# Israfeel v. State of U.P

- **Citation:** (2022) 5 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** Criminal Appeal No. 36 of 2009
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/israfeel-v-state-of-u-p-48607
- **Pages:** 17

## Headnote

A. Criminal Law
-Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860-Sections 364, 302 &
201-challenge to-conviction-broad day
light murder-strong motive to commit
the murder-appellant has done to death
the deceased in a brutal manner, by
stabbing him with bodkin (sooja) on his
neck-as per medical report injuries could
be
attributable
by
bodkin
(sooja)-
statements of eye-witnesses, PW1, PW2
& PW3 fully supported the prosecution
story-there
was
previous
enmity
between the appellant and the deceased
about which an FIR was lodged earlier,
it shows clear motive on the part of the
appellant to commit the murder of the
deceased-the order passed by trial court
convicting the appellant for offence in
question is upheld.(Para 1 to 55)

B. It is a settled principle of law that the
evidence tendered by the related or
interested witness cannot be discarded
on that ground alone. However, as a rule
of prudence, the Court may scrutinize
the
evidence
of
such
related
or
interested witness more carefully. Close
relationship
of
witness
with
the
deceased or victim is no ground to reject
his evidence. On the contrary, close
relative of the deceased would normally
be most reluctant to spare the real
culprit and falsely implicate an innocent
one. (Para 43)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

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5 All. Israfeel Vs. State of U.P.
9
(2022)05ILR A9
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 36 of 2009

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

Counsel for the Appellant:
J.N. Singh, Avdhesh Kumar Singh Yadav,
Manendra Nath Rai, Shraddha Tripathi,
Vijay Prakash Srivastava

Counsel for the Opposite Party:
G.A.

A. Criminal Law
-Code of Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code,1860-Sections 364, 302 &
201-challenge to-conviction-broad day
light murder-strong motive to commit
the murder-appellant has done to death
the deceased in a brutal manner, by
stabbing him with bodkin (sooja) on his
neck-as per medical report injuries could
be
attributable
by
bodkin
(sooja)-
statements of eye-witnesses, PW1, PW2
& PW3 fully supported the prosecution
story-there
was
previous
enmity
between the appellant and the deceased
about which an FIR was lodged earlier,
it shows clear motive on the part of the
appellant to commit the murder of the
deceased-the order passed by trial court
convicting the appellant for offence in
question is upheld.(Para 1 to 55)

B. It is a settled principle of law that the
evidence tendered by the related or
interested witness cannot be discarded
on that ground alone. However, as a rule
of prudence, the Court may scrutinize
the
evidence
of
such
related
or
interested witness more carefully. Close
relationship
of
witness
with
the
deceased or victim is no ground to reject
his evidence. On the contrary, close
relative of the deceased would normally
be most reluctant to spare the real
culprit and falsely implicate an innocent
one. (Para 43)

The appeal is dismissed. (E-6)

List of Cases cited:
1. Namdeo Vs St. of Mah. (2007) 14 SCC 150 :
(2009) 1 SCC (Cri) 773,

2. Ilangovan Vs St. of T.N. (2020) 10 SCC 533

3. Sudhakar Vs St. (2018) 5 SCC 435

4. C.Muniappan Vs St. of T.N. (2010) 9 SCC
567

5. Bhagwan Singh Vs The St. of Har.(1976)AIR
SC 202

6. Rabindra Kumar Dey Vs St. of Ori. (1977) AIR
SC 170

7. Syad Akbar Vs St. of Karn. (1979) AIR SC
1848

8. Khujji @ Surendra Tiwari Vs St. of M.P.
(1991) AIR SC 1853

9. St. of U.P. Vs Ramesh Prasad Misra & anr..
(1996) AIR SC 2766

10. Balu Sonba Shinde Vs St. of Mah. (2002) 7
SCC 543

11. Gagan Kanojia & anr.. Vs St. of Punj.
(2006) 13 SCC 516

12. Radha Mohan Singh @ Lal Saheb & ors.. Vs
St. of U.P.(2006) AIR SC 951

13. Sarvesh Naraian Shukla Vs Daroga Singh &
ors. (2008) AIR SC 320 Subbu Singh Vs St.
(2009) 6 SCC 462

(Delivered by Hon'ble Ramesh Sinha, J.)
10 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The appellant- Israfeel and coaccused Kamil and Manjoor were tried by
Additional Sessions Judge/ Fast Track
Court No.2, Bahraich in Sessions Trial No.
58 of 2001 : State Vs. Israfeel and Ors.,
arising out of Case Crime No. 115 of 2000,
under Sections 364, 302, 201 I.P.C., police
station Baundi, District Bahraich.

2. Vide judgment and order dated
18.11.2008 passed in Sessions Trial No. 58
of 2001, the Additional Sessions Judge/
Fast Track Court No.2, Bahraich, acquitted
the
co-accused
persons,
Kamil
and
Manjoor, giving benefit of doubt, for the
offence punishable under Section 364/34,
302/34, 201 I.P.C. but convicted and
sentenced the convict/ appellant- Israfeel in
the manner as stated herein below :-

"i. Under Section 302 I.P.C. to
undergo imprisonment for life with fine of
Rs.2,000/- and in default of payment of fine
to further undergo one year of additional
simple imprisonment;

ii. Under Section 364 I.P.C. to
undergo rigorous imprisonment of ten years
with a fine of Rs.1,000/- and in default of
payment of fine to further undergo six
months of additional simple imprisonment;
and

iii. Under Section 201 I.P.C. to
undergo rigorous imprisonment of five
years with a fine of Rs.1,000/- and in
default of payment of fine to further
undergo six months of additional simple
imprisonment."

All the sentences were directed to
run concurrently.

3. Feeling aggrieved by his conviction
and sentence vide aforesaid judgment and
order dated 18.11.2008, convict/ appellant,
Israfeel, preferred the above-captioned
appeal before this Court.

4. It is pertinent to mention that State
of U.P. has not filed any appeal against
acquittal of co-accused persons, Kamil and
Manjoor, for the offence punishable under
Section 364/34, 302/34, 201 I.P.C.

5. As per the prosecution case, the
informant Ibrahim (P.W.1), who is the brother
of deceased Rashid, had lodged F.I.R.,
presenting written report (Ext. Ka.1) on
17.11.2000 at police station Fakarpur, district
Bahraich, alleging therein that on 17.11.2000, at
around 1:30 p.m., when he had gone for Namaz
at Dhakerwa Mosque, Rahmulla (P.W.3), son of
Gulam, resident of his village, came at
Dhakerwa Mosque and informed him that his
brother Rashid (deceased) was caught hold by
Israfeel (convict/appellant) and two other
persons accompanied with Israfeel (convict/
appellant), pierced bodkin (sooja) in the throat
of his brother (deceased Rashid) and also took
away his brother (deceased) on a bicycle. The
said incident was also witnessed by one Lalta,
(brother of C.W.1 Samwali Prasad), son of
Saktu and his brother Naseem (P.W.2), son of
Kallu, resident of Natthupur Mauja Dhakerwa,
and many other people of the village. After
Namaz when Imam (priest) got up, he
immediately went to village Nandval and from
P.C.O. of one Ramesh Gupta, he telephonically
informed about the aforesaid incident to police
station Baundi and police station Fakarpur and
also asked for help. Thereafter, he sent his men
all around the area in search of his brother
(deceased Rashid). However, when he reached
village Fakarpur after chasing he saw that
Israfeel (appellant) had run away, after throwing
his brother Rashid (deceased) in a pond near
Ramleela ground. The dead body of his brother
Rashid (deceased) was lying in the pond.

6. The written report (Ext Ka.1) was
got scribed by informant Ibrahim (P.W.1)
by a person outside the police station
Fakarpur and after affixing his signature
5 All. Israfeel Vs. State of U.P.
11
thereon, reached the police station Fakarpur
and lodged F.I.R.

7. The evidence of P.W. 5-Constable
Moharrir Sudhir Kumar Tiwari shows that
on 17.11.2000, he was posted as Constable
Moharrir at police station Fakarpur. On the
said date, at around 4:30 p.m., on the basis
of written report (Ext. Ka.1) submitted by
Ibrahim (P.W.1) at police station Fakarpur,
he registered Case Crime No. Nil/2000
under Section 302 I.P.C at police station
Baundi. He proved the chik F.I.R. (Ext.
Ka.3) and G.D. (Ext. Ka.4).

8. The evidence of P.W.6- S.S.I. Shri
Malkhe Dixit shows that the investigation
of the case was conducted by Sri Virendra
Singh Yadav, who subsequently died. In his
examination-in-chief, P.W.6 had deposed
before the trial Court that on the date of the
incident, i.e. 17.11.2000, he was posted as
Sub-Inspector at police station Fakarpur
and on the said date, at 4:30 p.m., he
conducted ''Panchayatnama' of dead body
of the deceased Rashid. He sent the dead
body of the deceased for post-mortem in a
sealed
condition.
He
proved
the
''Panchayatnama' (Ext. Ka.5). He seized the
weapon of assault, i.e. iron bodkin (sooja),
under a recovery memo (Ext. Ka.7). He
further deposed that he was acquainted
with the handwriting and signature of the
Investigating Officer of the case, Sri
Virendra Singh Yadav, who died. The
recovery memo (Ext. Ka. 8) pertaining to
blood soaked soil and plain soil was in the
handwriting
and
signature
of
the
Investigating Officer of the case, Virendra
Singh Yadav. He proved the photo lash
(Ext. Ka.9), site plan (Ext. Ka. 10, Ext. Ka.
11, Ext. Ka.12), and charge-sheet Nos.
96/2000 (Ext. Ka.13) and 96-A of 2000
(Ext. Ka. 14) prepared by the Investigating
Officer Sri Virendra Singh Yadav.

P.W.6 had further deposed that he
sent the letter to C.M.O. for post-mortem
(Ext. Ka. 15), Form No.33 (Ext. Ka. 16),
letter to R.I. (Ext. Ka.17), specimen seal
(Ext. Ka.18, Ext. Ka.19) under his
handwriting and signature. He also proved
the weapon of assault, i.e. blood stained
bodkin (sooja) (Ext. Ka. 3) as well as blood
stained pants of the appellant- Israfeel
(Ext.-4).

In his cross-examination, P.W.6
had deposed before the trial Court that in
the year 2000, he was posted at police
station Fakarpur. F.I.R. related to deceased
Rashid was registered at his police station
Fakarpur. The information about the death
of deceased Rashid came to his knowledge
from the written report submitted by
Ibrahim (P.W.1). In the written report of
Ibrahim (P.W.1) it was also mentioned that
dead body of deceased Rashid was thrown
by appellant Israfeel in the pond situated in
Ramleela ground (Fakarpur Market). When
he reached at the spot (near the dead body),
he did not find accused/appellant Israfeel
there.

P.W.6 had further deposed that
accused Israfeel was found on the way
before he reached near the dead body. The
appellant was arrested and sent to police
station. The blood stained bodkin (sooja)
was recovered on the spot. A lot of blood
was
present
on
the
body
of
the
convict/appellant when he was arrested. At
first glance, appellant Israfeel seemed to be
as an accused. On being asked, he
(appellant) told his name as Israfeel. He
recovered bodkin (sooja) from the right
hand of accused/ appellant Israfeel in
midway and he prepared memo (Ext. Ka. 6)
of the recovered bodkin (sooja), on the spot
of recovery. He admitted the fact that in the
recovery memo of bodkin (sooja) (Ext. Ka6), which was in his handwriting and
signature, the place of recovery of bodkin
12 INDIAN LAW REPORTS ALLAHABAD SERIES
(sooja) and place of arrest of the
accused/appellant has not been mentioned.
The first witness of the memo was Subhash
Chandra
Verma,
resident
of
village
Dhakerwa, whereas second witness of
memo
was
Sanwali
Prasad
(C.W.1),
resident of Saktupur, police station Baundi.
There were no witnesses of this memo
belonging to Fakarpur market, as he made
the people as witness whom he met on the
spot. The deceased Rashid was resident of
village Dhakerwa and was real brother of
informant Ibrahim (P.W.1). There was no
signature of any Constable on the recovery
memo of bodkin (sooja), however, on the
memo of bodkin (sooja) (Ext. Ka-6), his
signature was there (P.W.6), Subhash
Chandra and Sanwali (C.W.1). He denied
the suggestion that he prepared recovery
memo Ext. Ka-6 at the instance of the
informant and other witnesses.

P.W.6 had further deposed that
in the memo of clothes (Ext. Ka-7), there
were signatures of witnesses Uttam
Kumar and Ali Hasan, residents of village
Natthupur
police
station
Baundi,
however, there was no signature of any
constable on it. There were different
witnesses of the memo of bodkin (sooja)
dated 17.11.2000 and memo of clothes
dated 17.11.2000. The witnesses were
resident of police station Baundi. He
further deposed that though he prepared
memos Ext. Ka-6 and Ext. Ka-7 but when
he prepared Ext. Ka-6, no crime number
was marked on the F.I.R relating to the
incident.

P.W.6 had further deposed that
''Panchayatnama' (Ext. Ka-5) was in his
handwriting but case crime number was
not mentioned on it. All the witnesses of
''Panchayatnama'
were
residents
of
village
Natthupur,
Dhakerwa,
police
station Baundi. The ''Panchayatnama' was
prepared on the spot.

9. The post-mortem of dead body of
Rashid (deceased) was conducted on
18.11.2000 at 03:15 p.m., in District
Hospital, Bahraich, by Dr. R.C. Singh
(P.W.4), who found the following antemortem injuries on the dead body of Rashid
:-

"Ante-mortem
injuries
of
deceased Rashid :

1. Multiple punctured wounds in
the front of the neck in an area of 12 cm X
12 cm, of varying sizes 1 cm X 0.5 cm to
1.5 cm X .70 cm, of varying depth.
Underlying muscles, trachea, blood vessels
and oesophagus found punctured and
lacerated.

2. Multiple punctured wounds on
back of neck, in an area of 9 cm X 3 cm, of
muscle deep, situated 2 cm below occipital
prominence, 6 cm behind Rt. Ear, 5 cm
behind Lt. Ear.

The cause of death spelt out in
the post-mortem report by P.W.4 Dr. R.C.
Singh was shock and hemorrhage as a
result of ante-mortem injuries sustained by
the deceased.

10. P.W. 4-Dr. R.C. Singh, in his
examination-in-chief, had reiterated the
aforesaid cause of death of the deceased
and deposed before the trial Court that on
18.11.2000, he was posted as Medical
Officer at District Hospital, Bahraich. On
the said date, he conducted the postmortem of dead body of deceased Rashid,
which was brought in sealed condition by
Constable
Ram
Prakash
Singh
and
Rajendra Nath. He further deposed that
deceased Rashid was aged about 23 years;
rigor mortis was present in both lower
limbs and upper limbs; eyes were closed;
mouth was half opened; and he died a day
ago. He proved the post-mortem report
(Ext. Ka-2). On internal examination, he
5 All. Israfeel Vs. State of U.P.
13
found that urinary bladder was empty;
faecal matter and foul smelling gases were
filled in large intestine; oesophagus was
found lacerated; blood vessels of the neck
was found lacerated; and food pipe was
also found punctured. He further deposed
that deceased Rashid possibly died on
17.11.2000 at 01:30 p.m. and both the antemortem injuries could be inflicted on the
person of the deceased at the place of
occurence by iron bodkin (sooja).

In his cross-examination, P.W.4
had deposed before the trial Court that
injuries inflicted on the neck of the
deceased could not be caused by falling on
any sharp edged object and such injuries
could not even be inflicted by fall.

11. The case was committed to the
Court of Sessions by the Chief Judicial
Magistrate, Bahraich vide order dated
20.04.2000 and the trial Court framed
charges against accused persons including
convict/appellant for the offence punishable
under Sections 302, 201, 364/34 I.P.C.
They pleaded not guilty to the charges and
claimed to be tried. Their defense was of
denial.

12. During trial, the prosecution in
support of its case examined six witnesses,
namely, P.W.1- Ibrahim, who is the
informant and brother of the deceased;
P.W.2- Naseem, who is the brother of P.W.1
and eye-witness of the incident; P.W.3-
Rahmulla, who is independent witness;
P.W.4- Dr. R.C. Singh, who conducted
post-mortem examination of the corpse of
the deceased Rashid; P.W.5- Constable
Moharrir Sudheer Kumar Tiwari, who
lodged FIR on the basis of written report
submitted by informant Ibrahim; and
P.W.6-SSI
Shri
Malkhe
Dixit,
who
conducted the ''Panchayatnama' of the dead
body of the deceased Rashid and sent it for
post-mortem. The trial Court had also
examined Sanwali Prasad as C.W.1; Raeesh
as C.W.2 and Maksood as C.W.3.

13. Reverting to the testimony of the
witnesses of fact, P.W. 1-Ibrahim, in his
examination-in-chief, had deposed before
the trial Court that his brother's name was
Rashid (deceased). He and his brother
Rashid (deceased) used to work in Delhi
and appellant Israfeel also worked in Delhi.
From Delhi, they got acquainted with each
other, on account of which, Israfeel
(convict/appellant) used to visit his village.

P.W.1 had further deposed that
about 11⁄2-2 months ahead of the incident,
some altercation took place between him
(P.W.1), his brother (deceased- Rashid) and
Israfeel (convict/appellant) on the issue of
money transactions. His brother Rashid
(deceased)
gave
money
to
Israfeel
(appellant). At that time, convict/ appellant
Israfeel (appellant) told his brother Rashid
that "ऐसा करोगे तो मैं तुम्हें मार द ूंगा", to
which his brother (Rashid) told to Israfeel
(convict/appellant) that "तुम क्या मारोगे".

After about four years of this
incident, he went to Dhakerwa mosque for
Namaz at around 1:15 p.m. During the
course of ''Namaz', he heard the voice of
Rahmulla (P.W.3) of his village that Israfeel
and his two companions caught his brother
(deceased Rashid) and assaulted him. After
offering ''Namaz', he asked everyone for
help. Thereafter, he went to Haar near
Mahua tree situated in the outskirts of
Dhakerwa
village
where
Israfeel
(appellant) and his two companions were
said to have caught his brother (deceased
Rashid), but he did not find anyone there.
However, the people present there told him
(P.W.1) that Israfeel (appellant) and his two
companions took away his brother (Rashid-
14 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased) towards eastern side on a
bicycle. From there, he rushed towards
Gupta P.C.O. at Nandval, from where he
telephonically informed about the incident
to police station Baundi-Kaiserganj as well
as at police station Fakarpur. After that he
came to Dhakerwa village and from there,
he went towards Fakarpur village to search
his brother. When he was about to reach
Fakarpur, he saw that many people had
gathered near Fakarpur culvert (puliya).
The people present there told him (P.W.1)
that accused persons (including convict/
appellants), after killing his brother (Rashid
-deceased), took him on bicycle and went
towards the Fakarpur market just now. He,
thereafter, immediately rushed towards
Fakarpur market.

P.W.1 had further deposed that on
the culvert (puliya), where the people were
gathered and told him that his brother Rashid
(deceased) was killed there, he saw stains of
blood there. When he reached Fakarpur
market, then, the people present there told him
that accused persons went towards Ramleela
Ground from Fakarpur Market and when he
reached 30 steps before the pond of Ramleela
ground, he saw that Israfeel (convict/appellant)
had thrown his brother (Rashid- deceased) into
the pond from the culvert (puliya) near the
pond and ran towards Ramleela ground. He,
thereafter, reached near his brother and saw
that his brother was dead. On account of fear,
he could not dare to chase the accused persons
and the accused persons fled away. He further
deposed that he did not see two assailants who
accompanied convict/appellant Israfeel as they
had run away from Fakarpur market. He
proved written report (Ext. Ka-1).

P.W.1 had further deposed that the
Investigating Officer had inspected the place
where Israfeel (convict/appellant) killed his
brother and the place where his dead body was
thrown.

In cross-examination, P.W.1 had
deposed before the trial Court that he was
not an eye-witness of the incident and got
the report scribed on the basis of what
people told him. P.W.1 did not see anyone
killing his brother. The bodkin (sooja) with
which Israfeel killed his brother was
recovered from the possession of Israfeel
(convict/appellant).

P.W.1 had further deposed in his
cross-examination that Lalta and Naseem
(P.W.2) accompanied him when he was
searching for his brother. There was blood
near culvert in Fakarpur. The people
present near the culvert, when his brother
was thrown, narrated him (P.W.1) the
incident and they were from Fakarpur area
and all of them told him (P.W.1) that Kamil
and Manjoor were also there with Israfeel
(appellant) but despite that, the witness
wrote
report
only
against
Israfeel
(appellant). There was no enmity of coaccused Manjoor with his brother Rashid
(deceased) nor did he knew him before the
incident.

P.W.1 had further deposed that
when he reached Fakarpur police station
for lodging F.I.R., Israfeel (appellant) was
in lock up at Fakarpur police station and in
his presence, Inspector Dixit asked Israfeel
(appellant) about the incident. He got his
report scribed from some person outside
the police station. He further deposed that
when he reached police station Fakarpur,
the Inspector and Constable asked him the
reason for his arrival at police station, to
which he told him that he had come to
lodge report of the murder of his brother
but he did not tell that his brother was
killed by three persons. He stayed at police
station
at
about
1-2
hours.
The
''Panchayatnama' of the dead body of this
brother (Rashid) was conducted in the
courtyard of police station. At that time, his
5 All. Israfeel Vs. State of U.P.
15
relatives and other people of the village
were present there.

P.W.1 had further deposed that he
came to know the telephone numbers of all
the three police station from Gupta P.C.O.
When he informed about the incident to
three police stations, he only told the name
of Israfeel (appellant) and did not tell
names of the rest of the accused persons.
None of his relatives told about the incident
that they had also seen the incident. He
denied the suggestion that he didn't see any
incident and that the report of the incident
was written by him at police station.

14. P.W. 2- Naseem had deposed that
deceased Rashid was his brother. Before
the incident, he, deceased Rashid and
convict/appellant Israfeel used to work in
Delhi. Israfeel (convict/appellant) knew
him and also got acquainted with him and
his brother Rashid from Delhi itself. Before
the incident Israfeel (appellant) visited his
village. The policemen had earlier arrested
Israfeel (appellant) in some other incident.
At that time, Israfeel (appellant) was
enlarged on bail on the surety of father of
the witness and Israfeel (appellant) had no
suspicion at that time that he was
implicated by them. There was enmity
between Rashid (deceased) and Israfeel
(convict/
appellant)
with
regard
to
transaction of money only.

P.W.2
further
deposed
that
incident was of 4-41⁄2 years ago. His brother
Rashid was going for ''Namaz'. At that time,
he was near brick kiln (bhatta). From brick
kiln
(bhatta),
he
saw
that
Israfeel
(appellant) had caught hold his brother
Rashid near Mahua tree. On his hue and
cry, Rahmulla (P.W.3) rushed to his brother
Ibrahim (P.W.1) at Mosque and told him the
incident.
He
saw
that
Israfeel
(convict/appellant) stabbed in throat of his
brother Rashid (deceased) with bodkin
(sooja) and two other men were also
present with Israfeel (appellant) but he did
not knew other two men, who were armed
with ''addhi' (small gun) and ''katta'
(country made pistol), prior to the incident.
When Rahmulla (P.W.3) informed about the
incident to his brother Ibrahim (P.W.1),
then Ibrahim (P.W.1) went to Gupta PCO,
where from his brother Ibrahim (P.W.1)
telephonically informed police stations
Fakarpur Baundi and Kaiserganj about the
incident. After ''Namaz' was over, they
chased
the
accused
persons.
Israfeel
(appellant) carried his brother Rashid
(deceased) on bicycle; killed him (deceased
Rashid) on the culvert near Fakarpur; and
threw him in the pond. Thereafter, his
brother Ibrahim (P.W.1) went to police
station and lodged a report. On the same
day Fakarpur police had arrested Israfeel
(appellant),
however,
his
other
two
companions ran away from Fakarpur
market itself.

In his cross-examination, P.W.2
deposed that he did not know accused
Manjoor and Kamil prior to the incident.
He had neither ever seen them before the
incident nor did he knew their relation with
the convict/ appellant. He never told
anyone till date that in the said incident
Israfeel (appellant) was accompanied with
Manjoor and Kamil because he did not
know
Manjoor
and
Kamil.
The
Investigating
Officer
interrogated
him
about
the
said
incident.
The
two
companions who accompanied Israfeel had
covered their faces with towel (angaucha)
because of which he could not identify
them.

15. P.W. 3- Rahmulla, in his
deposition before the trial Court, deposed
that he knew deceased Rashid. The
deceased Rashid was murdered around five
16 INDIAN LAW REPORTS ALLAHABAD SERIES
years ago on Friday (jumma). At the time of
incident, he was going to Dhakerwa
Mosque for Namaz and when he reached
near brick kiln (bhatta), he saw that twothree men took away Rashid (deceased)
and amongst them, he only identified
Israfeel (convict/appellant). He told this
incident to P.W.1 Ibrahim (brother of
deceased-Rashid) at the mosque. Ibrahim
(P.W.1) was standing in the congregation of
prayers and the congregation had already
stood up, therefore, they did not go in
search of deceased Rashid and started
offering Namaz. After offering Namaz, he
did not go in search of Rashid (deceased)
but he went to Samda market. After that, he
did not know whether these people killed
Rashid (deceased) or what they did,
because he went from Samda market to his
old house at Belhari. The witness was
declared hostile by the prosecution.

In
his
cross-examination
by
Additional District Government Counsel,
his statement recorded by the police under
Section 161 Cr.P.C. was read over to P.W.3
but he denied to give such statement to the
police that when he reached near the brick
kiln of Qazmi, Rashid (deceased) shouted
and thereafter Israfeel stabbed in the throat
of Rashid with bodkin (sooja). He deposed
that he told the Investigating Officer that
Rashid (deceased) was taken away on a
bicycle. He saw the altercation between
convict/appellant and the deceased but he
did not see Israfeel (appellant) assaulting
the deceased. Thereafter, he deposed that
Israfeel (appellant) was assaulting Rashid
(deceased). He denied the suggestion that
he gave false statement due to fear of
accused Israfeel (appellant) and other
accused persons.

16. C.W. 1- Sanwali Prasad had
deposed before the trial Court that Ibrahim
(P.W.1) was a resident of his village.
Convict/appellant Israfeel knew him. When
the Investigating Officer had recovered the
bodkin (sooja) from the possession of
Israfeel (appellant), Subhash was also
present there. The recovered bodkin (sooja)
was stained with blood. The Investigating
Officer had sealed the recovered bodkin
(sooja) in a cloth and after documentation
got his signatures on it. He had never seen
Israfeel (appellant) killing anyone with
bodkin (sooja). His house was 9 kms away
from Fakarpur police station. Appellant
Israfeel was arrested near Fakarpur police
station. He was not there when Israfeel
(appellant) was arrested. He came there
after half an hour of arrest of Israfeel
(appellant) and then the police told him that
bodkin
(sooja)
was
recovered
from
Israfeel's (appellant) possession. There was
blood on bodkin (sooja). After that it was
sealed by keeping it in a cloth. Based on
what the policemen told, he came to know
that bodkin (sooja) was recovered from
Israfeel's possession.

In
his
cross-examination,
he
deposed that bodkin (sooja) was recovered
from the possession of Israfeel (appellant)
in front of him by the Investigating Officer.
Subhash was also with him at that time. On
being questioned by the trial Court about
his contradictory statement he told that on
asking of Advocate of Israfeel he stated that
he knew about the recovery of bodkin from
the possession of Israfeel, whereas on
asking of Public Prosecutor, he stated that
the bodkin was recovered by the Inspector
in his presence. C.W.1 had deposed that
bodkin (sooja) was recovered in front of
him by the Investigating Officer.

17. C.W. 2- Raeesh had deposed
before the trial Court that Ibrahim (P.W.1)
did not know him. He had no knowledge
5 All. Israfeel Vs. State of U.P.
17
about the murder of Ibrahim's brother.
Around 8 years ago, dead body of a man
was found from a pond located near
Ramleela ground near Fakarpur town. He
did not know his name because he was not
present on the spot at that time but had
gone to one relative in Huzurpur on his
death ceremony. He heard about the said
dead body. The police did not record his
statement. However, his statement under
Section 161 Cr.P.C. was read over to him,
he told that he had not given any such
statement. The Inspector did not interrogate
him. The Investigating Officer took his
thumb impression on a plain paper, in
which nothing was written, nor was
anything
read
over
to
him.
The
Investigating Officer did not collect blood
soaked soil and plain soil from the spot in
his presence.

In his cross-examination, C.W.2
deposed before the trial Court that Munna
Lal, son of Pyare Lal, is resident of his own
village.
Ibrahim
(P.W.1),
son
of
Noormohammed, is also resident of his
village. The blood stained soil and plain
soil was not collected from WazirganjFakarpur road at a distance of about half
kilometers nor was it sealed by keeping it
in a cloth. He denied the suggestion that the
Investigating
Officer
collected
blood
soaked soil and plain soil in containers and
sealed before him. He deposed that he did
not see Israfeel (appellant) killing Rashid
(deceased) with a bodkin (sooja).

18. C.W.3- Maksood has deposed
before the trial Court that Ibrahim (P.W.1),
resident of village Natthupur police station
Baundi, was his brother-in-law's brother.
He went to the funeral of deceased Rashid.
He did not know how Rashid (deceased)
died. He didn't even ask anyone whether
Rashid (deceased) was killed by someone
or died himself. He has not seen Rashid
(deceased) being killed by Israfeel with
bodkin (sooja). He didn't even hear that the
dead body of Rashid (deceased) was found
in a pond near Ramleela ground near
Fakarpur town because at that time he had
gone to Lucknow to do palledari (hostage
work). The Investigating Officer neither
took his statement nor did any inquiry from
him.

In his cross-examination, C.W.3
deposed that he did not know Israfeel
(appellant). He deposed that he did not
gave statement to Investigating Officer that
Israfeel, son of Akbar Ali, along with his
two
companions
had
caught
Rashid
(deceased) between Natthupur-Dhakherwa.
He denied to know anything about the
incident. He did not know how Rashid
(deceased) died. The Investigating Officer
did not record his statement.

19. In the statement recorded under
Section 313 Cr.P.C., the convict/appellant
had stated that he lodged a case under
section 308 I.P.C. at Police Station Jama
Masjid, Delhi against Ibrahim (P.W.1) and
Rashid (deceased) stating that he was
assaulted by Ibrahim (P.W.1) and deceased
(Rashid) at Delhi. On account of this
enmity, he was falsely implicated in the
instant case by the informant Ibrahim
(P.W.1).

20. The learned trial Judge believed
the evidences, prosecution witnesses, as
well as C.W.1-Sanwali Prasad, and found
appellant Israfeel guilty for the offences
punishable under Sections 364, 302 and
201
I.P.C.
and,
accordingly,
while
acquitting two accused persons Kamil and
Manjoor, convicted and sentenced the
appellant Israfeel in the manner stated
herein-above in paragraph-2.
18 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Hence the instant appeal.

22. Heard Shri Manendra Nath Rai
assisted by Ms. Shraddha Tripathi, learned
counsel for the convict/appellant and Shri
Dhananjay Kumar Singh, learned A.G.A.
for the State/ respondent.

23. Learned Counsel for the appellant
has argued that admittedly, P.W. 1-Ibrahim,
who is the real brother of deceased, is not
an eye-witness of the occurrence because
he was informed about the incident by
P.W.3-Rahmulla, when P.W.1-Ibrahim was
offering ''Namaz', to the effect that the
deceased was done to death by the
convict/appellant Israfeel and two of his
companions at village Natthupur Mauja
Dhakerwa on 17.11.2000 at 1:30 pm and
after offering Namaz, P.W.1- Ibrahim went
to village Nandval to Gupta P.C.O. from
where P.W.1 informed at police station
Fakarpur about the said incident and
thereafter he (P.W.1) along with other
persons in the village started searching for
his brother and while searching he reached
Fakarpur and saw that his brother's body
was thrown in a pond by appellant Israfeel
who had fled from there. He argued that
P.W.3- Rahmulla, who has seen the incident
and informed P.W.1- Ibrahim about the
incident, has not supported the prosecution
case and has turned hostile, thus, the
prosecution case does not deserve to be
believed.

24. It has further been argued by
learned counsel for the appellant that
P.W.2-Naseem, who is the brother of the
deceased, is also not an eye-witness of the
incident as he had not seen the appellant
committing the murder of the deceased,
hence his testimony is also under the clouds
of doubt. Thus, he argued that P.W.1Ibrahim and P.W.2-Naseem being the
brothers of the deceased are highly
interested and partisan witnesses and their
presence at the place of incident also
appears to be doubtful, hence, their
testimony cannot be said trustworthy.

25. Elaborating his submissions,
learned Counsel for the appellant has
further argued that though the testimony of
P.W.2 was not a reliable one, but even then
the trial Court on the basis of the evidence
of P.W.2- Naseem has recorded the finding
of guilt of appellant by means of impugned
order, hence, the findings recorded by the
trial Court are erroneous.

26. The next argument of the learned
Counsel for the appellant is that on account
of paucity of money, the convict/appellant
could
not
engage
an Advocate
for
contesting the case on his behalf before the
trial Court, thus, amicus curiae was
appointed by the trial Court, and when the
examination-in-chief of P.W.1- Ibrahim,
P.W.2- Naseem and P.W.3-Rahmulla were
recorded by trial Court, no opportunity for
cross-examination of these witnesses was
afforded to the convict/appellant by the trial
Court. Thus, the testimonies of P.W.1,
P.W.2 and P.W.3 remain unrebutted.

27. It has further been argued by
learned counsel for the appellant that coaccused Kamil and Manjoor have been
acquitted by the trial Court on the ground
that the prosecution has failed to prove its
case beyond reasonable doubt against the
said two co-accused persons but the trial
Court
erred
in
convicting
the
convict/appellant on wrong pretext.

28. Learned Counsel for the appellant
has further argued that recovery of the
blood stained bodkin (sooja), which is said
to have been recovered from possession of
5 All. Israfeel Vs. State of U.P.
19
the appellant, is a false one, as the witness
of recovery, namely, Sanwali Prasad, was
summoned as C.W.1, who stated before the
trial Court that he had not seen the
convict/appellant
causing
injuries
by
bodkin (sooja) to deceased (Rashid). He
argued that it is apparent from the crossexamination of C.W.1- Sanwali Prasad that
he was told by police personnel that a
bodkin (sooja) has been recovered from the
possession of appellant Israfeel. C.W.1
further stated that when the appellant was
arrested, many people were gathered there
at that time and thereafter he reached there.
He submitted that other witnesses of the
recovery namely, Subhash has not been
cross-examined by the prosecution. Thus
the recovery of weapon of assault, which is
said to be recovered from the possession of
appellant, is not reliable.

29. It has also been argued by the
learned counsel for appellant that the F.I.R.
is an anti-timed document, as in the
recovery memo and the ''Panchayatnama',
no case crime number and details of the
present case have been mentioned. Thus,
the prosecution case is liable to be thrown
out on this ground alone.

30. Lastly, learned Counsel for the
appellant argued that the appellant is in
jail for the last 17 years. He argued that
P.W.1- Ibrahim and his brother Rashid
(deceased) had assaulted him in Delhi and
he had lodged the case under Section 308
IPC against them at police station Jama
Masjid in Delhi and because of this
enmity, the appellant has been falselyroped in, in the present case. He argued
that the trial Court misread the evidence
on record and erred in convicting the
appellant in the present case, hence, the
impugned judgment is liable to be set
aside and appellant be acquitted.

31. Per contra, learned AGA for the
State
has
vehemently
rebutted
the
arguments of learned counsel for the
appellant and submitted that the incident
took place in broad daylight at 1:30 p.m. in
village Natthupur Mauja Dhakerwa. The
incident was witnessed by Naseem (P.W.2),
the real brother of deceased (Rashid), along
with Rahmulla (P.W.3). Soon after the
incident Rahmulla (P.W.3) went to mosque
where Ibrahim (P.W.1) was offering Namaz
and informed him about the incident and
stated that Rashid (deceased) was assaulted
by appellant Israfeel with bodkin (sooja).
Thereafter, Ibrahim (P.W.1) immediately
informed the police station about the
incident from the P.C.O. of one Ramesh
Gupta from village Nandval and went to
place of occurrence searching for his
brother along with other persons of the
village and saw the appellant throwing the
dead body of deceased in a pond which was
in village Fakarpur near Ramleela ground.
He further argued that informant P.W.1Ibrahim, immediately after the incident,
lodged a prompt F.I.R. at police station
Fakarpur on the same day at 16:30 hours
against the appellant Israfeel and two
unknown persons.

32. Learned AGA further argued that
P.W.2- Naseem had witnessed the incident
in which his brother Rashid (deceased) was
murdered by appellant Israfeel with bodkin
(sooja). The deceased Rashid sustained
multiple punctured wounds on his neck and
ocular testimony of P.W. 2- Naseem fully
corroborates the post-mortem report of
deceased Rashid.

33. It is further argued by learned
AGA that P.W.3- Rahmulla, who is an
independent eye-witness of the occurrence,
has informed the informant P.W.1-Ibrahim
about
the
incident.
P.W.3,
in
his
20 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief
and
crossexamination, admitted the fact that he knew
deceased Rashid, who was taken away by
two-three persons, out of whom he
identified the appellant only and he
informed about the said fact to P.W. 1-
Ibrahim, who was offering Namaz at
mosque, though he has not stated that it
was the appellant who had committed the
murder of the deceased Rashid. He
submitted that P.W. 3- Rahmulla has been
declared hostile. Thus, P.W.3 has not
supported
the
prosecution
case.
He
submitted that simply because P.W. 3-
Rahmulla became hostile, his testimony
cannot be discarded by this Court on this
ground alone as the Court has to consider
the evidence of the hostile witness to that
extent
to
which
it
corroborate
the
prosecution case.

34. It was further submitted by
learned A.G.A. that appellant Israfeel was
given several opportunities by the trial
Court to cross examine P.W.1- Ibrahim,
P.W.2- Naseem and P.W.3-Rahmulla and he
was also afforded the services of Amicus
Curiae by the trial Court and further he
engaged a counsel of his choice, but they
failed to appear and did not cross-examine
P.W.1- Ibrahim, P.W.2- Naseem and P.W.3Rahmulla, hence the opportunity to crossexamine
P.W.1-
Ibrahim
and
P.W.2-
Naseem was closed by the trial Court as is
evident from the order sheet of the trial
Court. He submitted that Ibrahim (P.W.1)
and Naseem (P.W.2) were not deliberately
cross-examined by the appellant's counsel
before the trial Court, though, the formal
witnesses who have appeared thereafter
before the trial Court, were cross-examined
by the appellant, which otherwise speaks
about the conduct of the appellant and his
Counsel for not cross-examining Ibrahim
(P.W.1) and Naseem (P.W.2) for the
appellant Israfeel, for which no one can be
put to fault except the convict/appellant
(Israfeel) himself and his Counsel.

35. Learned AGA has further argued
that blood stained bodkin (sooja) (Ext. Ka6) was recovered from the possession of
appellant Israfeel and the deceased was
also assaulted by the appellant Israfeel on
the date of incident and he was arrested on
the date itself. At the time of arrest, the
clothes of convict/ appellant were also
found stained with blood, for which a
recovery memo (Ext.Ka.7) was prepared
and
further
blood
soaked
soil
was
recovered from place of occurrence, which
was proved as Ext. Ka-8.