# Mahmood Ali v. State of U.P

- **Citation:** (2024) 8 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Criminal Appeal No. 6909 of 2009
- **Bench:** Siddharth, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahmood-ali-v-state-of-u-p-52304
- **Pages:** 11

## Headnote

Law
-
Appeal
against
conviction - Acquittal - Circumstantial
Evidence - Reliability of Witnesses -
Indian Penal Code, 1860 - Section 302 -
Murder - Arms Act, 1959 - Section 25/4 -
Possession of firearm - Indian Evidence
Act, 1872 - Section 27 - Proof of facts -
Reliance
on
Hostile
Witnesses
and
Contradictory
Statements
Leads
to
Acquittal - The prosecution's failure to
prove its case beyond reasonable doubt,
coupled
with
the
unreliability
of
contradictory witness statements and the
ability of the defense to rely on hostile
witnesses, leads to acquittal. (Paras 33,
37, 38, 40)

Accused was convicted of murder - possession
of a firearm - prosecution's case relied on
214 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstantial evidence - testimony of PW-1 did
not support prosecution's case during crossexamination - Contradictions were found in the
statements of PW-4 and PW-7 - Recovery of
blood stains and the knife used in the crime
were not proved - site plan was also not proved
- Forensic Science Laboratory report was
inconclusive - Failure to examine crucial
witnesses. (Para 33 to 41)

Held: -Impugned judgment and order of trial
court set aside. Accused appellant acquitted of
all charges under Section 302 IPC and Section
25/4 Arms Act. Prosecution's case was not
established beyond a reasonable doubt, and the
accused was entitled to the benefit of doubt.
(Para - 41)

Appeal Allowed. (E-7)

List of Cases cited:

## Text

8 All. Mahmood Ali Vs. State of U.P.
213
therefore, Ex.Ka.2 is based on hearsay
wherein, Pappu Soni along with Vimal
Soni were introduced for the first time
and in view of the fact that there is no
date
on
Ex.Ka.2,
it
was
given
intentionally at later stage. Therefore,
there is nothing to believe the version
given in second complaint Ex.Ka.2 as
part of it is already disbelieved by the
police during the investigation as no
charge-sheet was presented against
Vimal Soni. In view of above by giving
benefit of doubt, we also acquit accused
Pappu Soni.

28. In view of the finding recorded
above, we dismissed the appeal filed by
accused Himanshu Soni, Ambika Soni
and Pammu Soni by upholding their
conviction in terms of the impugned
judgment
of
conviction
dated
27.09.2018 and order of sentence dated
27.09.2018.
However,
we
acquit
accused Nandu Singh and Pappu Soni
by giving benefit of doubt.

29. As per the trial court judgment,
Nandu Singh was never granted bail
and he is in custody since 2014. He will
be released forthwith if he is not
required in any other case. Accused
Pappu Soni was on bail and was taken
in custody at the time of passing of the
impugned judgment. He is also directed
to be released forthwith, if not required
in any other case.

30.

With
the
aforesaid
modification, Criminal Appeal No.5954
of 2018 & Criminal Appeal No.5924 of
2018 are dismissed and Criminal
Appeal No.6012 of 2018 & Criminal
Appeal No.6457 of 2018 are allowed.

31. Trial court records be
transmitted back forthwith.
----------
(2024) 8 ILRA 213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Appeal No. 6909 of 2009

Mahmood Ali ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Mohd. Afzal, Sri Manoj Singh, Sri
Mukhtar Alam, Sri Krishna Kumar (Amicus
Curiae)

Counsel for the Respondents:
Govt. Advocate

(A)
Criminal
Law
-
Appeal
against
conviction - Acquittal - Circumstantial
Evidence - Reliability of Witnesses -
Indian Penal Code, 1860 - Section 302 -
Murder - Arms Act, 1959 - Section 25/4 -
Possession of firearm - Indian Evidence
Act, 1872 - Section 27 - Proof of facts -
Reliance
on
Hostile
Witnesses
and
Contradictory
Statements
Leads
to
Acquittal - The prosecution's failure to
prove its case beyond reasonable doubt,
coupled
with
the
unreliability
of
contradictory witness statements and the
ability of the defense to rely on hostile
witnesses, leads to acquittal. (Paras 33,
37, 38, 40)

Accused was convicted of murder - possession
of a firearm - prosecution's case relied on
214 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstantial evidence - testimony of PW-1 did
not support prosecution's case during crossexamination - Contradictions were found in the
statements of PW-4 and PW-7 - Recovery of
blood stains and the knife used in the crime
were not proved - site plan was also not proved
- Forensic Science Laboratory report was
inconclusive - Failure to examine crucial
witnesses. (Para 33 to 41)

Held: -Impugned judgment and order of trial
court set aside. Accused appellant acquitted of
all charges under Section 302 IPC and Section
25/4 Arms Act. Prosecution's case was not
established beyond a reasonable doubt, and the
accused was entitled to the benefit of doubt.
(Para - 41)

Appeal Allowed. (E-7)

List of Cases cited:

1. Javed Masood & anr. Vs St. of Raj., (2010) 3
SCC 538

2. Shahaja @ Shahajan Ismail Mohd. Shaikh Vs
St. of Maha., (2022) 6 SCC 553

3. Harjinder Singh @ Bhola Vs St. of Punj.
(2004) 11 SCC 253

4. Javed Masood & anr. Vs St. of Raj., (2010) 3
SCC 538

5. St. through the Inspector of Police Vs Laly @
Manikandan & anr etc., 2022 LiveLaw (SC) 851:
AIR 2022 SC 5034

6. Mukhtiar Ahmed Ansari Vs St. (NCTof Delhi)
(2005) 5 SCC 258

7. Raja Ram Vs St. of Raj., (2005) 5 SCC 272

8. Satbir Vs Surat Singh & anr. [1997 (4) SCC
192

(Delivered by Hon'ble Brij Raj Singh, J.)

1. The present appeal has been filed
against the common judgement and order
dated 06.11.2009 passed by the learned
Additional Sessions Judge, Court No.6,
Ghaziabad in Sessions Trial No.201 of
2008, arising out of Case Crime No.444 of
2007, thereby convicting and sentencing
the appellant under Section 302 IPC for life
imprisonment with fine of Rs.2,000/- and
in default of payment of fine, to further
undergo one year additional imprisonment
and further in Sessions Trial No.189 of
2008, arising out of Case Crime No.478 of
2007, under Section 25/4 Arms Act,
thereby convicting and sentencing the
appellant for one year imprisonment with
fine of Rs.500/- and in default of payment
of fine, to further undergo one year
additional imprisonment. However, both
the sentences shall run concurrently.

2. As per the prosecution case, the
complainant, Raj Mohammad lodged a
report mentioning therein that his maternal
uncle, Mohd. Raees Ahmad S/o Rafeeq
Ahmad used to live in his house and he was
going to attend the Namaz on 26.07.2007
at 5.30 AM. The accused-appellant,
Mahmood Ali assaulted his maternal
uncle by knife in front of Power-loom
factory. His maternal uncle made alarm
and fell down. The accused-appellant ran
away from the place by hurling knife. It
is alleged that accused-appellant had
brought a lady, namely, Parveen who had
gone to some other place after living with
him for 5-6 months. The accusedappellant had developed enmity with
Mohd. Raees Ahmad believing that
Mohd. Raees Ahmad helped Parveen,
who left the house of the accusedappellant. The complainant, Mohd. Alam
S/o Bundhu and other neighbours had
seen the accused-appellant assaulting his
maternal uncle. The complainant had
taken
his
maternal
uncle
to
the
Government Hospital, but he died before
reaching the hospital.
8 All. Mahmood Ali Vs. State of U.P.
215

3. On the basis of written Tehrir FIR
was lodged in Case Crime No.444 of 2007,
under Section 302 IPC and after recovery
of the knife, second FIR was lodged in
Case Crime No.478 of 2007 under Section
25/4 Arms Act. Inquest was conducted and
thereafter the dead body was sent for postmortem. The cases were investigated by the
Investigating Officer, who after completion
of enquiry, filed two separate charge
sheets; one under Sections 302 IPC and the
other under Section 25/4 Arms Act against
the accused-appellant. The cases were
committed to the court of sessions. Both
the cases were tried together. Charges were
framed against the accused-appellant under
Section 302 IPC and Section 25/4 Arms
Act. The accused-appellant denied the
charges and pleaded for trial.

4. The prosecution to prove its case,
produced the following eight witnesses:-

P.W.-1 Raj Mohammad

P.W.-2 S.I. Sayeed Ahmad

P.W.-3 Nayeem

P.W.-4 Inayat Ali

P.W.-5 S.I. Reshampal Singh

P.W.-6 Rajmani Rakesh

P.W.-7 Sanjay Tyagi

P.W.-8 Dr. Ramendra Singh

5. 19 exhibits were also produced by
the prosecution to prove its case.

6.

The
accused-appellant
was
confronted under Section 313 Cr.P.C. and
he deposed before the court that he was
falsely implicated In the case. He also
produced D.W.-1, Smt. Parveen to support
his case.

7. The trial court after examining the
witnesses and adducing the evidence on
record, convicted the accused-appellant as
mentioned above. Hence, the present
appeal has been filed.

8. P.W.-1, Raj Mohammad was
examined before the trial court and he
deposed the same facts in his examinationin-chief as has been narrated in the FIR. In
the cross-examination, he deposed that the
FIR was not written by him and he only
made signature. He had not seen the
incident because he was not present at the
place of occurrence. He lodged the report at
the behest of the neighbours. He reached to
the place of occurrence after half an hour of
the incident and he took his maternal uncle
to the hospital.

9. P.W.-2, Sayeed Ahmad was
examined before the court and he deposed
that he was posted as Sub-Inspector on
26.07.2007 in the police station. He took
the custody of the dead body of Mohd.
Raees Ahmad and conducted the inquest
report at 8.45 AM. He further deposed that
Chik FIR was signed by Constable Sonveer
Singh, who was posted along with him and
he had written the report.

10. P.W.-3, Nayeem S/o Nizamuddin
was examined by the trial court and he
deposed that blood stained, concrete was
collected by the Investigating Officer
before him and the collected items were
kept in two sealed boxes. In crossexamination,
he
deposed
that
on
26.07.2007, he was working at his place
and he did not sign on the inquest and he
did not give any statement.

11. P.W.-4, Inayat Ali S/o Bunaid
was examined before the trial court and
deposed that he had come to Hapur and
stayed at Bashir Ki Sarai. On the next day,
he woke up in the morning and went for
Namaz and as soon as he reached to the
216 INDIAN LAW REPORTS ALLAHABAD SERIES
house of Mohd. Raees Ahmad, he saw that
accused-appellant was stabbing Mohd.
Raees Ahmad. He wanted to catch him, but
he ran away from the place of occurrence.
He further deposed that Karamat Ali was
also present along with him. He further
deposed that he and Karamat Ali found
accused-appellant
on
03.08.2007
near
Chungi at Meerut. Two police men were
standing there and he told them that
accused-appellant committed murder of his
brother and he was identified by them
before
the
police.
Accused-appellant
confessed before the police that he had
killed Mohd. Raees Ahmad with knife. He
also confessed that knife was thrown by
him at Power-loom factory. The accusedappellant was taken to the place, where the
knife was thrown. He took out the knife
and confessed that the same knife was used
for assaulting the deceased. The recovery
memo was prepared and the knife was kept
in a sealed cover.

12. In cross-examination, P.W.-4
Inayat Ali deposed that he and Karamat Ali
have got their houses side by side. He
deposed that he had come to Hapur in the
evening and went to the house of his
brother Raees Bhai. Mohd. Raees Ahmad
used to live alone in a rented house. He
further deposed that Bhashir met him. He
woke up at 5.30 AM and without taking
bath, he had gone to attend the Namaz.
Karamat Ali was also sleeping beside him.
The Mosque is situated half kilometre from
place of Sarai. After Namaz, he came back
and thereafter went to the house of his
brother Mohd. Raees Ahmad. The house of
his brother was situated 1 Km. away from
the Mosque. He took 5-6 minutes time to
reach to the house of his brother from the
Mosque and as soon as he reached to the
house of his brother, he saw that accusedappellant was stabbing his brother with
knife and at that time, the landlord and
residents of the locality came to the place
of occurrence. He further deposed that the
place of occurrence is just 10-15 meters
away from the house of Mohd. Raees
Ahmad. He also deposed that accusedappellant stabbed three times to the
deceased. He deposed in the crossexamination that he had no idea that
Karamat Ali was unconscious. He and
Karamat Ali went to the police station at 11
AM. The report was lodged by him. He
deposed that knife was recovered in his
presence and the residents of the locality
were also present. After incident, police did
not record the statement and his statement
was recorded on 03.08.2007.

13. P.W.-5, Sub-Inspector Resham
Singh was examined before the trial court
and he deposed that he investigated the
case and during investigation, he recorded
the statement of the FIR Scriber, Constable
Shabi Akhtar Zaidi, Rajmani Rakesh,
Station House Officer along with the
statement of the accused-appellant. He
proved the documents and also deposed
that it was not correct to say that knife was
not recovered.

14. P.W.-6 Rajmani Rakesh, Station
House Officer, Modi Nagar, Ghaziabad
was also examined by the trial court and he
deposed that Case Crime No.444 of 2007,
under Section 302 IPC was registered in
his presence. He recorded the statement
of witnesses Karamat Ali and Inayat Ali
on 04.08.2007. He also conducted the
inquest and sent the recovered articles to
forensic lab to get report. He also
identified Ext.Kha-19 pertaining to the
recovery items, which were sent for the
forensic report. He also deposed that
forensic report pertaining to knife was
not known to him.
8 All. Mahmood Ali Vs. State of U.P.
217

15. P.W.-7, Sanjay Tyagi S/o Raj
Veer Singh was examined by the trial court
and he deposed that on 26.07.2007, he had
gone to Hapur to his relatives house and he
went to meet the deceased Mohd. Raees
Ahmad at 5.30 AM and as soon as he
reached to the place of Power-loom factory,
he saw that one short height person was
stabbing Mohd. Raees Ahmad. Later on, he
came to know the name of the accusedappellant. After hearing alarm, Karamat
Ali, Inayat Ali and many people reached to
the place of occurrence and the accusedappellant ran away by hurling the knife.
The deceased was taken to the hospital in
injured state, however, he died before
reaching to the hospital.

16. In cross-examination, P.W.-7,
Sanjay Tyagi deposed that before he could
reach to the place of occurrence, all the
persons present at the place of occurrence
took Mohd. Raees Ahmad to the hospital.
He did not go to the hospital along with
people who had carried the deceased. He
went back to Kotwali City from the place
of occurrence.

17. P.W.-8 Dr. Rajendra Singh was
examined by the trial court and he deposed
that he conducted the proceedings of the
post-mortem of the deceased. The body
was brought by Constables Jaiveer Singh
and Sanjay Singh. He conducted the postmortem of the deceased, which indicates
three following injuries on his body:-

"1. Incised wound 11 cm x 2.5 cm
x bone deep on left side of forehead, 5 cm
from left eyebrow, left ear cut

2. Incised wound 7 cm x 2.5 cm x
cavity deep right side front of chest chest
just adjacent to right nipple

3. Incised wound 4 cm x 1 cm x
muscle deep on left thigh. 10 cm .. left knee
joint."

18. P.W.-8 Dr. Rajendra Singh
deposed before the court that the deceased
died due to shock and haemorrhage as a
result of ante-mortem injuries. He also
deposed that the injuries could have been
caused by knife. He also opined that the
deceased could have died due to the
injuries caused at 5.30 AM.

19. Sri Krishna Kumar, learned
amicus curiae appearing for the accusedappellant
has
made
the
following
submissions:-

20. Learned amicus curiae has
submitted that after looking to the FIR, it is
evident that the FIR was lodged on
26.07.2007 by Head Constable Sohan Veer
Singh, but he was not examined, rather
P.W.-2 S.I. Saheed Ahmad was examined,
who stated that Sohan Veer Singh was
posted along with him and he identified his
signature. It is submitted that P.W.-2
Saheed
Ahmad
cannot
identify
the
signature of Sohan Veer Singh.

21. Learned amicus curiae has further
submitted that Case Crime No.478 of 2007,
under Section 25/4 Arms Act, Police Statin
Hapur Nagar, District Ghaziabad (Ext Ka11) was lodged by Shabi Akhtar Zaidi, who
is the FIR scriber, but he did not come in
the witness box as a prosecution witness to
prove the aforesaid FIR. No one on behalf
of the police proved the FIR lodged by
Shabi Akhtar Zaidi. He has also submitted
that FIR is suspicious because unless the
same is proved, it is not a peace of
evidence.
218 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Recovery Memo pertaining to
blood
stained
soil
dated
26.07.2007
(Ext.Ka-9) was also not proved as per the
Forensic Science Laboratory report dated
29.09.2007 (Ext.Ka-18). It is evident that
the blood stains were found disintegrated,
therefore, the origin of blood stains could
not be determined. It is also not ascertained
as to whether the blood stains was
pertaining to human being or animal. In
Recovery
Memo,
two
witnesses
are
mentioned,
namely,
Naeem
S/o
Nizamuddin and Maulana Anwar S/o
Maulana Akhtar. In cross-examination,
Naeem
denied
the
version
of
the
examination-in-Chief
stating
that
on
26.06.2007, he was on his duty and did not
sign the inquest report.

23. In Recovery Memo dated
03.08.2007 (Ext.Ka-10), Inayat Ali S/o
Buniyad Ali and Karamat Ali S/o Murad
Ali are mentioned as witnesses, who are
cousin brothers of the deceased, Mohd.
Raees Ahmad. As per law, both the
witnesses of recovery memo should be
independent witnesses, but in the present
case both the witnesses are not independent
witnesses and they are relatives of the
deceased.

24. The discovered knife as per the
provisions of Section 27 of the Indian
Evidence Act is not proved. In the Forensic
Science
Laboratory
report
dated
29.07.2007 (Ext.Ka-18), it is mentioned
that seal of the bundle with knife was not
matched with the specimen, due to which
the bundle containing knife was returned to
the office of the Senior Superintendent of
Police, Ghaziabad without test. It is thus
clear that the weapon used, i.e. knife was
not proved by the Forensic Science
Laboratory.
P.W.-6,
Rajmani
Rakesh,
Investigating
Officer,
in
his
crossexamination on being asked that what
report was obtained from the Forensic
Science Laboratory, he deposed that he had
no knowledge about it. It is thus clear that
the knife as alleged to be used in the crime,
was not tested by the Forensic Science
Laboratory for the reason that it was not
matching with the recovery item.

25. The site plan shows that the
accused-appellant was standing with knife
and committed murder of the deceased
Mohd. Raees Ahmad in front of Bright
Rajshahi Public School. It means as per the
site plan, the place of occurrence of the
incident
was
Bright
Rajshahi
Public
School, but as per the FIR version, the
place of occurrence of the incident was in
front of Power-loom factory. The site plan
indicates that the accused-appellant was
seen by witness stabbing the deceased by
knife.
P.W.-6
Rajmani
Rakesh,
Investigating Officer, did not mention the
house of the accused-appellant in the site
plan. Thus, the site plan was not proved by
P.W.-6.

26. P.W.-1, Raj Mohammad has not
supported the prosecution case, but he was
neither cross-examined by the prosecution
nor was declared hostile. It has been
submitted that as per the law laid down by
Hon'ble Supreme Court in the case of
Javed Masood and another Vs. State of
Rajasthan, (2010) 3 SCC 538, the
statement given by P.W.-1 is not binding
and cannot be relied upon.

27. It has been submitted by the
learned amicus curiae that P.W.4, Inayat
Ali and P.W.-7, Sanjay Tyagi are chance
witnesses. P.W.-4, Inayat Ali is brother of
the deceased and P.W.-7, Sanjay Tyagi is
resident of near village of the deceased, but
surprisingly
their
names
were
not
8 All. Mahmood Ali Vs. State of U.P.
219
mentioned in the FIR as witnesses. The FIR
was also not lodged by any of them, rather
it was lodged by P.W.-1, Raj Mohammad.
P.W.-4, Inayat Ali in his cross-examination
gave contradictory statement and deposed
that when he reached to the house of the
accused-appellant, he saw that accusedappellant was stabbing the deceased with
knife, meaning thereby the place of
occurrence was the house of the accusedappellant, but as per the FIR version, the
place of occurrence of the incident was
Power-loom factory. P.W.-4, Inayat Ali
further gave statement that the deceased
was living alone in a rented house for the
last six years, but as per the FIR version, he
was living in the house of P.W.-1, Raj
Mohammad. P.W.-4, Inayat Ali in his
cross-examination stated that Karamat Ali
and other persons of the locality reached to
the police Station at 11 AM and thereafter
the report was lodged. This statement was
also contradictory to the version of the FIR
because the FIR was lodged by P.W.-1, Raj
Mohammad at 7.45 AM.

28. P.W.-7, Sanjay Tyagi is a chance
witness. He has admitted that he was
having good relations with the deceased,
Mohd. Raees Ahmad, who was resident of
his near village. He had given contradictory
statement in his cross-examination. It is
settled law that if the chance witnesses are
relatives or friends and they are giving
contradictory statements, their statements
cannot be reliable and credible in view of
the law laid down by the Hon'ble the
Supreme Court in the case of Harjinder
Singh @ Bhola Vs. State of Punjab,
(2004) 11 SCC 253.

29. D.W.-1, Parveen, wife of the
accused-appellant,
was
also
examined
before the court and she deposed that she
had not left her husband's house, rather she
was living with him. Thus, the motive
assigned in the present case is also
demolished.

(xi) In support of his contention,
learned amicus curiae for the accusedappellant has placed reliance on the
following judgements:-

Shahaja @ Shahajan Ismail
Mohd. Shaikh Vs. State of Maharashtra,
(2022) 6 SCC 553;

Harjinder Singh @ Bhola Vs.
State of Punjab (2004) 11 SCC 253; and

Javed Masood and another Vs.
State of Rajasthan, (2010) 3 SCC 538

30. Sri Gyan Narayan Kanaujiya,
learned
AGA-I,
learned
AGA
while
rebutting the arguments of learned amicus
curiae for the appellant has submitted that
P.Ws.4 and 7, who are the fact witnesses,
have proved their case along with formal
witnesses, who were examined by the trial
court. He has further submitted that knife
and the blood stained concrete have been
examined by the trial court and the trial
court has recorded a finding that the
aforesaid exhibits indicate that the deceased
was done to death by the accused-appellant.
The accused-appellant had assaulted the
deceased by using knife in presence of
P.Ws.4 and 7. Once the ocular witnesses
have deposed that the deceased was
assaulted by the accused-appellant by knife
in their presence, there is no reason to
disbelieve the prosecution case. He has also
submitted that motive is established in this
case as the accused-appellant believed that
deceased Mohd. Raees Ahmad helped
Parveen, wife of the accused-appellant,
who left the house of the accused-appellant.
It is submitted that due to the aforesaid
motive, the accused-appellant had enmity
with the deceased and he committed the
murder to fulfil his motive. It is also
220 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted that the injuries were caused by
knife, which is admitted by the doctor.
There is no doubt in the manner of assault
because the injuries are corresponding with
the prosecution case as mentioned in the
FIR as well as in the statement of the
witnesses before the trial court. It is further
submitted that since the prosecution case is
proved beyond reasonable doubt, therefore,
the appeal is liable to be dismissed.

31. In support of his contention,
learned AGA has placed reliance on the
following judgement:-

State through the Inspector of
Police Vs. Laly @ Manikandan and
another etc., 2022 LiveLaw (SC) 851: AIR
2022 SC 5034

32. We have heard learned counsel
for the parties and the submissions made by
them and perused the record.

33. The record reveals that P.W.-1,
Raj Mohammad has not supported the
prosecution case in the cross-examination,
he deposed before the court that the report
was not written by him, rather he made
signature on it. He did not seen the incident
and he was not present at the place of
occurrence. He lodged the report at the
behest of the neighbours and did not give
statement to the police. He further deposed
that he reached to the place of occurrence
after half an hour and his maternal uncle
was taken to the hospital. After looking to
the statement of the P.W.-1 and the
judgment of the Hon'ble Supreme Court in
the case of Javed Masood (supra), it is
evident that P.W.-1 has not supported the
prosecution case. The relevant paragraphs
of the aforesaid case are extracted herein
below:-

"13. In the present case the
prosecution never declared PWs 6,18, 29
and 30 "hostile". Their evidence did not
support
the
prosecution.
Instead,
it
supported the defence. There is nothing in
law that precludes the defence to rely on
their evidence. This court in Mukhtiar
Ahmed Ansari vs. State (NCTof Delhi)
(2005) 5 SCC 258 observed:

"30. A similar question came up
for consideration before this Court in Raja
Ram v. State of Rajasthan, (2005) 5 SCC
272. In that case, the evidence of the
Doctor who was examined as a prosecution
witness showed that the deceased was
being told by one K that she should
implicate the accused or else she might
have to face prosecution. The Doctor was
not declared "hostile". The High Court,
however, convicted the accused. This Court
held that it was open to the defence to rely
on the evidence of the Doctor and it was
binding on the prosecution.

31. In the present case, evidence
of PW1 Ved Prakash Goel destroyed the
genesis of the prosecution that he had given
his Maruti car to police in which police
had
gone
to
Bahai
Temple
and
apprehended the accused. When Goel did
not support that case, accused can rely on
that evidence."

34. The recovery of blood stains dated
26.07.2007 (Ext. Ka-9) was also not proved
before the trial court. As per the Forensic
Science
Laboratory
report
dated
29.09.2007 (Ext. Ka-18), the blood stains
were disintegrated; thus, the origin of blood
stains could not be determined whether it
was pertaining to human being or animal.
P.W.-4, Inayat Ali stated before the court
that he was not present at the time of the
inquest of the blood stains and he was
doing his duty in office. Thus, it is clear
8 All. Mahmood Ali Vs. State of U.P.
221
that recovery of blood stains was also not
proved by the prosecution.

35. After going through the record,
we find that the knife was recovered on
03.08.2007 (Ext. Ka-10) and there are two
witnesses of the inquest i.e. Inayat Ali and
Karamat Ali, who are cousin brothers of
the deceased, Mohd. Raees Ahmad and
they are not the independent witnesses. The
discovered knife was not proved as per the
provisions of Section 27 of the Indian
Evidence Act because the Forensic Science
Laboratory report dated 29.09.2007 (Ext.
Ka-18) indicates that seal of the bundle
with knife was not matching with the
specimen seal, therefore, the Forensic
Science Laboratory had returned back the
bundle of knife to the office of the Senior
Superintendent
of
Police,
Ghaziabad
without examination. It is thus clear that
the knife as alleged to be used in the crime,
has not been examined by the Forensic
Science Laboratory on the ground that seal
of the recovered knife was not matching
with the specimen.

36. We further find that as per the site
plan (Ext. Ka-15), accused-appellant was
standing with knife and committed murder
of the deceased in front of Bright Rajshahi
Public School. It means that as per the site
plan, the place of occurrence of the incident
was in front of the Bright Rajshahi Public
School, but as per the FIR version, the
place of occurrence of the incident was in
front of the Power-loom factory. P.W.-6,
Rajmani Rakesh, Investigating Officer, did
not mention the house of the accusedappellant in the site plan. Thus, the site
plan is also not proved by P.W.-6.

37. After examination, we further find
that P.W.4, Inayagt Ali and P.W.-7, Sanjay
Tyagi are the chance witness. P.W.-4, Inayat
Ali is the brother of the deceased, Mohd.
Raees Ahmad and he has given contradictory
statements. He deposed before the court that
when he reached to the house of the accusedappellant, he was stabbing his brother Raees
Ahmad by knife. After looking to his
statement, it is evident that the place of
occurrence of the incident was the house of
the accused-appellant, but as per the FIR
version, place of occurrence of the incident
was the Power-loom factory. He made
statement in his cross-examination on
24.03.2009 that the deceased was living alone
in a rented room for the last six years, but as
per the FIR version, he was living in the
house of P.W.-1, Raj Mohammad. He further
stated in his cross-examination that he and
other persons of the locality reached to the
police station at 11 AM and thereafter FIR
was lodged by him. This is another
contradictory statement because the FIR was
lodged at 7.45 AM by P.W.-1, Raj
Mohammad. It is surprising to note that the
incident took place on 26.07.2007 and P.W.-
4, Inayat Ali, brother of the deceased and
claims to be the witness, did not lodge the
FIR. His name was also not mentioned in the
FIR as witness; thus his presence is highly
doubtful.

38. P.W.-7, Sanjay Tyagi, who is
chance witness and the resident of the near
village
of
the
deceased,
has
given
contradictory statements before the court.
He is friend of the deceased and belongs to
nearby village, which is admitted in crossexamination. He did not identify the
accused-appellant and deposed that a short
height person was stabbing the deceased.
Therefore, statements of P.Ws.4 and 7
appear to be incredible in view of the law
laid down by the Hon'ble Supreme Court in
the case of Harjinder Singh @ Bhola
(supra). The relevant paragraphs of the
aforesaid case are extracted herein below:-
222 INDIAN LAW REPORTS ALLAHABAD SERIES

"6. P.Ws. 3 and 4, apart from
being close relatives of the deceased,
happen to be the chance witnesses. It looks
as though the assailants were all the while
waiting for P.Ws. 3 and 4 to reach the spot
and witness the incident. Of course, for the
mere
reason
that
they
are
chance
witnesses,
their
evidence
cannot
be
discarded if we find assurance from the
prosecution evidence pointing to the guilt
of the accused. We, however, feel that their
evidence should have been more carefully
analysed and evaluated, which the High
Court failed to do.

7. Right from the origin of the
prosecution story, we find a number of
irreconcilable versions and contradictions
on certain material aspects which throw
any amount of doubt on the veracity of the
evidence tendered by P.Ws. 3 and 4.
According to the version of the mother of
the deceased (P.W.6), the accused persons
took the deceased with them at about 5 p.m.
This fact was brought to the notice of her
husband when he returned home at about 7
p.m. This is what P.W.3 also says. P.W.3
stated that he left for Jorahan Village at
about 7.30 p.m. to find his son. He met
P.W.4 (Ranjit Singh) there and both of
them searched, but could not find his son.
They returned to Ranguwal after 9 p.m.
While on the way, they saw the incident
near the Primary School. But we have the
evidence
of
P.W.5
(Granthi
of
the
Gurudwara of Village Jorahan) according
to whom, he at the instance of P.W.3 made
the announcement over the loud-speaker
before sunset about the missing person
Gurpreet Singh. P.W.4 also states that
P.W.3 met him before sunset. As it was the
peak winter month of January, the sunset
should have been at about 5.30 p.m. This
version of P.Ws. 5 and 4 does not,
therefore, fit into the version of P.Ws. 3 and
6 that they became apprehensive of the
safety of the deceased at about 7 p.m. and
thereafter P.W.3 left the house at 7.30 p.m.
in search of his missing son.
.....................

14. The foregoing discussion
leads us to conclude that the Trial Court
and the High Court did not consider
certain material aspects apparent from the
evidence
and
there
was
almost
a
mechanical acceptance of the evidence of
the two chance witnesses whose evidence
should have been evaluated with greater
care and caution. As pointed out by this
Court in Satbir Vs. Surat Singh & Anr.
[1997 (4) SCC 192], a "cautious and close
scrutiny" of the evidence of chance
witnesses should inform the approach of
the Court. In these circumstances, this
Court need not feel bound to accept the
findings. The overall picture we get on a
critical examination of the prosecution
evidence is that PWs 3 & 4 were
introduced as eye-witnesses only after the
dead body was found."

39. We find that the scriber of Case
Crime No.478 of 2007, under Section 25/4
Arms Act, namely, Shabi Akhtar Zaidi was not
examined by the trial court. No police personnel
was examined to prove the said FIR by the trial
court. The discovered knife was returned by the
Forensic Science Laboratory on the ground that
seal of the bundle of knife was not matched
with the recovered knife. Thus, the weapon
used in the crime is also not proved.

40. After recording the aforesaid
conclusions, which are based on the
evidence adduced on record, we find that
the finding recorded by the trial court in
convicting and sentencing the accusedappellant is against the record and is
perverse. Thus, the impugned judgement
and order of the trial court suffers from
infirmity and it deserves to be set aside.
8 All. Prem Nath Mishra & Ors. Vs. State of U.P. & Anr.
223

41. Appeal is accordingly allowed and
the impugned judgement and order dated
06.11.2009
passed
by
the
learned
Additional Sessions Judge, Court No.6,
Ghaziabad in Sessions Trial No.201 of
2008, arising out of Case Crime No.444 of
2007
convicting
and
sentencing
the
accused-appellant for life imprisonment
under Section 302 IPC and in Sessions
Trial No.189 of 2008, arising out of Case
Crime No.478 of 2007, convicting and
sentencing the accused-appellant for one
year rigorous imprisonment under Section
25/4 Arms Act is hereby set aside and the
accused-appellant is acquitted from all the
charges.

42. Accused-appellant is in jail. He
shall be released forthwith unless wanted in
any other case.

43. Before parting, we appreciate Sri
Krishna Kumar, learned amicus curiae,
who has thoroughly and meticulously
prepared the case. We are impressed with
the arguments advanced by him. We direct
the State Legal Services Authority to pay
Rs.15,000/- (Rupees Fifteen Thousand) to
Sri Krishna Kumar, learned amicus curiae
as honorarium for his valuable assistance
in disposal of this appeal. The honorarium
will paid to him within fifteen days. Office
is directed to send a copy of this
judgement and order to the State Legal
Services
Authority
for
necessary
compliance.

44. Let lower court record be sent
back forthwith along with a copy of this
judgement and order for compliance.
----------
(2024) 8 ILRA 223
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.08.2024
BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 18853 of 2024

Prem Nath Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Sarvesh Kumar Mishra, Sri Deepak
Upadhyay

Counsel for the Opposite Parties:
G.A., Sri Sanjeev Kumar Pandey, Sri Vijay
Kumar Pandey

A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 323, 452, 504 & 506summoning order-handling of rival NCRsfiling of chargesheet-Subsequent criminal
complaint-the
present
case
revolves
around
the
legal
representation
and
procedural handling of rival NCRs (Non
Cognizable
Reports)
and
subsequent
criminal
complaints
under
IPC-It
examines
the
court
discretion
in
summoning the accused under additional
sections of the IPC based on the evidence
presented in both the NCRs and the
subsequent complaint-It underscores the
importance of due process in handling
complaints when initial investigations may
not fully address all potential charges,
specifically
highlighting
the
court's
authority to summon the accused under
more severe charges if warranted by the
evidence-multiple proceedings on same
set of facts could not be proceeded further
and it could be quashed if they are filed
with malafide intention- Hence, impugned
order set aside.(Para 1 to 15)

B. Legal error committed by the trial court
is that despite being aware that an NCR
was already lodged. No police report was
summoned to ascertain outcome of NCR
and facts thereof only on ground that