# Matgulla @ Ajay v. State of U.P

- **Citation:** (2024) 5 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-02
- **Case number:** Criminal Appeal No. 3850 of 2019
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matgulla-ajay-v-state-of-u-p-51965
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code-1860Sections 302 r/w 34, 504-The Arms Act1959- Sections 4/25- Indian Evidence Act,
1872-Section 27- Criminal appeals against
judgment and order of conviction whereby the
accused appellants convicted and sentenced to
life imprisonment- The incident occurred at about
6.30 in the evening on 13.2.2016, it is alleged
that when the deceased objected to hurling of
abuses by the accused persons both the accused
stabbed the deceased-No specific role assigned
to any of the two accused-The injury report as
well as postmortem it is apparent that there was
a solitary stab wound caused to the deceased-
PW-1 has admitted that he has not seen the
incident- Presence of P.W-2 appears to be
doubtful, particularly as he neither tried to save
the injured nor took him to the hospital and was
also not the person, who lodged the report- The
absence of panchnama also shows that there
were no independent witnesses who had witness
the disclosure allegedly made by the accused-
The manner in which the knife (murder weapon)
is said to have been recovered on the pointing
out of the accused raises more questions than it
answers- Orders of conviction and sentence set
aside.

Appeal allowed. (E-15)

## Text

5 All. Matgulla @ Ajay Vs. State of U.P.
151
sentence of the appellant from life
imprisonment
to
that
of
14
years
imprisonment. In our view, this case does
not fall in the category of a 'rare case' so as
to award to the appellant life imprisonment
especially when the Trial Court has not
recorded any specific finding for acquittal
under Section 302 IPC.

42. In the light of the foregoing
discussion, the impugned judgment and
order of conviction dated 13.03.2019 passed
by Additional Sessions Judge, Court No.15,
Kanpur Nagar in Sessions Trial No. 361 of
2016 (State vs. Ajit Kushwaha), stands
modified.

43. The accused appellant Ajit
Kushwaha is in custody since 22.01.2016
and has remained in jail ever since then. The
actual period of incarceration undergone by
him is about more than eight years. We are
of the considered view that the sentence
awarded
to
accused
appellant
Ajit
Kushwaha under Section 304-B IPC be
modified to the sentence of 14 years
imprisonment. The fine and the default
sentence shall remain maintained. The
appellant Ajit Kushwaha shall serve out the
remaining sentence if not already served
provided he is not wanted in any other case.

44. In view of the above, the present
criminal appeal consequently succeeds and
is allowed in part to that extent.

45. The Trial Court records be
returned back and consigned to record.
----------
(2024) 5 ILRA 151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3850 of 2019
Connected with
Criminal Appeal No. 3872 of 2019

Matgulla @ Ajay ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Kumar Ashutosh Srivastava

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Sections 302 r/w 34, 504-The Arms Act1959- Sections 4/25- Indian Evidence Act,
1872-Section 27- Criminal appeals against
judgment and order of conviction whereby the
accused appellants convicted and sentenced to
life imprisonment- The incident occurred at about
6.30 in the evening on 13.2.2016, it is alleged
that when the deceased objected to hurling of
abuses by the accused persons both the accused
stabbed the deceased-No specific role assigned
to any of the two accused-The injury report as
well as postmortem it is apparent that there was
a solitary stab wound caused to the deceased-
PW-1 has admitted that he has not seen the
incident- Presence of P.W-2 appears to be
doubtful, particularly as he neither tried to save
the injured nor took him to the hospital and was
also not the person, who lodged the report- The
absence of panchnama also shows that there
were no independent witnesses who had witness
the disclosure allegedly made by the accused-
The manner in which the knife (murder weapon)
is said to have been recovered on the pointing
out of the accused raises more questions than it
answers- Orders of conviction and sentence set
aside.

Appeal allowed. (E-15)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
152 INDIAN LAW REPORTS ALLAHABAD SERIES

1. These appeals are directed against
judgment and order of conviction and
sentence dated 26.4.2019 and 29.4.2019,
passed by Sessions Judge, Amroha, in
Sessions Trial No. 172 of 2016 (State Vs.
Matgulla @ Ajay and another), arising out
of Case Crime No.60 of 2016; and Sessions
Trial No.171 of 2016 (State Vs. Matgulla @
Ajay) arising out of Case Crime No.62 of
2016, Police Station Hasanpur, District
Amroha, whereby the accused appellants
Matgulla @ Ajay and Sanjay have been
convicted
and
sentenced
to
life
imprisonment alongwith fine of Rs.30,000/-
each under Section 302/34 IPC and on
failure to deposit fine to undergo additional
imprisonment for one year; two years
rigorous imprisonment under Section 504
IPC, and also accused appellant Matgulla @
Ajay has been convicted and sentenced to
one year rigorous imprisonment alongwith
fine of Rs.5,000/- under Section 4/25 of the
Arms Act and on failure to deposit fine to
undergo additional imprisonment for three
months.
All
sentences
are
to
run
concurrently.

2. Written report of informant Lala
(PW-1) forms the basis of prosecution case
as per which his brother had lit fire near the
graveyard and was sitting by it, to warm
himself in cold weather, when the two
accused arrived and started hurling abuses to
the informant's brother. The incident is of
13.2.2016 at 6.30 PM. Ranjeet (PW-2), the
informant's
brother
(deceased)
and
Dharmpal (not produced) objected to the
abuses whereafter the accused persons
inflicted knife blows on the deceased. On
the basis of such written report the first
information report came to be lodged on the
date of incident under Sections 307, 504 IPC
at 9.30 hours as Case Crime No.60 of 2016.
The
Investigating
Officer
collected
bloodstained and plain earth from the place
of occurrence. Recovery memo in that
regard has been exhibited as Ex.Ka-10. The
injured brother was rushed to the local
primary health centre wherein the doctor
incharge examined him and vide his report
(Ex.Ka-2) indicated following injuries on
him:-

"(i) I/w 3 x 1 cm on left side of chest
10 cm above umbilicus."

3. The injured brother died couple
of hours later. Inquest was conducted around
9.00 pm on the date of incident (Ex.Ka-4).
Postmortem was conducted on the next date
i.e. 14.2.2016 at 1.00 pm. As per the
postmortem report (Ex.Ka-3), following
ante-mortem injuries were found on the
deceased:-

"Stabbed wound size 3.5 cm x 1
cm x cavity deep, margins are inverted,
present on left side of abdomen, 12 cm
below left nipple and 12 cm above umbilicus
and 3 cm lateral to midline."

4. The cause of death has been
specified as shock due to ante-mortem
injury. Clothes worn by the deceased were
also taken in custody and all such recovered
materials were sent to Forensic Research
Laboratory, Agra.

5. Accused Matgulla was thereafter
arrested on 15.2.2016 and on his pointing
out the weapon of assault i.e. knife was
recovered from the bushes nearby the
place of occurrence. The recovery of knife
has been exhibited as Ex.Ka-11. Another
first information report under Section 4/25
of the Arms Act was then registered on
15.2.2016, at 20.10 hours, being Case
Crime No.62 of 2016. The recovered knife
was also sent to FSL, Agra for its scientific
examination.
5 All. Matgulla @ Ajay Vs. State of U.P.
153
6. The report of FSL has been
exhibited as Paper No.23-A. As per this
report blood was found on all items
including the knife. However, blood on the
knife was found disintegrated, and therefore,
it could not be matched. Investigation
ultimately concluded with submission of
chargesheet (Ex.Ka-14) against the accused
appellants under Section 302, 307, 504 IPC.
A separate chargesheet (Ex.Ka-20) was also
submitted against the accused Matgulla
under Section 4/25 of the Arms Act.
Cognizance was taken on the chargesheets,
whereafter the case was committed to the
court of sessions where it got registered as
Sessions Trial Nos.171 and 172 of 2016.
The accused appellants denied the charges
framed against them and demanded trial.

7. In addition to the documentary
evidence adduced during the trial, the
prosecution has relied upon the oral
testimony of two witnesses of fact, namely
Lala (PW-1) and (Ranjeet) PW-2. PW-1 is
the informant. In his examination-in-chief
he has stated that the incident occurred at
6.30 pm. The deceased had lit fire and was
sitting near it to warm himself when the two
accused came and started abusing his
brother. Deceased, Ranjeet and Dharmpal
objected to it, whereafter accused Sanjay
caught hold the deceased and accused
Matgulla stabbed him with a knife. PW-1
admits that he has not seen the incident
himself. Rather, he was going to ease
himself near the graveyard and when he
arrived at the spot the accused had left. He
only claims to have seen the two accused
fleeing from the spot. Matgulla was
carrying knife in his hand while running
away. He claims that he, together with his
injured brother came to police station and
got the written report scribed. PW-1 has
stated that his house is about 100 paces
from the place of incident. He was in the
habit of going to the same graveyard to
ease himself. He has also stated that after
causing the stab injury the accused left
towards the north. He later specified
during cross-examination that he saw the
accused from a distance of about 20 paces,
and there was no other villager at the place
of occurrence. He has admitted that there
existed no dispute between the deceased
and the accused. He further claimed that
when he came to the place of occurrence
he was informed by the injured brother
that accused Sanjay had caught hold of
him while accused Matgulla stabbed him.
He stated that this fact was informed to the
Investigating Officer and the fact that this
was not mentioned in his statement under
Section 161 Cr.P.C. cannot be explained.
He also stated that alongwith the deceased
brother, Ranjeet and Dharmpal were also
sitting by the side of fire but they made no
attempt to save his brother.

8. However, in his further crossexamination, PW-1 has claimed that he
saw the incident himself. Other villagers
came later. He also claimed that accused
persons threatened him with knife; he was
pushed by them before fleeing.

9. The other prosecution witness of
fact namely, Ranjeet (PW-2) has also
supported the prosecution case. PW-2,
however, offers somewhat distinct narration
of the incident. As per him the accused
persons hurled abuses on the deceased
because deceased had earlier objected to the
plucking of sugarcane from the field and had
also beaten the accused. PW-2 has further
stated that after the incident occurred, he
raised an alarm alongwith Dharmpal and
rushed towards the village. At some distance
he saw PW-1 and informed the incident to
him. In his cross-examination PW-2 has
stated that the deceased was like an uncle to
154 INDIAN LAW REPORTS ALLAHABAD SERIES
him and lived at a distance of 50 metres from
his house.

10. PW-2, however, claimed that
apart from himself and Dharmpal, two other
persons namely, Rahul and Sovinder were
also warming themselves by the fire lit by
deceased. Rahul and Sovinder have not been
produced. This part of the testimony of PW2 does not find support either from PW-1 or
from any other evidence on record. This
witness, however, states that PW-1 was not
even present at the place of occurrence. He
has denied that the Investigating Officer was
informed by him that he came to the village
and informed the incident to PW-1. PW-2
has also stated that police arrived nearly
after half an hour later and took the injured
alongwith PW-1. According to PW-2 the
informant's brother had fainted on being
stabbed and he was not in a position to
speak.

11. PW-3 is the doctor, who had
examined the injured. He has stated that
there was a solitary cut injury of the size 3x1
cm on left side of chest 10 cm above the
umbilicus. This injury could have come with
a sharp object.

12. PW-4 is doctor Farid Husain,
who has conducted the postmortem of the
deceased. He has stated that the solitary
injury was caused by a sharp object and the
corners were inverted.

13. PW-5 is the Investigating
Officer, who has proved the police papers.
He also arrested the accused and proved the
recovery of knife. In his cross-examination
the witness has admitted that the informant
did not inform him that accused Sanjay had
caught hold of the deceased. This witness
has clearly stated that he found no traces of
any fire lit at the place of occurrence. PW-6
is also a formal witness, who has proved the
police papers.

14. The evidence led during trial
has been confronted to the accused, who
have denied the evidence adduced against
them during trial. Matgulla has denied that
any knife was recovered on his pointing out.
Similar stand of denial was taken by both the
accused's. It is on the basis of the above
evidence that the Court of Sessions has
convicted the accused appellants and
sentenced them as per above.

15. Sri Rahul Saxena, appearing for
the appellants submits that the appellants
have been falsely implicated; there was no
motive on their part to commit the offence;
recovery of knife from accused Matgulla is
not reliable since the recovery was from
open bushes and is otherwise refuted by
testimony
of
witness;
there
is
no
independent witness to the recovery of
knife; there is no disclosure statement of the
accused pursuant to which the recovery was
made; the testimony of PW-1 and PW-2 are
not reliable.

16. Sri Vikas Goswami, learned
A.G.A., on the other hand, submits that the
witnesses
are
reliable
and
minor
contradictions in their testimony cannot be
relied upon to discredit the prosecution case.
The State counsel further argues that there
was a definite motive to commit the offence
by the accused and that the testimony of
PW-1 and PW-2 have rightly been relied
upon by the trial court. Submission is that
Court of Sessions has evaluated the
evidence on record in correct perspective
and that the appeals lack merit.

17. We have heard Sri Rahul
Saxena, learned counsel for the accused
appellants as well as Sri Vikas Goswami,
5 All. Matgulla @ Ajay Vs. State of U.P.
155
learned A.G.A. for the State and carefully
perused the evidence on record. Original
records of trial court have also been
examined by us.

18. Prosecution case, in this case,
emanates on the written report, wherein it is
specifically alleged that
the incident
occurred at about 6.30 in the evening on
13.2.2016. In the written report it is alleged
that when the deceased objected to hurling
of abuses by the accused persons both the
accused stabbed the deceased. In the FIR
there is no specific role assigned to any of
the two accused. However, in the injury
report as well as postmortem it is apparent
that there was a solitary stab wound caused
to the deceased. The prosecution case
essentially relies upon the recovery of knife
allegedly made on the pointing out of the
accused appellant Matgulla as well as
testimony of two prosecution witnesses of
fact namely, PW-1 and PW-2.

19. PW-1 in his examination-inchief has stated that the deceased objected to
the hurling of abuses by the accused on
which accused Sanjay had caught hold the
deceased and accused Matgulla stabbed
him. This part of the testimony of PW-1 is
stated in court and does not find reference in
the FIR. PW-1 has admitted that he has not
seen the incident, wherein his brother was
stabbed. In his examination-in-chief he has
only stated that he saw the two accused
fleeing from the place of occurrence. In the
cross-examination he is specific that he has
not seen the incident himself. PW-1 has
further stated that he saw the two accused
fleeing from a distance of twenty paces and
that no other villager had come. From the
testimony of PW-1 we find that he was
neither present at the place of occurrence
when the deceased was stabbed nor he has
seen the incident with his own eyes. This
witness cannot be stated to be an eyewitness. The most that can be attributed to
PW-1 is that he saw the accused running
from the place of occurrence. The place of
occurrence in the present case is the
graveyard which is a deserted place. It has
come in evidence that there were bushes
around and people generally used the
location to ease themselves. It is also
admitted that there was no source of light.
The incident has occurred in the month of
February and the witnesses have themselves
suggested that it was dark. Though the
witnesses have claimed that it was not fully
dark but from the evidence available on
record we find that the source of light was
lacking at the place of occurrence. We are
doubtful of the prosecution case that even in
the absence of source of light PW-1 could
have identified accused persons from a
distance of twenty paces. It appears more
probable to us that PW-1 arrived later at the
place of occurrence and that by then the
accused had already left.

20. PW-2 is the other witness of
fact, who has supported the prosecution
case. As against the version of PW-1 that
deceased was sitting by the fire alongwith
Dharmpal and Ranjeet, PW-2 has claimed
that two more persons namely, Rahul and
Sovindar were also present at the place of
occurrence. He has categorically stated that
PW-1 was not present at the place of
occurrence. PW-2 has stated that though
there were four persons but none of them
attempted to save the deceased. PW-2 has
been confronted with his previous statement
made to the Investigating Officer, wherein
he had alleged that he raised alarm and
informed the villagers about the incident and
when he left the place the injured was still
lying at the spot. PW-2 moreover has stated
that police arrived soon after the incident
and had taken the injured to the doctor
156 INDIAN LAW REPORTS ALLAHABAD SERIES
alongwith PW-1. The Investigating Officer,
however, had denied that he had come to the
place of occurrence or that he had taken the
injured to the hospital. Although the
Investigating Officer has stated that some
local policemen may have come to take the
injured but he is not definite in that regard.
The version of PW-2 that there were four
persons sitting alongwith the deceased is
clearly at variance with the prosecution
version. There is also material improvement
in the statement of PW-2 from what he has
initially disclosed to the Investigating
Officer. On the basis of evaluation of
evidence on record we find do not find PW2 to be a reliable witness. His presence
appears to be doubtful, particularly as he
neither tried to save the injured nor took him
to the hospital and was also not the person,
who lodged the report.

21. The other aspect which requires
examination in this case is the recovery of
knife on the pointing out of accused
Matgulla. The recovery memo of knife is
Ex.Ka.11 which shows that there is no
independent witness to the recovery of
knife. The knife otherwise has been
recovered from the bushes near the place of
occurrence close to graveyard. The manner
in which the knife is said to have been
recovered on the pointing out of the accused
appellant Matgulla raises more questions
than it answers.

22. First and foremost, we find that
though it is alleged that accused Matgulla
was arrested on 15.2.2016 and he admitted
his guilt before the police personnel and also
offered to get the knife recovered but
admittedly no disclosure statement has been
prepared of accused Matgulla nor any
panchnama has been contemporaneously
recorded by the Investigating Officer. The
absence of panchnama also shows that there
were no independent witnesses who had
witness the disclosure allegedly made by the
accused. In the absence of disclosure
statement of accused or its contemporaneous
recording in the presence of independent
witnesses the alleged recovery of knife
cannot be taken in evidence in terms of
Section 27 of Indian Evidence Act, 1872.

23. The site plan otherwise shows
that the recovery of knife is from a place
quite close to the place of occurrence. It is
difficult to believe that the knife lying in the
close vicinity of the injured was not noticed
for two days. There is absolutely no reason
as to why no independent person was
associated either at the time of making of
disclosure statement of the accused or when
the recovery itself was allegedly made. Mere
statement that no independent person was
willing to testify is not backed by any details
furnished by the Investigating Officer of the
persons whom he tried to associate in this
process. The knife although is alleged to
have blood stains but as per FSL report it is
not proved that the blood found on the knife
is human blood. The recovery of knife
therefore cannot be relied upon as a
circumstance against the accused appellants.

24. In the facts of the case apart
from testimony of two witnesses there is no
other evidence brought on record to
implicate the accused appellants. So far as
PW-1 is concerned we have already
observed that his testimony cannot be
treated to be that of an eye-witness,
inasmuch as he was not present at the place
of occurrence at the time of incident and
came later by when the incident had
occurred. We have also observed that there
was no source of light and as it was
somewhat dark the possibility of accused's
being recognized from a distance is remote.
The place of occurrence is a graveyard
5 All. Shyamveer Vs. State of U.P. & Anr.
157
having bushes all around and it was being
used by the villagers for the purposes of
defecation etc. So far as PW-2 is concerned
we find that his testimony cannot be relied
upon as there are material contradictions in
his
version.
There
are
otherwise
improvements made in his testimony from
what was disclosed earlier at the stage of
investigation. We, therefore, do not found
the testimony of PW-2 to be reliable or safe
in order to convict the accused appellants.
These aspects appear to have been
overlooked by the trial court and the
statement of witnesses have been relied
upon routinely without due care and caution.
The conclusions drawn by the trial court on
the aspect of appellants' guilt is thus found
to be contrary to the weight of evidence on
record.

25. Record otherwise shows that
appellant Matgulla @ Ajay is in jail for last
more than eight years, whereas accused
Sanjay has undergone incarceration of
almost six years. Upon evaluation of
prosecution evidence we find that the
accused appellants are clearly entitled to
benefit
of
doubt,
inasmuch
as
the
prosecution
has
not
succeeded
in
establishing its case against the accused
appellants beyond reasonable doubt. The
findings of the trial court that the guilt of
accused appellants are established beyond
reasonable doubt are thus reversed.

26. Consequently, the appeals
succeed and are allowed. The judgment and
orders of conviction and sentence of the
accused appellants Matgulla @ Ajay and
Sanjay are set aside. The appellants shall be
set to liberty unless they are required in any
other case, subject to compliance of Section
437A Cr.P.C.
----------
(2024) 5 ILRA 157
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 4378 of 2019

Shyamveer ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Suresh Dhar Dwivedi, Bishram Tiwari, Ritesh
Singh, Suresh Singh

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Sections-323, 376 & 452-The Scheduled
Caste and Scheduled Tribe - Prevention of
Atrocities
Act,
1989-Section
3(2)(v)-
Criminal appeal against the judgment and order
of conviction and sentence of life imprisonmentAccused entered the house of the victim and
subjected her to sexual assault- Victim has been
consistent in implicating the accused appellant of
committing rape upon her during investigation
under Section 161 Cr.P.C. also- By the time
medical examination was conducted, almost 40
hours had expired. In a case of rape, any force
used by the perpetrator to drag the victim or
push her on the ground to commit rape
necessarily need not cause such serious injury
that it would leave a scar even after two days-
No lady would otherwise make a false accusation
against her own dignity merely for getting some
money as compensation- No evidence on record
to show that the offence of rape was committed
by the accused on account of the caste identity
of the victim-Conviction u/s 3(2)(v) SC/ST Act &
u/s 323 IPC reversed-Punishment under Section
376 IPC is modified to 7 years rigorous
imprisonment alongwith fine of Rs.50,000/-.

Appeal disposed of. (E-15)