# Kareem v. State Of U.P

- **Citation:** (2022) 2 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-20
- **Case number:** Criminal Appeal No. 29 of 2017
- **Bench:** Anjani Kumar Mishra, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kareem-v-state-of-u-p-48140
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 452, 302/34
& 506-challenge to-conviction-evidence of
eye-witnesses PW-1 and PW-2 unreliable
being interested witness -PW-1 stated in
his cross-examination that he heard the
sound of two shots and there was no
blood on the spot-no source of light has
2 All. Kareem Vs. State of U.P.
599
been disclosed which makes prosecution
case
doubtful-testimony
of
DW-1
regarding place of incident is doubtful as
he stated in his examination-in -chief that
he saw dead body in the agriculture field
near tubewell-statement of PW-1 and PW2 u/s 161 were not recorded, thus the
investigation is also faulty and defectivemoreso, two witnesses were not produced
by prosecution who had seen the incident
in the site plan and whose statement were
recorded-prosecution failed to prove the
charge against the appellants/accused
beyond reasonable doubt-judgement of
conviction is set aside-appellants are
acquitted of the charged offences.(Para 1
to 28)

The appeals are allowed. (E-6)

List of Cases cited:

## Text

598 INDIAN LAW REPORTS ALLAHABAD SERIES
act complained of upon the financial or
economic
system
will
weigh
in
the
balance."

12. Thus, it is a settled position of law
that when the parties have reached the
settlement and on that basis petition for
quashing the criminal proceedings is filed,
the guiding factor in such cases would be to
secure: (i) ends of justice, or (ii) to prevent
abuse of the process of any court. While
exercising the power the High Court is to
form an opinion on either of the aforesaid
two objectives. Such a power is not to be
exercised in heinous and serious offences
of mental depravity or offences like
murder, rape, dacoity, etc.

13. The instant case, as the allegations
made in the FIR as well as the settlement
would demonstrate, there is a matrimonial
dispute between the parties; there is no
allegation with regard to demand of dowry;
both
the
parties
have
settled
their
matrimonial disputes amicably before the
Supreme Court Medication Centre; both the
parties mutually divorced under Section 13B of the Hindu Marriage Act, 1955 on
20.2.2021 and other criminal cases which
were pending between the parties are also
disposed of in pursuance of the settlement
dated 16.11.2018.

14. In view of the above facts
including the settlement between the
parties, and keeping in mind the position of
law, I am of the considered opinion that
cognizance order dated 7.11.2017 is liable
to be quashed.

15. In conclusion, charge-sheet No.
43 of 2017 dated 18.10.2017 as well as
cognizance order dated 7.11.2017 passed
by the Special Chief Judicial Magistrate,
Meerut, in Criminal Case No. 5204 of 2017
(arising out of Case Crime no. 22 of 2017
under sections 498-A, 323, 506 of IPC
registered at Police Station - Mahila Thana,
District Meerut), pending for trial in the
court of Special Chief Judicial Magistrate,
Meerut is, hereby, quashed. The present
application stands allowed accordingly.

16. A copy of this order be
transmitted
to
the
trial
court
for
information.
----------
(2022)02ILR A598
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 29 of 2017
with
Criminal Appeal No. 30 of 2017
with
Criminal Appeal No. 31 of 2017

Kareem ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.P. Srivastava, Senior Counsel, Sri
Pankaj Kumar Tyagi, Ms. Ankita Verma, Sri
A. Kumar Srivastava

Counsel for the Opposite Party:
A.G.A., Sri Pankaj Bharti

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 452, 302/34
& 506-challenge to-conviction-evidence of
eye-witnesses PW-1 and PW-2 unreliable
being interested witness -PW-1 stated in
his cross-examination that he heard the
sound of two shots and there was no
blood on the spot-no source of light has
2 All. Kareem Vs. State of U.P.
599
been disclosed which makes prosecution
case
doubtful-testimony
of
DW-1
regarding place of incident is doubtful as
he stated in his examination-in -chief that
he saw dead body in the agriculture field
near tubewell-statement of PW-1 and PW2 u/s 161 were not recorded, thus the
investigation is also faulty and defectivemoreso, two witnesses were not produced
by prosecution who had seen the incident
in the site plan and whose statement were
recorded-prosecution failed to prove the
charge against the appellants/accused
beyond reasonable doubt-judgement of
conviction is set aside-appellants are
acquitted of the charged offences.(Para 1
to 28)

The appeals are allowed. (E-6)

List of Cases cited:

1. Mahabir Singh Vs St. of Har. (2001) SCC
(Cri.) 1262

2. Dayal Singh & ors. Vs St. of Uttranchal
(2012) AIR SC 3046

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. These criminal appeals have been
preferred against the judgment and order of
conviction and sentence dated 17.11.2016,
passed by the Addl. Sessions Judge, Court
No. 2, Muzaffar Nagar in S.T. No.483 of
2013 (State vs. Kareem and others), under
Sections 452, 302/34, 506 IPC, P.S.
Mansoorpur,
District-
Muzaffar
Nagar,
convicting accused (Kareem, Shahjad, Wajid)
for offences under Sections 452, 302/34, 506
IPC and sentencing each of them with
imprisonment for 3 years and fine of
Rs.5000/- under Section 452 IPC, in default
of fine, 3 months further imprisonment, life
imprisonment to each of them along with fine
of Rs.10,000 under Section 302/34 IPC, in
default
of
fine,
6
months
further
imprisonment and 2 years imprisonment
along with fine of Rs.5000/- to each of them
under Section 506 IPC, in default of fine, 3
months
further
imprisonment.
Accused
Kareem has been acquitted from the charges
under Section 25/27 of the Arms Act, giving
benefit of doubt.

2. Being aggrieved therefrom, accused
Shahjad preferred Criminal Appeal No. 31 of
2017, accused Kareem preferred Criminal
Appeal No.29 of 2017 accused Wajid
preferred Criminal Appeal No.30 of 2017 for
setting aside their conviction and passing an
order of acquittal.

3. Since common issues are involved in
all the three appeals, hence all the three
appeals are being disposed of by a common
order. The fact stated in Criminal Appeal
No.29 of 2017 shall be treated as a leading
appeal.

4. In brief, prosecution case is that on
29.7.2012 at 5 AM in the morning when
first informant Deepak along with his
mother Kauhal Devi were present in house
of his brother Rahul, neighbour Kareem,
Shahjad, Fayyaz and Wajid entered the
house, Kareem and Shahjad were armed
with country-made pistols. Fayyaz and
Wajid told that give him a lesson for
bothering Anjum, daughter of Kareem and
kill the Rahul. On the said exhortation,
Kareem and Shahjad fired shots with
intention to murder Rahul, Rahul fell down
on spot due to injury caused to him. On
account of noise raised by him and his
mother and on seeing the villagers arriving,
accused ran away, giving warning that they
will kill them also. They carried injured
Rahul to District Hospital where doctor
declared him dead.

5. On the basis of written report (Ext.
Ka-1), Case Crime No. 365/2012, under
600 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 452, 302, 506 IPC was lodged
against accused. Chik FIR (Ext. Ka-9) was
registered and its entry was recorded in
G.D. (Ext. Ka-10). The investigation of the
case was handed over to Ramesh Chandra
Yadav, S.O. Mansoorpur, Sub-Inspector
Pritam Singh Rawal prepared inquest
memo (Ext. ka-2) of deceased Rahul and
relevant documents, like, letter to R.I. (Ext.
Ka-3), letter to C.M.O. (Ext. Ka-4), photo
lash (Ext. Ka-5), dead body challan (Ext.
Ka-6) and sent the dead body for
postmortem.

6. Investigating Officer prepared spot
map (Ext. Ka-18) and recorded statement
of witnesses, recovered pellets from the
place of incident and prepared its memo
(Ext. Ka-16) and recovered cartridges and
prepared its memo (Ext. ka-17). During
investigation,
weapon
of
the
crime,
country-made pistol and two live cartridges
were recovered from the possession of
Kareem vide recovery memo (Ext. Ka-7).
FIR was lodged against Kareem under
Section 25/27 of the Arms Act in Case
Crime No.469/2012. Charge-sheet under
Sections 452, 302/34, 506 IPC was
submitted against accused Kareem, Shahjad
and Wajid and charge-sheet under Section
25 of the Arms Act was submitted against
Kareem by Investigating officer which are
Ext. Ka-19 & Ext. Ka-14 respectively.
Charges were framed against accused
Kareem, Shahjad and Wajid under Sections
452, 302/34, 506 IPC and under Section 25
of the Arms Act against the accused
Kareem which they denied and claimed
trial.

7. In joint trial of the two cases,
prosecution produced as many as 8
witnesses
viz.
P.W.-1
Deepak,
1st
informant and brother of deceased (eyewitness), P.W. 2 Smt. Kaushal, mother of
deceased
(eye-witness),
P.W.3,
SubInspector
Pritam
Singh
Rawal
who
prepared inquest, etc, P.W.4 Dr. Rajesh
Kumar Dawrey who conducted postmortem
of the dead body of deceased, P.W.5 H.C.P.
Brijesh
Kumar
who
lodged
First
Information Report of the incident under
Sections 452, 302/34, 506 IPC, P.W.6
Constable Clerk Brahmajeet Singh who
lodged the First Information Report under
Section 25/27 of the Arms Act, P.W.7 SubInspector Rajpal Singh who conducted
investigation of case under the Arms Act,
P.W.8 Sub-Inspector Ramesh Chandra
Yadav who concluded investigation of case
under Section 452, 302/34, 506 IPC.
Defence has produced one witness Naushad
as D.W.1.

8. P.W.1 Deepak in his examinationin-chief has stated that he knows accused
kareem, Shahjad and Wajid who belong to
his village. He knows accused Fayyaz who
also belongs to his village. Accused are his
neighbours. The name of his deceased
brother is Rahul Sharma. Incident is of
27.9.2012, on that day, he, his brother
Rahul and mother Kaushal were present in
the house. In the morning at 5 AM,
Kareem, Wajid, Shahjad and Fayyaj came
to his house. Kareem and Shahjad were
armed with country-made pistol. All the
four entered into his house, Wajid and
Fayyaz said that give him lesson due to
misbehaviour done by him with Anjum,
daughter of Kareem. Accordingly, Kareem
and Shahjad on the exhortation of Fayyaz
and Wajid fired shot to his brother Rahul.
He and his mother saw the incident. Rahul
was sleeping when shot was fired. Rahul
fell down from Takhat as soon as he
received shot. Nobody came in spite of
making noise. Accused ran away along
with country-made pistol after making fire
shot. He carried his brother in the car of his
2 All. Kareem Vs. State of U.P.
601
village Pradhan Dushyant to the police
station Mansoorpur and told the incident to
Station Officer. Station Officer has told
him to take injured Rahul to Government
Hospital, Muzzafar Nagar for treatment
where doctor declared Rahul dead. The
report of the incident was written by
Jasveer in the hospital and the same was
lodged
against
accused.
In
crossexamination, P.W.-1 stated that his mother,
brother and sister were sleeping in the
house and he was sleeping in the gher
situated at a distance of 50-60 mtrs from
the house. There are 4-5 houses in between
his house and gher . His animals are being
tied in the gher that is why he sleeps in the
gher. He further stated that he heard two
shots. His brother was in the house. When
he came to his brother, then he found no
blood near the body.

9. P.W.-2 Smt. Kaushal (mother of
deceased)
in
her
examination-in-chief
stated that accused are her neighbours and
Rahul was her son. Incident was of
27.9.2012 at 5 AM. She wake up at 4 AM
and for milking her cow and buffalow, she
went to gher where her elder son sleeps.
She milked her cow and buffalow in the
gher. She and her son Deepak came to
house at about 5 AM. As soon as she was
going to sleep the accused Kareem, Fayyaz,
Wajid and Shahjad come inside the room
through gallery. Rahul was sleeping on
takht and she was on a charpai parallel to
him. Fayyaz and Wajid said that give him a
lesson as he misbehaved Anjum and end
the life of Rahul. Accordingly, Kareem and
Shahjad fired at Rahul. First shot was fired
by Kareem and the second shot by Shahjad.
On being shot, Rahul fell down from takht.
Accused threatened if she made a noise,
they will kill her also. First of all, Deepak
came there. Deepak covered Rahul's
injured stomach from his lungi. Deepak
called village Pradhan and took Rahul for
treatment. In cross-examination, P.W.2
stated that first of all Deepak came there.
Deepak covered the Rahul's injured place
from his lungi. He wear clothes inside the
lungi. She became unconscious after the
incident. Police has not taken into custody
mattress, etc. Police has not taken into
custody any item from her house and room
in her presence. The shots hit the left side
of stomach and the thigh. Intestine
protruded from the fire-arm injury in the
stomach.

10. P.W.3 Inspector Pritam Singh
Rawal in his examination-in-chief has
stated that on 27.9.2012, he was posted as
Sub-Inspector at police station Mansoorpur,
he prepared the Panchayatnama of the body
of deceased Rahul and other documents
relating to Panchayatnama were also
prepared by him and dead body was handed
over for postmortem to Constable Kapil
Bhati and Constable Dinesh Kumar.

11. P.W.4 Dr. Rajesh Kumar Dawrey
in his examination-in-chief has stated that
he was posted on 17.9.2013 at the District
Hospital, Muzaffar Nagar and he conducted
the postmortem at 4 PM. Following injuries
were found on the body of deceased:-

1. A gun shot wound of entry
size 3cm x 2.5cm x abdomen cavity deep,
present over left side of abdomen, at 2'O
clock position and 15cms away from
amblicus, abraided collar and B/T
(blackening
and
tattooing),
present
around the wound in the area of 10cm x
8cm, margins inverted and lacerated.
Intestine was protruding out from
wound.

2. Multiple pellet wounds in the
area of 13cm x 9cm x muscle and sic....
602 INDIAN LAW REPORTS ALLAHABAD SERIES
deep, present over anterior aspect of left
thigh,
16cm
about
the
knee.
On
exploration 6 tiny pellets recovered from
muscles and skin.

3. A contusion 1.5cm x 1cm
present over anterior aspect of right
thigh in the middle part.

12. P.W.5 H.C.P. Brijesh Kumar has
stated in his examination-in-chief that he
was posted on 27.9.2012 at Police Station
Mansoorpur, District Muzaffar Nagar as
Constable / Clerk. On the basis of the
written report of the informant Deepak,
Chick Report No. 201 of 2012 Case Crime
No.365/2012, under Sections 452, 302, 506
IPC was prepared. He proved chick report
(Ext. Ka-9) and G.D. (Ext. Ka-10).

13.

P.W.6
Constable
Clerk
Brahmajeet Singh has stated in his
examination-in-chief that he was posted on
28.9.2012 at police station Chappar,
District Muzaffar nagar as Constable /
Clerk. He taken the memo of recovery of
country-made pistol 12 bore from Station
Officer Ramesh Chandra Yadav at 22.00.
On the basis of memo of recovery, Case
Crime No.369/2012 (State vs. Kareem),
under Section 25/27 of the Arms Act was
registered whose entry was made in G.D.
No.56 at 22.00. He identified the Chick
(Ext. Ka-11) and G.D. (Ext. Ka-12) which
are in his handwriting.

14. P.W.-7 Sub-Inspector Rajpal
Singh who conducted investigation of
recovery of one country-made pistol and 2
cartridges), has stated in his examinationin-chief that on 29.9.2012, he was posted as
Sub-Inspector at police station Mansoorpur,
District Muzaffar Nagar. The investigation
of Case Crime No.369/2012, under Section
25/27 of the Arms Act was handed over to
him and he examined the witnesses. The
site plan (Ext. ka-13) was prepared by him
on the pointing out of the informant. He
submitted charge-sheet (Ext. Ka- 14), under
Section 25/27 of the Arms Act and proved
it.

15. P.W.8 Ramesh Chandra Yadav,
Sub-Inspector, the Investigation Officer of
murder case, has stated in his examinationin-chief that since 27.9.2012 he was posted
as Station Officer at Police Station
Mansoorpur
District
Muzaffar
Nagar,
investigated Case Crime No.365/2012,
under Sections 452/302/506 IPC. He
recorded statement of Constable Brijesh
Kumar
who
wrote
First
Information
Report. The statement of first informant
Deepak was also recorded at the police
station. He went to District Hospital with
official jeep along with Sub-Inspector
Pritam Singh, Constable Manoj Kumar,
Constable Kamlesh Kumar and Constable
Dinesh Kumar. Sub-Inspector Pritam Singh
prepared inquest of deceased Rahul Sharma
and other documents relating to inquest.
Body
was
sent
to
postmortem.
Accordingly, witnesses of the inquest were
examined. Pellets were recovered from the
place of incident and memo was prepared
vide Ext. Ka-16. On 27.9.2012, 3 cartridges
were recovered from the place of incident
and memo was prepared vide Ext. Ka-17.
On the pointing out of first informant,
inspection of the spot was made and site
plan was prepared vide Ext. Ka-18 and the
same was also identified by him. The
witnesses of the recovery memo were
examined as well as other witnesses were
examined. He arrested accused Kareem on
28.9.2012 at 8 PM along with countrymade pistol of 12 bore and 2 cartridges of
12 bore. Kareem stated that with the same
country-made pistol, he murdered Rahul
Sharma on 27.9.2012. The recovery memo
2 All. Kareem Vs. State of U.P.
603
of the country-made pistol and the
cartridges was prepared by Sub-Inspector
Pritam Singh vide Ext. Ka-7. Case was
accordingly registered against Kareem and
he was examined also, Sub-Inspector
Pritam Singh who prepared inquest was
examined, the Constable who was in the
postmortem team was also examined. On
9.10.2012, accused Wajid was arrested and
examined on 18.10.2012. After completion
of investigation, charge-sheet (Ext. Ka-19)
was submitted against Kareem, Shahjad
and Wajid.

16. The Court after prosecution
evidence, examined the accused under
Section 313 Cr.P.C. and accused submitted
that they have been falsely implicated in
the present case due to enmity and
partybandi. The accused - appellants have
produced Naushad as D.W.1.

17.

D.W.
1 Naushad
in his
examination-in-chief has stated that he
knows Rahul Sharma of his village and also
knows Kareem, Shahjad, Fayyaz, Wajid of
his village. On 27.9.2012 in the morning at
4.30 AM, he went to mosque from his
house. In the mosque, one person came and
told him that Rahul Sharma was shot near
the tubewell, situated in agriculture field.
He was operating his tube well at that time.
They went to the gher of Rahul. In the gher,
Deepak and his mother were present. They
called village Pradhan and thereafter all of
them went to agriculture field where
Rahul's body was lying near tubewell. They
carried Rahul on tractor trolley to village
and then in the car of village Pradhan to
hospital. The house and gher of Rahul are
separate. No incident has taken place at the
house of Rahul. In cross-examination
D.W.1 has stated that electricity supply in
village was from at 4 PM in the evening till
4 AM in the morning. He saw the dead
body of Rahul in the agriculture field.

18. Heard Shri V.P. Srivastava, the
learned Senior Counsel assisted by Shri
Pankaj Kumar Tyagi and Ms Ankita
Verma, for the appellants, Shri Pankaj
Bharti, learned counsel for the complainant
and the learned A.G.A. for the State.

19. The submission of the learned
counsel for the appellants are:

(i) P.W.1 & P.W.2 alleged eyewitnesses of the incident are interested and
partisan witnesses, were not present at the
place of incident as such their evidence is
unreliable.

(ii) No source of light has been
disclosed. The incident is of 5 AM on
27.9.2012 and there was no electricity in
the village at the relevant time. As such,
prosecution case is doubtful.

(iii) Place of occurrence is also
doubtful as no blood was recovered from
the alleged place of incident either on takht
or on ground. The testimony of D.W.1 as to
the place of incident is different from that
of the prosecution witnesses.

(iv)
Latches
in
investigation
create doubt about the prosecution story.

In support of the contentions, the
learned counsel for the appellants has
placed reliance upon the judgment of the
Apex court in Mahabir Singh vs. State of
Haryana, reported in 2001 SCC (Cri)
1262.

20. On the other hand, learned
counsel for the complainant Mr. Pankaj
Bharti and the learned AGA for the State
argued that it is a case of direct evidence
and strong motive. As such, latches in the
investigation
will
not
demolish
the
604 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution case as held by the Apex Court
in Dayal Singh and Others vs. State of
Uttranchal, AIR 2012 SC 3046.

21. So far as the argument of the
learned counsel for the appellants that
evidence of P.W.'s- 1 & 2, eye-witnesses of
the incident are unreliable as they were not
present on the place of incident is
concerned, the evidence of P.W.'s- 1 & 2
will be relevant. P.W.1 Deepak in his
examination-in-chief states that his mother,
brother and sister were sleeping in room.
He was sleeping at gher which is at the
distance of 50-60 mtr. from his house,
although in the First Information Report,
first informant / P.W.1, also states that he
and his mother were in the house. In his
cross-examination, P.W.1 states that he
heard the sound of two shots. His brother
was in the house, when he came to his
brother, there was no blood on the spot.
This
statement
of
P.W.1
clearly
demonstrates that he was not present at the
place of incident. As such, evidence of
P.W.1 is not reliable and prosecution case
is false and doubtful. So far as P.W.2,
another eye-witness is concerned, she has
stated in her examination-in-chief that her
elder son Deepak had slept at gher where
their animals are tied. She woke up at 4
AM in the morning on the date of incident
and went at gher for milking cows and
buffalows, after milking she and her son
Deepak came to house at about 5 AM. She
also stated in her cross-examination when
she reached the gher for milking their
animals, there was no electricity. P.W.1 &
P.W.2 have also stated that their statements
were not taken by police. It is also material
to state that P.W.2 has made improvement
also in her statement in order to prove that
she and her son Deepak were present at the
place of incident but the analysis of the
statement of P.W.1 & P.W.2 as well as
other evidence (FIR, site plan, etc.) on
record fully reveal that P.W.1 & P.W.2
were not present at the place of incident
and their evidence does not inspire
confidence. It is difficult to accept that they
are eye-witnesses.

22. So far as second argument of the
learned counsel for the appellant that there
was no source of light at the place of
incident is concerned, P.W.2 in her crossexamination stated that there was no
electricity when she reached the gher for
milking her cows and buffalows and came
back to house at 5 AM. As such, at the time
of incident, there was no electricity in the
house at 5 AM on 27.9.2012. D.W.1
Naushad
also
states
in
his
crossexamination that electricity supply in his
village was from 4 PM in evening till 4 AM
in morning. So it is well established that
there was no electricity in the house at the
time of incident. It was, therefore, not
possible for P.W.2 to identify the accused
in the absence of electricity in the early
morning. No alternative source of light has
been set up by the prosecution. As such,
prosecution case as set up against the
accused appellants is doubtful.

23. So far as the third argument of
learned counsel for the appellants that place
of incident is doubtful is concerned, it is
material to state that no blood was found
either on takhat or on the ground or at any
other place which make the place of
occurrence doubtful. In the site plan also,
there is no mention of blood, etc. any any
place. It is also material to state that 36
pellets were found below the takhat while
accused was sleeping on the takhat. D.W.1
Naushad in his statement-in-chief as well
as in cross-examination stated that body of
deceased Rahul was found in agriculture
field near tubewell and no incident has
2 All. Kareem Vs. State of U.P.
605
taken place at the residence of Rahul. The
above evidence belies the place of incident
as also the prosecution case.

24. With regard to the fourth
argument of learned counsel for the
appellants that the investigation is faulty
and defective, following facts will be
relevant:

(a) Statement under Section 161
Cr.P.C. of P.W.1 & P.W.2 were not
recorded at all.

(b) Witnesses Kalwa who has
seen the incident as shown in the site plan
and Mange whose house is also mentioned
in site plan were examined under Section
161 Cr.P.C. but they were not produced by
prosecution.

25. The counsel for the appellant
placed reliance upon the judgment of the
Apex Court in the case of Mahabir Singh
vs. State of Haryana reported in 2001
SCC (Cri) 1262 on the point of nonexamination of P.W.1 & P.W.2 under
Section 161 Cr.P.C. Paragraph nos. 13 &
14 of the judgment are relevant and read as
follows:

"13. If a Public Prosecutor
failed to get the contradiction explained
as permitted by the last limb of the
proviso to Section 162(1) of the Code, is
it permissible for the court to invoke the
powers under Section 172 of the Code
for explaining such contradiction? For
that purpose we may examine the scope
of Section 172 of the Code. That section
deals with the diary of proceedings in
investigation. Sub- section (1) enjoins on
the Investigating Officer to enter in a
diary the time at which he began and the
place or places visited by him during the
course of investigation. Such entries
should be made on a day-to-day basis.
Sub- sections (2) and (3) of Section 172
read thus:

172 (2) Any Criminal Court
may send for the police diaries of a case
under inquiry or trial in such Court, and
may use such diaries, not as evidence in
the case, but to aid it in such inquiry or
trial.

(3) Neither the accused nor his
agents shall be entitled to call for such
diaries, nor shall he or they be entitled to
see them merely because they are
referred to by the Court; but, if they are
used by the police officer who made
them to refresh his memory, or if the
Court uses them for the purpose of
contradicting such police officer, the
provisions of Section 161 or Section 145,
as the case may be, of the Indian
Evidence Act, 1872 (1 of 1872), shall
apply.

14. A reading of the said subsections makes the position clear that the
discretion given to the court to use such
diaries is only for aiding the court to
decide on a point. It is made abundantly
clear in sub-section (2) itself that the
court is forbidden from using the entries
of such diaries as evidence. What cannot
be used as evidence against the accused
cannot be used in any other manner
against him. If the court uses the entries
in a Case Diary for contradicting a police
officer it should be done only in the
manner provided in Section 145 of the
Evidence Act i.e. by giving the author of
the statement an opportunity to explain
the contradiction, after his attention is
called to that part of the statement which
is
intended
to
be
so
used
for
606 INDIAN LAW REPORTS ALLAHABAD SERIES
contradiction. In other words, the power
conferred on the court for perusal of the
diary under Section 172 of the Code is
not
intended
for
explaining
a
contradiction which the defence has
winched to the fore through the channel
permitted
by
law.
The
interdict
contained in Section 162 of the Code,
debars the court from using the power
under Section 172 of the Code for the
purpose of explaining the contradiction."

26. It is also material that prosecution
has not produced witnesses Kalwa and
Mange whose statement under Section 161
Cr.P.C. have been recorded. In the site
plan, it is mentioned that Kalwa had caught
accused Kareem at place "G" but he fled
away giving threat. The above discrepancy
on the part of investigation also makes the
prosecution case doubtful.

27. In view of the facts and
circumstances of the case and the evidence
available on record, we find that witnesses
produced by prosecution do not inspire
confidence that they are eye witnesses of
the incident. There was no source of light at
the place of incident and place of
occurrence is also doubtful. There are
lapses on the part of investigation.
Prosecution has failed to prove the charge
against the appellants - accused beyond
reasonable doubt. Accordingly, judgement
and order dated 17.11.2016 passed by the
learned trial court is not sustainable and is
liable to be set aside.

28. The appeals are allowed. The
judgment of conviction and order of
sentence dated 17.11.2016 is set aside.
Appellants are acquitted of the charged
offences. Appellants- Kareem and Shahjad
in Criminal Appeal Nos.29 of 2017 and 31
of 2017 respectively are in jail. They shall
forthwith be released from the jail, if not
wanted in any other case. Appellant Wajid
in Criminal Appeal No.30 of 2017 is on
bail. His bail bond and sureties stand
discharged.

Let a copy of the judgment along
with the original record be sent to the court
below for compliance
----------
(2022)02ILR A606
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2022

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 863 of 2021

Rahul @ Abhinav Kumar & Ors.
 ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
O.P. Tiwari

Counsel for the Opposite Parties:
G.A.,Manoj Kumar Gupta

A. Criminal Law - Scheduled Caste &
Schedule Tribe (Prevention of Atrocities)
Act, 1989 - Section 14(A)(1) - Section
3(1) (da) (dha) - Indian Penal Code, 1860
- Sections 147, 323, 324, 504 & 506summoning order-appellants had been
summoned through a printed order and
did not follow the dictum of law as
propounded by the Apex Court-at the
stage of summoning only prima facie
case is to be seen-it cannot be said that
no offence is made out-Disputed question
of fact cannot be adjudicated at this
stage-However, appellants got a right of
discharge application before the Trial
Court-quashing
of
charge-sheet
and
entire proceedings is refused.(Para 1 to
14)