpnath whose house was to
the south of his house.

13. The accused had severely beaten
Kalpnath with sticks, lathi etc. He had
given statement in support of Kalpnath,
therefore, accused were infuriated with
them. To the south of his cot there was cot
of Faujdar. Women of his family had slept
on the west side. There was blood on his
brother's cot. The IO had recorded his
statement.

14. PW-2, Smt. Urmila has deposed
that five years ago her husband had been
killed in the night at about 12:30 a.m. At
the time of incident her husband, brotherin-law, Jagdish and mother-in-law Dilraji
were sleeping side by side with the children
at the same place. By then Allau, Gufran,
Ismidar, Saddik and Ishtiyak came from
east side. Allau had country-made pistol in
his hand, Ismidar was carrying a revolver.
Rest of the accused had arms in their hands.
Accused Allau killed her husband Faujdar
with country-made pistol. The bullet hit
him. Rest of the accused were shouting and
saying that kill the bastard. Witnesses
Nandlal, Vikram etc. had reached there.
Accused Saddik shot at her brother-in-law,
Jagdish with a country-made pistol but he
survived as the bullet could not hit him.
Her husband Faujdar was taken to Deogaon
Hospital on a cot. Due to bullet injury her
husband died on the way. The IO had
recorded
her
statement.
She
knows
Kalpnath of her village. Before this
incident there was a criminal case between
Kalpnath of her village, the accused Allau
and others. In that case, his brother-in-law
Jagdish had testified against the accused,
that is why they harboured enmity.

15. PW-3, Swaminath CO, IO Circle
Lalganj has deposed that prior to him the
case was investigated by his predecessor
Anant Dev Tiwari. He recorded the
statement of accused Allau in paper no.3. In
paper
no.4
he
observed
the
earlier
statement, copied the inquest and recorded
the statement of witnesses Nand Lal,
Vikram,
Kalpnath,
Manilal,
Janardan
Gautam, Smt. Urmila and Smt. Dilraji. On
29.06.1996 and on 02.07.1996 he had
recorded the statement of SI Suresh Rai,
Constable Govind Pandey and Harishankar
Prasad. On 05.07.1996 he had recorded the
statement of Dr. Sanjiv Kumar Gupta SI
Mohd. Saeed and accused Gufran, Ishtiyak
and Jahid. He had also recorded the
statement of Head Constable Ram Sudh
and after finding charges proved against the
accused persons, he had submitted the
charge-sheet against the accused Allau,
Ismidar, Gufran, Ishtiyak, Jahid and Saddik
under Sections 147, 148, 149, 307, 302,
504, 506 IPC and Sections 3(1)(x), 3(2)(v)
of the SC/ST Act witnesses proved the
charge sheet Ex.Ka-2.

16. PW-4, Anant Dev, IO has deposed
that on the day of occurrence he was posted
as CO Lalganj when the aforesaid case was
lodged in Kotwali Deogaon. He had
initiated the investigation. He prepared
paper no.1 and copied chik FIR and
amendment under Section 302 IPC and
after endorsing injury letter, he reached on
CHC, Lalganj and directed SI Mohd. Saeed
to conduct inquest. After reaching on the
spot,
he
recorded
statement
of
the
informant Jagdish and on his pointing
inspected the place of occurrence and
prepared site plan Ex.Ka-3. He also
recorded the statement of Shiv Pujan,
Ramjeet and Harish Chandra in paper
no.1A. People had jammed the road for the
incident. After convincing them, he raided
80 INDIAN LAW REPORTS ALLAHABAD SERIES
the accused persons on 22.06.1996 and
accused Ismidar and Saddik were arrested
and
their
statements
were
recorded
thereafter he was transferred.

17. PW-5, Arvind Kumar has deposed
that he had come with postmortem report
registered in his register dated 21.06.1996.
PM No.381/1996 is being noted in the hand
writing and signature of Dr. Sanjiv Kumar
its original inquest is on the file. The
register was compared and found correct on
which Ex.A-4 was inserted.

18. Autopsy of the dead body of the
deceased
Faujdar
was
conducted
on
21.06.1996 at 03:15 p.m. in which the
external injury was 1cm x 1cm with margin
inverted in left gluteal region deep x cavity.
No blackening or tattooing was found. The
doctor had received a bullet from the bottom.
In the opinion of the doctor cause of death
was due to ante mortem injury on the body
and also shock and haemorrhage. Thus, this
witness has given secondary evidence with
regard to the postmortem report.

19. PW-6, Ganesh Yadav has given
secondary evidence regarding chik FIR and
kaymi case GD which was written by
Constable Moharrir Ram Sudh. He deposed
that he has seen him reading and writing
and he recognizes his writing and signature
very well. The chik FIR and kaymi case
GD Ex.Ka-5 and Ex.Ka-6 respectively is in
his hand writing and signature. This
witness has also given secondary evidence
with regard to the inquest prepared by SI
Suresh Ram and has deposed that he has
seen
him
reading
and
writing.
He
recognized and proved the inquest and
other papers Ex.Ka-9 to Ex.Ka-14.

20. So far as the trial of the
absconding accused Ishtiyak is concerned,
after recording the evidence of PW-1 to
PW-5 accused Ishtiyak had absconded and
after his surrender further trial with regard
to accused Ishtiyak had been concluded.
The accused Ishtiyak had also denied the
prosecution story, charges and the evidence
produced by the prosecution and has said
the prosecution story to be false and that
the witnesses have falsely deposed against
him. The criminal case has been initiated
on account of enmity and refused to adduce
any evidence in defence. He further stated
himself to be innocent and to have been
falsely implicated on account of enmity.

21. Both the trial courts concluded
that all the accused persons were the
residents of same village and witnesses of
fact were well aware with them and they
had also been recognized committing the
alleged crime in the light of the enlightened
bulb.

22. In Criminal Appeal No.2916 of
2018 accused Gufran and Saddik have
taken ground that the order of conviction
and
sentencing
passed
against
the
appellants is against the weight of evidence
on record and against the law. The accused
have not caused any injury either to the
deceased or to the informant. The sentence
awarded to the appellants is too severe.
Hence, the appeal be allowed and the
impugned judgment and order be set aside.

23. In Criminal Appeal No.4700 of
2019, the accused Ishtiyak has taken
ground that conviction and sentencing
passed against the appellant is against the
weight of evidence on record and against
the law. The accused has not caused any
injury either to the deceased or to the
informant. The sentence awarded to the
appellant is too severe. The appellant has
falsely been implicated due to bad and
9 All. Ishtiyak Vs. State of U.P.
81
malicious motive. He is neither previous
convict nor wanted in any criminal case nor
he has any criminal history except present
what appears to be false and fabricated
case. The judgment and order of the trial
court is not sustainable in the eyes of law.
Hence, the appeal be allowed and order of
conviction and sentence recorded by the
trial court be set aside.

(II) Discussion on the merit on the
following issues-

(i) FIR

24. In this case, FIR against the
named accused persons has been lodged
just after the incident and thus there is no
delay or defect in lodging the FIR.

(ii) Motive

25. In this case, no motive has been
assigned in the FIR but during the
statement under Section 161 CrPC and also
in the statement before the court all the
witnesses have given motive behind the
commission of crime that prior to this
incident, there was enmity between the
accused persons and neighbour Kalpnath
who belongs to his community. Earlier,
accused persons had badly beaten Kalpnath
by stick and hockey etc. regarding which
PW-1 had deposed against the accused
persons, therefore, they were annoyed.
Prior enmity has also been accepted by the
accused persons in their statement under
Section 313 CrPC. Thus, it is proved that
there was enmity between the parties.
Enmity is double edged weapon, it may be
a cause to commit the offence and also to
falsely implicate the accused persons, it has
to be seen later on that this incident had
occurred on account of prior enmity or
accused
persons
had
been
falsely
implicated. In this regard the legal
proposition has been stated in Nagraj Vs.
State, (2015) 4 SCC 739; Wakkar and
others Vs. State of UP, (2011) 3 SCC 306
and Nathuni Yadav and others Vs. State
of Bihar and another, (1998) 9 SCC 238.

(iii) Mens rea

26. The prosecution case is that on
account of prior enmity accused persons
had formed an unlawful assembly and
reached on the spot with deadly weapons to
commit murder of the informant but they
targeted the deceased easily. Crime is a
wrong to the society involving breach of
law which has criminal consequences
attached to it, i.e. prosecution by the State
in the criminal court and the possibility of
punishment being imposed on the wrong
doer. The concept of crime is dynamic in
nature and it keeps on changing with
changes in social norms, values and
perceptions about wrongful human conduct
in a society. Such as in case of live-inrelationship.

27. There are following elements of
crime:

(i) there should be an overt act
(actus) or omission;

(ii) it should have been done with
criminal intent (mens rea);

(iii) the act or omission, as the
case may be, should be a prohibited
conduct under the existing law of crimes;
and

(iv) it should carry some kind of
sanction by way of punishment.

28. So far the overt act or omission is
concerned, mere intention or mens rea shall
not by itself constitute a crime unless it is
accompanied by external overt act. The
criminal law not only holds the person who
82 INDIAN LAW REPORTS ALLAHABAD SERIES
has committed a crime liable to be
punished, an attempt to commit a crime is
also an offence punishable under Sections
511 and 307 IPC.

29. So far the second ingredients is
concerned, mens rea or guilty mind is an
essential ingredient of a crime which may
be direct, indirect or implied. The implied
mens rea is also turned as constructive
mens rea which imposes absolute liability
on the offender. Irrespective of the fact
whether he knew that what was doing was
a crime or not. For instance, a person
selling adulterated food or edible item shall
be held guilty and cannot be escaped saying
that the actual adulterator was his master.

30. In the context of mens rea, a
distinction has to be drawn between
intention and motive. Mens rea means
guilty mind. What is relevant in deciding
the guilt of the offender is intention of
doing with particular act i.e. crime and not
the motive behind doing that act. An act to
be treated as crime, should be prohibited or
forbidden under the existing penal law.

31. As a general rule, the burden of
proof in a criminal case lies on the
prosecution because of the principle that an
accused is presumed to be innocent until he
is proved guilty. In case of any doubt
regarding participation or involvement of
the accused in the crime, he is entitled to
the benefit of doubt and may be discharged
or acquitted. Where two similar possibility
of guilty of offence do not arise, the benefit
shall go to the accused and he shall be
acquitted.

32. The normal rule is that a person
should be held liable for an act and no one
can be penalized for the act of the other but
there are exceptions that on the basis of
collective responsibility another person
participating slightly in the offence may be
punished.

33. Here, it is the case of the
prosecution that on account of prior enmity
accused persons had formed an unlawful
assembly and reached on the spot to
commit murder of the informant but they
targeted the deceased easily.

(iv) Inquest

34. In this case inquest Ex.Ka-8 has
been conducted within the reasonable time
just after the incident. The witnesses of the
inquest have also stated that the alleged
offence had been caused by the accused
persons by fire arm. At the time of inquest,
copy of the FIR and the chik FIR and after
conversion of the case into Section 302 IPC
amended parcha were also annexed by the
IO with the inquest report. After the
inquest, the dead body was sent for
postmortem where postmortem had been
conducted by Dr. Sanjiv Kumar Gupta. The
postmortem report Ex.Ka-4 has been
proved
by
PW-5,
Arvind
Kumar,
Pharmacist.

35. As per postmortem report, the
cause of death was shock and haemorrhage
as a result of firearm injury. A bullet was
also recovered from the dead body.

36. After inspecting the place of
occurrence, the IO had prepared the site
plan Ex.Ka-3 in which all the relevant facts
have
been
shown
and
mentioned.
According to site plan, accused persons had
fired from place-A, seven steps away from
the cot where the deceased had slept. The
accused persons had come from the northeast side and after committing the offence
they dispersed towards south-east from the
9 All. Ishtiyak Vs. State of U.P.
83
place of occurrence. No argument has been
advanced by learned counsel for the
appellant regarding any discrepancy in the
site plan.

(v) Witnesses

37. Relation witnesses & interested
witnesses: The testimony of a witness in a
criminal trial cannot be discarded merely
because the witness is a relative or family
member of the victim of the offence. In
such a case, court has to adopt a careful
approach in analysing the evidence of such
witness and if the testimony of the related
witness
is
otherwise
found
credible,
accused can be convicted on the basis of
testimony of such related witness. (see
Bhagwan Jagannath Markad Vs. State of
Maharashtra, (2016) 10 SCC 537; Dhari
and others Vs. State of UP, AIR 2013 SC
308).

38. Inimical witnesses: Enmity of the
witnesses with the accused is not a ground
to reject their testimony and if on proper
scrutiny, the testimony of such witnesses is
found
reliable,
the
accused
can
be
convicted. However, the possibility of
falsely involving some persons in the crime
or exaggerating the role of some of the
accused by such witnesses should be kept
in mind and ascertained on the facts of each
case. (see Dilawar Singh Vs. State of
Haryana, (2015) 1 SCC 737; Ramesh
Harijan Vs. State of UP, (2012) 5 SCC
777).

39. Independent witnesses & effect
of their non-examination: If a witness
examined in the court is otherwise found
reliable and trustworthy, the fact sought to
be proved by that witness need not be
further proved though there may be other
witnesses available who could have been
examined but were not examined. Nonexamination of material witness is not a
mathematical formula for discarding the
weight of the testimony available on record
however
natural,
trustworthy
and
convincing it may be. It is settled law that
non-examination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution case
with a stroke of pen. Court can convict an
accused on statement of a sole witness even
if he is relative of the deceased and nonexamination of independent witness would
not be fatal to the case of prosecution. (see:
Mukesh and another Vs. State (NCT of
Delhi) and others, AIR 2017 SC 2161
(Three-Judge
Bench);
Sadhu
Saran
Singh Vs. State of UP and others, (2016)
4 SCC 357 and Avtar Singh Vs. State of
Haryana, (2012) 9 SCC 432.

40. When independent witness won
over by the accused: Non- examination of
independent
eye
witnesses
is
inconsequential if the witness was won
over or terrorised by the accused. (see
Dharnidhar Vs. State of UP and others,
(2010) 7 SCC 759; Dalbir Kaur and
others Vs. State of Punjab, (1976) 4 SCC
158).

41. Public prosecutor not bound to
examine all witnesses: Explaining the
provisions of Sections 231, 311 CrPC and
Sections 114, 134 of the Evidence Act, the
Supreme Court had ruled that prosecution
need not examine its all witnesses.
Discretion
lies
with
the
prosecution
whether to tender or not witness to prove
its
case.
Adverse
inference
against
prosecution
can
be
drawn
only
if
withholding of witness was with oblique
motive.
(see
Bhagwan
Jagannath
Markad (supra); Nand Kumar Vs. State
of Chhatisgarh, (2015) 1 SCC 776;
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Rohtas Kumar Vs. State of Haryana,
2013
CrLJ
3183
SC). Thus,
nonexamination of other witnesses is not fatal
for the prosecution.

42. Witnesses when partly reliable
& partly unreliable: Maxim "falsus in
uno, falsus in omnibus" is not applicable in
India. Principle of "false in one, false in all"
cannot be applied in relation to the
depositions of a witness who has been
found lying on a particular fact and whose
remaining part of testimony is otherwise
truthful. Even if major portion of evidence
of a witness is found deficient but residue
is sufficient to prove the guilt of the
accused, notwithstanding the acquittal of
number of co-accused-conviction can be
recorded. (see Mani Vs. State, 2009 (67)
ACC 526 (SC); Kalegura Padma Rao
and another Vs. State of AP, AIR 2007
SC 1299; Kulvinder Singh Vs. State of
Punjab, AIR 2007 SC 2868).

43. Mode of Assessing reliability of
a witness: In Lallu Manjhi and another
Vs. State of Jharkhand, AIR 2003 SC
854, the Supreme Court has laid down
certain factors to be kept in mind while
assessing the testimony of a witness: "The
Law of Evidence does not require any
particular number of witnesses to be
examined in proof of a given fact.
However, faced with the testimony of a
single witness, the Court may classify the
oral testimony into three categories, namely
(i) wholly reliable, (ii) wholly unreliable
and (iii) neither wholly reliable, nor wholly
unreliable. In the first two categories there
may be no difficulty in accepting or
discarding the testimony of the single
witness. The difficulty arises in the third
category of cases. The Court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon testimony of a single
witness".

44. Eye witnesses and how to judge
their credibility: If the testimony of an eye
witness is otherwise found trustworthy and
reliable, the same cannot be disbelieved
and
rejected
merely
because
certain
insignificant,
normal
or
natural
contradictions have appeared into his
testimony.
If
the
inconsistencies,
contradictions,
exaggerations,
embellishments and discrepancies in the
testimony are only normal and not material
in nature, then the testimony of an eyewitness has to be accepted and acted upon.
Distinctions between normal discrepancies
and material discrepancies are that while
normal discrepancies do not corrode the
credibility of a party's case, material
discrepancies do so. (see Ashok Kumar
Chaudhary Vs. State of Bihar, 2008 (61)
ACC 972 (SC); Dimple Gupta (minor)
Vs. Rajiv Gupta, AIR 2008 SC 239).

45. It is a night occurrence which had
been occurred at the house of the
informant, therefore, PWs-1 and 2 are the
real, truthful and natural witnesses and their
testimony cannot be discarded.

(vi) Source of light

46. According to the accusedappellants, the Lalganj Electric Feeder was
not working since ten days before the
incident. In this regard, no document
regarding
non-activation
of
Lalganj
Electric Feeder has been produced from the
defence side. Though a suggestion in this
regard has been given to the informant PW1 but neither any cross-examination in this
regard has been made from PW-2 nor any
suggestion has been given that the Lalganj
9 All. Ishtiyak Vs. State of U.P.
85
Electric Feeder was not working at that
time. Hence, it is concluded that this plea
has been taken only for the sake of
argument and it has no substance.

47. Identification of accused by
witnesses in poor light, no light or
darkness: In criminal trials, argument by
defence is often advanced that because of
poor light, no light or darkness or night, the
PWs could not have identified the accused.
But in the cases noted below, the Supreme
Court has clarified that a witness, who is
accustomed to live in darkness, poor light
or no light, can identify the accused even in
such conditions.

48. It was a trial under Section 302/34
IPC. Accused were known to PWs.
Occurrence had taken place at about 11:00
p.m, two days prior to the new moon day.
Parties were used to live in the midst of
nature and accustomed to live without light.
Further, they were close relatives and living
in the neighbouring huts. In view of these
facts, the defence contention that the ocular
witnesses could not have witnessed the
occurrence was rejected by the apex court
and
conviction upheld.
(see
Shivraj
Bapuray Jadhav and others Vs. State of
Karnataka, (2003) 6 SCC 392).

49. It was a murder trial. The victim
had
himself
signed
the
FIR,
made
statements under Section 161 CrPC and
died on way from police station to hospital.
Occurrence had taken place at about 08:00
to 09:00 p.m. in the night. Victim and the
witnesses had recognized the accused even
in the night. Accused had challenged the
deceased with insulting utterances before
firing at him. The victim and the eye
witnesses who were present at about 8 to
10
steps
away
from
the
place
of
occurrence, had, therefore, full opportunity
to identify the accused. Conviction was
upheld. (see Gulab Singh Vs. State of UP,
2003 (4) ACC 161 All (DB).

50. It was a criminal trial under
Section 302/149, 201 IPC. Place of
occurrence was verandah of the deceased.
Lanterns (two) were said to be kept and
lighting on the verandah near the place of
occurrence. Mother, sister and neighbour of
the deceased, being eye witnesses, had
deposed during trial to have identified the
accused persons in such poor light.
Accused were convicted by the trial court.
Argument of the accused/appellants before
Supreme Court was that the two lanterns
said to be kept on the verandah (place of
occurrence)
were
neither
seized
nor
produced before the court and even if it is
supposed that the lanterns were there on the
floor of the verandah, the lanterns could
cast their light near the floor and, therefore,
it was not possible for the eye witnesses to
have identified the accused persons in such
poor light even if the place of occurrence
was verandah or courtyard. The Supreme
Court rejected the argument and held "as
the incident took place in village and the
visibility of villagers are conditioned to
such lights and it would be quite possible
for the eye witnesses to identify men and
matters in such light". (see Ram Gulam
Chowdhary Vs. State of Bihar, 2001 (2)
JIC 986 SC).

51. In this case, the deceased was
murdered by the accused in the night while
issuing copies of voter list and caste
certificates and the hurricane lamp said to
be lighting near the place of occurrence
was not seized and produced by the
investigating officer. The defence argument
was that the eye witnesses could not have
identified the accused as the hurricane lamp
said to be the only source of light was not
86 INDIAN LAW REPORTS ALLAHABAD SERIES
produced by the prosecution in the court.
The
Supreme
Court,
upholding
the
conviction by rejecting the argument, held
that it could legitimately be inferred that
there would be some source of light to
enable the deceased to perform his job. (see
B. Subba Rao Vs. Public Prosecutor,
High Court of AP, 1998 (1) JIC 63 SC).

52. "The visible capacity of urban
people who are acclimatized to fluorescent
light is not the standard to be applied to
villagers whose optical potency is attuned
to country made lamps. Visibility of
villagers is conditioned to such lights and
hence it would be quite possible for them to
identify men and matters in such lights".
(see Kalika Tewari Vs. State of Bihar, JT
1997 (4) SC 405).

53. Where the murder had taken place
at night and the source of light was not
indicated in the FIR and the accused and
the eye witnesses were closely related, it
has been held by the Supreme Court that
the evidence of eye witnesses cannot be
discarded. (see State of UP Vs. Sheo Lal,
AIR 2009 SC 1912).

54. Where the witness had stated that
he had seen the attack in the light of scooter
head light, it has been held that mere
absence of indication about source of light
in FIR for identifying assailants does not in
any way affect the prosecution version. (see
S. Sudershan Reddy Vs. State of AP, AIR
2006 SC 2716).

55. Moonless night & when torch
not taken into possession by IO: Where
the murder had taken place in a moonless
night and the eye witnesses had stated that
they had identified the accused in torch
light but the torch had not been taken into
possession by the IO and both the parties
belonged to he same village and were well
known to each other, it has been held that
merely because non taking of torch into
possession by the ASI would not mean that
witnesses were not credible and conviction
under Sec 302 IPC was held proper. (see
Durbal Vs. State of UP, 2011 CrLJ 1106
SC).

56. On the basis of above, it is
concluded that there was light and as the
accused persons were well acquainted with
the witnesses, thus, they were rightly
recognized on the place of occurrence and
their presence cannot be doubted.

57. In this regard, it is material that a
plea has been taken that on the date and
time of occurrence accused Saddik and
Jahid were not present at their house and
were out of village but in this regard
neither statement nor evidence has been
given by these accused persons in their
examination under Section 313 CrPC or in
defence. Neither such cross-examination
has been made from PW-2 nor any
suggestion in this regard has been given to
PW-2. Hence, this Court is of the
conclusion that the argument that on the
date and time accused Saddik and Jahid
were not present has been made only for
the sake of argument and there is no truth
in it.

58. From the side of the appellants
only one argument has been made in the
appeals that except Allau none of the
convicts had attacked upon the deceased,
informant PWs-1 and 2 or any other family
members of the deceased. Hence, their role
is separable from that of the accused Allau.

59. In this case accused Allau, Jahid
and Ismidar have died. Accused Gufran and
Saddik had faced trial in ST No.642 of
9 All. Ishtiyak Vs. State of U.P.
87
1996 but accused Ishtiyak had escaped and
he appeared only after a long gap in the
year 2018 and he was separately tried in ST
No.642-A of 1996.

60. In this case as the accused Allau
had died it has been argued that the
deceased, Faujdar was attacked by him
from katta, rest of the accused persons
would not be liable under Sections 147,
148, 302/149 IPC.

61. As per prosecution case and
evidence accused Allau had killed Faujdar
from katta, accused Ismidar had revolver in
his hand and accused Ishtiyak, Gufran and
Saddik had also katta in their hands. It was
a night occurrence which had occurred at
about 12:30 a.m. when most of the villagers
are in deep sleep. From the prosecution
evidence and circumstances, it appears that
the accused persons had chosen odd hours
so that no or least resistance could be faced
from the side of the informant. At that time
target remains passive.