# Kallu & Ors v. State of U.P

- **Citation:** (2023) 9 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-06
- **Case number:** Criminal Appeal No. 677 of 2002
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallu-ors-v-state-of-u-p-50722
- **Pages:** 9

## Headnote

Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
642 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860-Sections 307, 325, 324, 323,
504
&
506-Challenge
to-Conviction-
Enmity between two sides is an admitted
fact- the accused persons, in a wellplanned manner attacked two persons of
the complainant side and caused them
injuries from fire arms, a banka and a
laathi- The nature of the weapon used, the
manner in which it was used, the motive,
the nature of the injuries caused, the
parts of the body where the injury was
inflicted, may be some of the factors
which give definite indications towards
the presence or lack of intention or
knowledge-there is no evidence to show
that the accused persons tried to shoot
the injured on some vital part of the body,
but somehow it hit his lower limbs- The
accused persons were having a banka
which is a sharp-edged weapon and
dangerous too, but only one blow was
caused to injured causing injury on his
iliac spine area which was subcutaneous
deep- The other injured sustained three
injuries subcutaneous deep, all below
knee, not a single incised wound has been
caused to him on any vital part of his
body, this injured sustained two injuries
caused by blunt weapon on his hands,
except one caused by blunt object on right
upper limb, rest all the injuries were
simple in nature-The Court cannot give
any conclusion on the basis of surmises
and conjunctures-if all the injuries are
cumulatively considered, it is not safe to
convict the accused persons for offence
under section- 307/34 I.P.C.-there was
definitely an intention to cause hurt and
grievous hurt by using such weapons like
banka, fire arm and laathi-The prosecution
has proved the offence of section- 323/34,
324/34 and 325/34 I.P.C. against the
accused persons beyond reasonable doubt
by producing trustworthy, ocular and
documentary
evidence-Hence,
the
impugned judgment is hereby modified
and the accused-appellants are acquitted
of the charges under section- 307/34
I.P.C. Rest of the judgment and sentence
is affirmed.(Para 1 to 23)

B. The evidence of an injured witness has
to be appreciated keeping in view that
ordinarily
a
person
who
has
been
assaulted by someone would not allow
him to go scot free and falsely implicate
persons other 14 than those who actually
assaulted him. The evidence of injured
witness stand on different pedestal as
compared to any other witness cited by
the prosecution as eyewitness who claims
to have seen the incident. (Para 15)
The appeal is partly allowed. (E-6)

List of Cases cited:

Ramkrishna Vs St. of Har. (2004) AIR SC 4678

## Text

9 All. Kallu & Ors. Vs. State of U.P.
641
or any reason which could have prompted
the witnesses to identify falsely the accused
as one of the dacoits or to doubt the
identification
evidence
given
by
the
prosecution.

15. The evidence produced by
prosecution proves the fact that there were
more than five persons who committed the
dacoity. What was the fate of other persons,
whether they were apprehended, whether
they were put to trial, whether they were
acquitted has no bearing in the instant case.
The important thing is that there were more
than
five
persons
who
conjointly
committed the dacoity.

16. The learned trial court has
elaborately dealt with the evidence produced
by the prosecution and took up all the
arguments advanced on behalf of the defence
systematically and found the charges as
having been proved beyond reasonable
doubt. The learned trial court relied upon the
judgments of Supreme Court given in
Sampat
Tatiya
Shinde
vs.
State
of
Maharashtra, 1974 SCC (Criminal) 382 and
Surendra Narayan @ Munna Pandey vs.
State of U.P., 1998, SC Crl. Rul. 508 to
support the finding that the identification of
the accused during the recording of evidence
is substantive one and the conclusions drawn
or the result of identification proceeding has a
corroborative value only.

17. I agree with the opinion of the
trial court; the learned trial court has also
tested the regularity of identification
proceedings and found that it was carried
out as per the rules and regulations and
retained its corroborative value.

18. I do not find any infirmity in the
inference drawn by the trial court. The
judgment of the trial court is sound on facts
as well as law and there is no merit in
appeal.

19. Accordingly, this criminal appeal
is
dismissed.
Accused-appellant
shall
immediately surrender before the court
concerned to undergo remaining portion of
the sentence. The sureties are hereby
discharged from their liability.

20. Copy of this order shall be
immediately transmitted to the court
concerned for compliance.

21. A copy of the judgment be also
handed over to the accused/his counsel free
of cost immediately.

22. The court concerned shall transmit
a copy of the judgment to concerned
Superintendent of District Jail for handing
over the same to the accused when he is
taken into custody and is lodged therein.
----------
(2023) 9 ILRA 641
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Appeal No. 677 of 2002

Kallu & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Prem Shanker, R.N.S. Chauhan

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
642 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860-Sections 307, 325, 324, 323,
504
&
506-Challenge
to-Conviction-
Enmity between two sides is an admitted
fact- the accused persons, in a wellplanned manner attacked two persons of
the complainant side and caused them
injuries from fire arms, a banka and a
laathi- The nature of the weapon used, the
manner in which it was used, the motive,
the nature of the injuries caused, the
parts of the body where the injury was
inflicted, may be some of the factors
which give definite indications towards
the presence or lack of intention or
knowledge-there is no evidence to show
that the accused persons tried to shoot
the injured on some vital part of the body,
but somehow it hit his lower limbs- The
accused persons were having a banka
which is a sharp-edged weapon and
dangerous too, but only one blow was
caused to injured causing injury on his
iliac spine area which was subcutaneous
deep- The other injured sustained three
injuries subcutaneous deep, all below
knee, not a single incised wound has been
caused to him on any vital part of his
body, this injured sustained two injuries
caused by blunt weapon on his hands,
except one caused by blunt object on right
upper limb, rest all the injuries were
simple in nature-The Court cannot give
any conclusion on the basis of surmises
and conjunctures-if all the injuries are
cumulatively considered, it is not safe to
convict the accused persons for offence
under section- 307/34 I.P.C.-there was
definitely an intention to cause hurt and
grievous hurt by using such weapons like
banka, fire arm and laathi-The prosecution
has proved the offence of section- 323/34,
324/34 and 325/34 I.P.C. against the
accused persons beyond reasonable doubt
by producing trustworthy, ocular and
documentary
evidence-Hence,
the
impugned judgment is hereby modified
and the accused-appellants are acquitted
of the charges under section- 307/34
I.P.C. Rest of the judgment and sentence
is affirmed.(Para 1 to 23)

B. The evidence of an injured witness has
to be appreciated keeping in view that
ordinarily
a
person
who
has
been
assaulted by someone would not allow
him to go scot free and falsely implicate
persons other 14 than those who actually
assaulted him. The evidence of injured
witness stand on different pedestal as
compared to any other witness cited by
the prosecution as eyewitness who claims
to have seen the incident. (Para 15)
The appeal is partly allowed. (E-6)

List of Cases cited:

Ramkrishna Vs St. of Har. (2004) AIR SC 4678

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1 . During the course of hearing of this
appeal, the appellant no.1- Kallu died,
hence the appeal as regards him has abated.

2. Heard Sri R.N.S.Chauhan, learned
counsel for the appellant, Sri Rajesh Kumar
Shukla, learned A.G.A. for the State and
perused the material brought on record.

3. By means of this criminal appeal,
the
appellant
nos.2,
3
and
4-
Shamsuddin, Sarfuddin and Jamaluddin
have challenged the judgment and order
dated 16.05.2002 passed by the learned
Additional Sessions Judge (Court No.1),
Sitapur in S.T. No. 971 of 1997 "State vs.
Kallu and Others" arising out of Case
Crime No.79 of 1997, under sections- 307,
325, 324, 323, 504, 506 I.P.C., Police
Station- Rampur Kalan, District- Sitapur,
by which the appellants have been
convicted and sentenced for one year
rigorous imprisonment each under section
323 read with section 34 I.P.C., three years
of rigorous imprisonment each under
section 324 read with section 34 I.P.C.,
four years of rigorous imprisonment and
fine of Rs.2,000/- each under section 325
9 All. Kallu & Ors. Vs. State of U.P.
643
read with section 34 I.P.C. and seven years
of rigorous imprisonment and fine of
Rs.3,000/- each under section 307 read
with section 34 I.P.C.

4. The facts relevant for the purpose
of this criminal appeal are as below:-

* The first informant Farukh son
of Munir submitted a written report
alleging therein that his father Munir and
his uncle Abdul Karim had gone near a
pond to relieve themselves at 6:00 in the
morning of 12.04.1997; the accused persons
namely Kallu, Shamsuddin, Sarfuddin and
Jamaluddin resident of the same village, were
lying in wait; they suddenly came out and
attacked his father and uncle; Shamsuddin
and Jamaluddin fired at them from a countrymade fire arms; Kallu and Sarfuddin gave
them blows from laathi and banka; first
informant's father and uncle raised alarm;
accused persons fled away. Both of them
sustained serious injuries; they wanted to
take their life; the incident was witnessed by
Shamsher Ali and Mehndi Hasan.

* On the basis of the above
written report, an F.I.R. being Case Crime
No.79
of
1997
was
registered
and
investigated upon.

* The injured persons were
examined at Emergency of District Hospital,
Sitapur. The Investigating Officer proceeded
to inspect the spot. He took the statements of
the witnesses, collected the medical reports
and after completing the investigation
submitted a charge-sheet against all the four
named accused persons under sections- 307,
323, 324, 325, 504, 506 I.P.C.

* The case was committed to the
court of Sessions; all of them were put to
trial.

5.

The
prosecution
produced
following documentary evidence i.e. the
written tehrir, two X-ray reports, two injury
reports, chik F.I.R., copy of GD, the site
map, seizure of the soil sample, the chargesheet (Exhibit ka-1 to Exhibit ka-10
respectively).

6.

The
prosecution
examined
following witnesses:-

P.W.1-
Farukh
(the
first
informant)

P.W.2- Abdul Karim (the injured
witness)

P.W.3- Munir (second injured
witness)

P.W.4- Dr. A.K. Nigam (the
Radiologist)

P.W.5- Dr. A.K. Agrawal (the
doctor who examined the injuries sustained
by the injured witnesses)

P.W.6-
Shri
Krishna
Verma
(Constable)

P.W.7- Raghav Ram Yadav (the
Investigating Officer)

7. The statements of the accused
persons were recorded and after hearing
both the sides, the learned Sessions Court
convicted all the accused persons under
sections- 323 read with 34, 324 read with
34, 325 read with 34 and 307 read with 34
I.P.C. All of them were acquitted of the
charges under sections- 504 and 506 I.P.C.

8. Before taking up the contentions of
the appellants as well as the State, it shall
be
useful
to
briefly
reproduce
the
644 INDIAN LAW REPORTS ALLAHABAD SERIES
statements
given
by
the
prosecution
witnesses.

* P.W.1- Farukh who lodged the
F.I.R. in this case, stated on oath that all the
accused persons belonged to his village;
accused Kallu wanted to buy a house which
was purchased by the first informant's
uncle Abdul Karim about 15-20 years
before this incident; accused Kallu had
filed a civil case in this regard; the case was
won by his uncle Abdul Karim. Thereafter
they had an altercation between them,
culminating into physical fight. One of the
accused Sarfuddin had lodged a report of
that incident in the local police station; the
criminal case lodged by Sarfuddin is
pending; the accused persons nurtured
enmity against them. On the date of the
occurrence, his father and uncle had gone
to attend nature's call early in the morning.
When they were returning, Kallu exhorted
his sons to kill them; Kallu, Shamsuddin
and Jamaluddin suddenly came out from
wheat field and Sarfuddin came out of
thickets. Accused- Kallu was holding a
laathi, accused- Shamsuddin a desi fire
arm, accused- Sarfuddin a banka and
accused- Jamaluddin was holding a desi
gun; all of them attacked them.

Giving details of the incident, the
witness has said that Shamsuddin and
Jamaluddin opened fire upon his father;
Kallu and Sarfuddin gave him blows from
laathi and banka respectively. His uncle
Abdul Karim was given blows by Kallu
with laathi and by Sarfuddin with banka.
Hearing the noise, a number of people from
the village came in and the accused persons
escaped. The witness has identified his
signature on the written report and has
proved that he got lodged the F.I.R.

* P.W.2- Abdul Karim has
supported the prosecution case and has said
that all the four accused persons suddenly
attacked him when he was coming back
after
attending
the
nature's
call.
Shamsuddin and Jamaluddin fired open his
brother Munir, while Kallu and Sarfuddin
gave his brother blows from laathi and
banka. He too was given blows by Kallu
and
Sarfuddin.
The
accused
persons
escaped when the co-villagers came in to
rescue them. He has added that Kallu
wanted to purchase the same house which
was purchased by him at least 15-20 years
before the occurrence and that Kallu
wanted to illegally occupy the "sehen part"
of his house and they had a brawl over this
issue. A case regarding this dispute is still
pending.

* P.W.3- Munir has supported
the prosecution case and has told the same
story as told by P.W.2 in his testimony.

* P.W.4- Dr. A.K. Nigam has
prepared the X-ray reports and has proved
them.

* P.W.5- Dr. A.K. Agrawal has
stated that he examined the injuries
sustained by Munir on 12.04.1997 at 2:00
p.m. at District Hospital, Sitapur and found
two injuries of fire arm on his right and left
thighs; one incised injury on iliac spine;
two lacerations on his left side of the skull.

The witness has said that same
day at about 2:10 p.m., he examined the
injuries of injured Abdul Karim and found
swelling on right upper limb, contused
swelling on left upper limb, two incised
wound on right knee and one incised
wound near left ankle.
9 All. Kallu & Ors. Vs. State of U.P.
645

*
P.W.6-
Constable,
Shri
Krishna Verma is a formal witness who
has proved the Chik F.I.R. and the GD
Report No.11 at 8:30 p.m. of 12.04.1997.

* P.W.7- The Investigating
Officer who has, apart from proving papers
like charge-sheet and site-map etc., given
evidence regarding the investigation done
by him. The relevant portions shall be
referred to as and when required.

9. As per prosecution case, the
incident occurred at about 6:00 a.m. in the
morning on 12.04.1997 when father and
uncle of the first informant were returning
after relieving themselves from near a pond
on the southern side of the village. The
witnesses of fact P.W.2 and P.W.3, who are
the injured themselves, have given the
evidence in this regard and also about the
fact that the matter was reported to the
police station at about 8:30 a.m. i.e. within
two and a half hours from the incident. This
has come in evidence that the first
informant took both of the injured persons
on a handcart after arranging it from the covillagers. The distance of the police station
is about 3 kms. from the village. There is
consistent evidence that the injured were
also taken to the police station before they
were sent for medical examination.

10. Exhibit ka-7 G.D. in which the
entry regarding lodging of F.I.R. has been
made
corroborates
this
part
of
the
prosecution version that the injured persons
accompanied the first informant when the
F.I.R. was being lodged. The Exhibit ka-7
mentions those facts. Most importantly this
paper also mentions same kind of injuries
on the person of the injured as were found
in medical examinations. The F.I.R. in this
case has been lodged with reasonable
promptness ruling out any chances of
embellishments, introduction of colored
facts or false implication.

11. As far as the background in which
the incident took place is concerned, this
has clearly come in the evidence that both
the sides had long standing enmity over a
house and its "Sahan". It has come in the
evidence of P.W.1, P.W.2 and P.W.3 that
the accused Kallu (who is since been dead
and whose appeal has abated) wanted to
purchase the same house which was
purchased by the complainant side; this has
further come in the evidence that both were
neighbours and that there was also dispute
regarding possession over adjoining space
"Sahan"; a civil case regarding disputed
property was filed and was pending
between the two sides when this incident
occurred. A certified copy of the judgment
pronounced in Civil Appeal No.19 of 1993
dated 29.07.2014 (Kallu vs. Abdul Karim)
has been produced by the prosecution to
show that both the sides were engaged in
litigation over immovable property. The
witnesses have given evidence that before
the incident of the instant case took place,
there occurred one more criminal incident
for which an F.I.R. being Case Crime
No.23 of 1995, under sections- 324, 323,
504
I.P.C.
was
lodged
against
the
complainant side who included Abdul
Karim (P.W.2), Munir (P.W.3) and Farukh
(the first informant herein). All the
aforesaid
facts
and
circumstances
demonstrate that undisputedly both the
sides nurtured enmity against each other
over certain issues and were engaged in
civil as well as criminal litigations since
quite sometime before this occurrence.

12. The injured witnesses P.W.2 and
P.W.3 have given testimonies supporting
the prosecution case, proving that the four
accused persons lay in wait and were
646 INDIAN LAW REPORTS ALLAHABAD SERIES
hiding themselves in the wheat field and
behind thickets, before they found a chance
to pounce upon Abdul Karim and Munir.
This has clearly come in the evidence that
Jamaluddin and Shamsuddin were holding
fire arm each, Sarfuddin was holding a
banka (a sharp edged weapon) and Kallu
was holding a laathi. The prosecution has
been able to show that after the lodgement
of the F.I.R., the injured persons were sent
for medical examination and they were
examined at the District Hospital, Sitapur
between 2:00 p.m. and 2:10 p.m. Munir
sustained multiple fire arm wounds; first on
the interior and lateral aspect of left thigh
covering an area of 25cm x 10cm; second
on the interior and lateral aspect of right
thigh covering an area of 15cm x 10cm;
blackening was found present. This has
come
in
the
evidence
that
accused
Jamaluddin and Shamsuddin had fired on
Munir with the desi fire arms they were
having. The P.W.3 Munir has added that
after he was hit by fire arms, he tried to flee
towards the fields, then Sarfuddin and
Kallu chased him and caused him injuries
with banka and laathi. The medical report
shows that Munir sustained one incised
wound on his iliac spine area of the size of
5cm x 1cm and two lacerated wounds of
the size of 5cm x 0.5cm and of the size of
3cm x 0.5cm; both scalp deep and both on
left side of head. The doctor has proved
that the injuries were fresh. The injury
report further consolidates statements given
by the witnesses.

13. Second injured witness P.W.2-
Abdul Karim too has supported the
prosecution case and has given sufficient
details as regards the occurrence. Like
P.W.3 Munir, his evidence appears to be
credible and convincing. There appears no
discrepancies or any ground to doubt their
oral testimony.

14. The defence has contended that
P.W.1 the first informant did not see the
occurrence and that he was not an eyewitness, therefore his testimony is nothing
but hearsay. Another contention of the
defence is that no independent witness has
come out to support the prosecution case.

I went through the evidence on
record; the P.W.1 has said that when his
uncle and father were coming back after
attending nature's call he was going to same
place for the same purpose and he with his
own eyes saw the accused persons assaulting
and causing injuries to his father and uncle. It
has been argued that had he been on the spot,
he would have certainly tried to intervene and
to save the members of his family, however
he made no such attempt which is unnatural.
No doubt the P.W.1 has said he just kept on
making noise and that he made no attempt
to save them however. In my view, this
isolated statement is not enough to presume
that he was not on the spot. Naturally, his
conduct or overtures were certainly guided by
a number of factors like whether he had
enough time to react and save his family
members or whether he was near enough to
actually rescue them etc. Even if for the sake
of arguments, it is presumed that he was not
an eye-witness and his evidence is discarded
for this reason alone, the evidence of P.W.2
and P.W.3, who are injured persons and who
have given a credible, consistent and
convincing account of the incident are
sufficient enough to prove the prosecution
case. The prompt F.I.R., the G.D., the
medical evidence, the presence of motive are
corroborative evidence which fully prove the
prosecution case. Lack of independent
witness is immaterial.

15.

The
Supreme
Court
in
Ramkrishna vs. State of Haryana, AIR
2004 SC 4678, observed as below:-
9 All. Kallu & Ors. Vs. State of U.P.
647

"The evidence of an injured
witness has to be appreciated keeping in
view that ordinarily a person who has
been assaulted by someone would not
allow him to go scot free and falsely
implicate persons other 14 than those who
actually assaulted him. The evidence of
injured witness stand on different pedestal
as compared to any other witness cited by
the prosecution as eyewitness who claims
to have seen the incident."

16. Enmity between two sides is an
admitted fact. Enmity can act as catalyst to
falsely implicate the accused persons; at the
same time enmity can motivate the accused
side to commit a crime. My view is that in
this case, the accused persons were
motivated to commit the crime because of
them being inimical to complainant's side.

17. The learned trial court considered
the prosecution evidence and evaluated the
same in the right perspective; I agree with
the opinion of the learned trial court with
regard to the prosecution case that,
motivated over inimical relations between
the two sides, the accused persons, in a
well-planned manner attacked two persons
of the complainant side and caused them
injuries from fire arms, a banka (a sharpedged weapon) and a laathi (a blunt
weapon). Now, the only question which
remains to be considered is whether the
accused person assaulted the complainant
side with such intention or knowledge and
under such circumstances that, if they by
that act caused death, they would be guilty
of murder?

18. There cannot be two views that
whether the accused persons had requisite
intention or knowledge and additionally
whether there were circumstances to cause
death of the injured by their act, can only
be gathered from all the facts and
circumstances of that particular incident.
The nature of the weapon used, the manner
in which it was used, the motive, the nature
of the injuries caused, the parts of the body
where the injury was inflicted, may be
some of the factors which give definite
indications towards the presence or lack of
intention or knowledge. When the Court
proceeds upon to determine the presence or
absence of such intention or knowledge, it
has to tread with caution. It should be kept
in mind that none of the factors as
elaborated above, may be sufficient in
itself, to conclusively prove such intention,
however all the factors cumulatively may
throw sufficient light and assist the Court in
arriving at a certain definite conclusion. All
said and done, the burden remains on the
prosecution to establish that there was
indeed an attempt to murder.

19. The learned trial court has
considered the matter in this regard and
gave an opinion that when a person is
attacked most likely he will run away and
shall not remain static at one place, hence
such a person is bound to receive injuries
on various parts of the body. The learned
trial court gave further opinion that
cumulative effect of the injuries was
sufficient to show the intention to kill.

20. I went through the prosecution
evidence in this regard; it has come in
evidence that first of all Shamsuddin and
Jamaluddin fired at Muneer; thereafter rest
of the two accused persons namely Kallu
and Sarfuddin thrashed him with laathi and
banka. Abdul Karim was the next person
who was attacked with laathi and banka;
there is no evidence to show that the
accused persons made any attempt to fire
upon Muneer a second time. There is no
evidence to show that they made any
648 INDIAN LAW REPORTS ALLAHABAD SERIES
attempt to fire upon first informant's uncle
Abdul Karim; there is no evidence to show
that the accused persons tried to shoot the
injured on some vital part of the body, but
somehow it hit his lower limbs. The
accused persons were having a banka
which is a sharp-edged weapon and
dangerous too, but only one blow was
caused to injured Muneer causing injury on
his iliac spine area which was subcutaneous
deep. The other injured Abdul Karim
sustained three injuries subcutaneous deep;
all below knee; not a single incised wound
has been caused to him on any vital part of
his body; this injured sustained two injuries
caused by blunt weapon on his hands;
except one caused by blunt object on right
upper limb, rest all the injuries were simple
in nature. The Court cannot give any
conclusion on the basis of surmises and
conjunctures. It cannot presume that infact
the accused persons wanted to hit the
injured at some vital part of the body but
because of some intervening circumstance,
the bullet hit him below waist. In my view,
even if all the injuries are cumulatively
considered, I do not find it safe to convict
the accused persons for offence under
section- 307/34 I.P.C. In my view, there
was definitely an intention to cause hurt
and grievous hurt by using such weapons
like banka, fire arm and laathi. The
prosecution has proved the offence of
section- 323/34, 324/34 and 325/34 I.P.C.
against
the
accused
persons
beyond
reasonable doubt by producing trustworthy,
ocular and documentary evidence. I do not
find any reason to interfere in that part of
the judgment and sentence.

21. An argument by the side of defence
has been advanced for releasing the accused
persons on probation. I do not find this case
as fit for giving them benefit of probation for
the reasons that the complainant's side was
attacked in a well-planned manner; the
accused persons were hiding in a wheat field
and behind thickets before they attacked the
complainant's father and uncle; this is not a
case where incident took place in a sudden
fight or provocation; both the sides are
having long standing enmity. The aim and
object of releasing the accused on probation
is to reform a criminal and to provide them an
opportunity to mend their ways. In my view,
the Courts of law and justice should not show
indulgence where no feelers are forthcoming
to
support
the
chances
of
genuine
reformation. The planned manner of attack
indicates to opposite direction. Moreover, the
law should not be applied in a manner so as
to embolden culprits in committing the crime
and move freely. The sensitivities of a victim
should also be considered when the Court
decides to give the accused persons benefit of
probation. Undue sympathy to the accused
persons would do more harm to the public
confidence and may not serve the ends of
justice. And it is the duty of the Court to keep
in mind the larger goal of law. The law is
only respected when it becomes visible.
Therefore, the sentencing part of the order
with regard to offence under sections-
323/34, 324/34 and 325/34 I.P.C. is not
interfered at.

22. The judgment and order dated
16.05.2002
passed
by
the
learned
Additional Sessions Judge (Court No.1),
Sitapur in S.T. No. 971 of 1997 is hereby
modified and the accused-appellants are
acquitted of the charges under section-
307/34 I.P.C. Rest of the judgment and
sentence is affirmed.

23. Accordingly, this criminal appeal
is partly allowed.

24. The accused-appellants shall
immediately surrender before the court
9 All. Anil Kumar Ahirwar Vs. State of U.P.
649
concerned and undergo remaining part of
sentence.

25. Let copy of the judgment be
immediately notified to the court concerned
for compliance.

26. Lower court record be returned
immediately.
----------
(2023) 9 ILRA 649
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 4894 of 2005
Connected With
Criminal Appeal No. 5303 of 2005
And
Criminal Appeal No. 5068 of 2005
And
Government Appeal No. 983 of 2006

Anil Kumar Ahirwar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.N. Gupta, Sri Bhole Ram, Sri Mithilesh
Kumar Mishra, Sri Mohd. Farooq, Sri N.I.
Jafri, Sri Sharad Chandra Singh, Sri Sukhvir
Singh

Counsel for the Opposite Party:
G.A., Sri M.C. Chaturvedi, Sri M.D. Mishra

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Sections 302/34, 302/114 &
120 - Arms Act, 1878 - Section 25 -
Challenge
to-Conviction-the
prosecution
witnesses have been consistent on the point
that he had fired on the deceased with his
half-barrel gun and he was apprehended at
the spot. The testimony of P.W.-1 and P.W.5
is specific in that regard-The non-holding of
test
identification
parade
although
is
challenged on behalf of the first accusedappellant but no substance- The records
reveal that an unknown person was in fact
produced before the PHC who was around
25 years of age and had been brought by
the police in their jeep- The prosecution
witnesses of fact who undisputedly were
present on the spot have clearly described
the manner in which the first accused had
fired from his half-barrel gun from a close
distance on account of which the deceased
died- The second accused has no criminal
history-He was admittedly not apprehended
on the spot. No recovery has been made
from him either of the fire-arm from which
he is alleged to have fired on the injured nor
any recovery has been made from him
which may connect him to the offence-The
Investigating Officer in his testimony has
admitted that identity of the second accused
was ascertained itself- This ascertainment
of identity of accused is based upon the
disclosure made by the prime accused -Once
the identity of accused was known to the
police, it was expected that either an
attempt would be made to arrest him or the
police at least tried to interrogate the
alleged accused-There is, however, nothing
on record to show that any attempt was
made either to interrogate the accused or to
verify his role in commissioning of the
offence-The prosecution case on this aspect
is
somewhat
unusual.
As
per
the
prosecution case, the informant P.W.-1
visited the railway station and found the
accused sitting there on a bench- P.W.-1
then informed the police, whereafter, the
accused allegedly was arrested on from the
railway station-The prosecution case in the
form of testimony of P.W.-8 as well as
statements of P.W.-3 and P.W.-4 do not
appear to be natural and convincing-Their
testimony appears to have been introduced
later only with the intent of implicating the
two sons-therefore, trial court has not erred
in coming to the conclusion that prosecution
has not succeeded in establishing the guilt
of the two accused and thereby acquit
them-Hence,
first
accused
appeal
is