# Mohammad Anwar & Anr. (In Jail) v. State of U.P. 180 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 11 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Criminal Appeal No. 791 of 2013
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-anwar-anr-in-jail-v-state-of-u-p-180-indian-law-reports-allahabad-47801
- **Pages:** 16

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 313 &
437-A - Indian Penal Code, 1860 -
Sections - 34, 201, 302, 498-A & 304-B,
- Arms Act, 1959 - Sections 4 & 25 - The
Dowry Prohibition Act, 1961 - Sections
3 & 4 : - Criminal Appeal - Conviction &
Sentence - Life imprisonment with fine -
Evaluation of Evidences - offence of demand
of dowry and death - FIR, registered by the
informant with allegation that his daughter
(deceased) was killed by her husband with
the help of co-accused persons when she
failed
to
meet
their
dowry
demand
-
prosecution case merely based upon the
disclosure of main accused (husband) is that
he had killed the deceased and body part
were concealed down in the gutter with the
help
of
another
appellant-co-accused
(Gulsher) - co-accused is neither the family
member nor a relative of the accused
(husband)
who
had
disclosed
to
the
investigating officer about crime - bodies &
weapon are recovered from the house of main
accused - co-accused denied the disclosure
St.ment in his St.ment u/s 313 - in the event
of his denial, the disclosure St.ment cannot
be relied and accepted - court observed that,
merely on the strength of the discovery of the
dead bodies and weapon, it cannot be
presumed that co-accused had done any act
of crime - and there is no any cogent or
clinching evidence against the co-accused to
hold him guilty - consequently, convicting the
appellant-co-accused is hereby set-aside, but
the impugned conviction order against the
main accused is upheld - Appeal partly
allowed - direction accordingly.(Para - 74, 75,
77, 80, 81, 83, 84)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,905 of 54,044. This is a partial read: ask again with offset=39905 for what follows._

11 All. Mohammad Anwar & Anr. Vs. State of U.P.
179
but a legal distinction between 'may be
proved' and 'must be or should be proved as
was held by this Court in Shivaji Sahebrao
Bobade V State of Maharashtra 1973 CriLJ
1783 where the following observations were
made:
certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a Court can convict, and the
mental distance between 'may be' and 'must
be' is long and divides vague conjectures
from sure conclusions.

(2) the facts so established should be
consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty.

(3) the circumstances should be of a
conclusive nature and tendency

(4) they should exclude every possible
hypothesis except the one to be proved, and

(5) there must be a chain of evidence
so complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that in
all human probability the act must have been
done by the accused.

153. These five golden principles, if
we may say so, constitute the panchsheel of the
proof of a case based on circumstantial
evidence''.

20. After considering the aforesaid law laid
down by the Apex Court on circumstantial
evidence, it emerges that conviction can be based
solely on the basis of circumstantial evidence
where the circumstances are fully established and
the chain of circumstances is conclusively
complete and the cumulative effect of all the
circumstances is such which shows that only and
only the accused is found guilty of committing
the offence. After perusal of the evidence of the
prosecution witnesses we are of the opinion that
the prosecution has failed to prove its case
beyond reasonable doubt and also failed to prove
the evidence regarding the factum of the
deceased having been last seen in the company
of accused persons. In the cases of direct
evidence the motive aspect pales into complete
insignificance but in the cases of circumstantial
evidence it serves as one of the circumstances to
be reckoned against the accused in proof of the
guilt. In the present case the prosecution has tried
to show during the course of trial that there was a
demand of repayment of loan amount on behalf
of accused persons and in that connection some
hot-talk and scuffle between the accused persons
and the deceased also took place but as we have
seen during analysis of evidence that this aspect
of the case also could not be satisfactorily proved
by prosecution. We therefore are of the opinion
that the prosecution has utterly failed to prove the
guilt of accused persons in commission of
charged crime.

21. We, therefore, find that the court below
has taken a plausible and possible view of the
matter on appreciation of entire evidence on
record, which cannot be substituted by this Court
by taking a different view as per the law
discussed above. We also do not find that the
findings recorded by the trial court are palpably
wrong, manifestly erroneous or demonstrably
unsustainable, therefore, the present appeal is
DISMISSED.
----------
(2022) 11 ILRA 179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 791 of 2013

Mohammad Anwar & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party
180 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Raghubir Singh, Sri A.C. Srivastava,
Anita Singh, Sri Jata Shankar Pandey, Sri
Sukhvir Singh

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 161, 313 &
437-A - Indian Penal Code, 1860 -
Sections - 34, 201, 302, 498-A & 304-B,
- Arms Act, 1959 - Sections 4 & 25 - The
Dowry Prohibition Act, 1961 - Sections
3 & 4 : - Criminal Appeal - Conviction &
Sentence - Life imprisonment with fine -
Evaluation of Evidences - offence of demand
of dowry and death - FIR, registered by the
informant with allegation that his daughter
(deceased) was killed by her husband with
the help of co-accused persons when she
failed
to
meet
their
dowry
demand
-
prosecution case merely based upon the
disclosure of main accused (husband) is that
he had killed the deceased and body part
were concealed down in the gutter with the
help
of
another
appellant-co-accused
(Gulsher) - co-accused is neither the family
member nor a relative of the accused
(husband)
who
had
disclosed
to
the
investigating officer about crime - bodies &
weapon are recovered from the house of main
accused - co-accused denied the disclosure
St.ment in his St.ment u/s 313 - in the event
of his denial, the disclosure St.ment cannot
be relied and accepted - court observed that,
merely on the strength of the discovery of the
dead bodies and weapon, it cannot be
presumed that co-accused had done any act
of crime - and there is no any cogent or
clinching evidence against the co-accused to
hold him guilty - consequently, convicting the
appellant-co-accused is hereby set-aside, but
the impugned conviction order against the
main accused is upheld - Appeal partly
allowed - direction accordingly.(Para - 74, 75,
77, 80, 81, 83, 84)

Appeal partly allowed. (E-11)

List of Cases cited:
1. Shahaja @ Shahajan Ismail Mohd. Shaikh v St. of
Maharashtra, 2022 Live Law(SC) 596

2. Hanumant Vs The St. of M. P., 1975 AIR 1083

3. Jaharlal Das Vs St. of Orissa, AIR 1991 SC 1388

(Delivered by Hon'ble Syed Waiz Mian, J.)

1. We have perused the record and
have also heard Shri Sukhvir Singh,
Amicus Curiae and Shri Om Prakash
Mishra, learned A.G.A. for the Staterespondents.

2. This criminal appeal has been
preferred
by
appellants
against
the
judgement and order dated 08.02.2003
passed by A.D.J., Court No.1, Agra in
Sessions Trial No.677 of 2010, arising out
of Case Crime No.35 of 2010 (State of U.P.
Vs. Mohd. Anwar Painter and another),
under Sections 302 read with Section 34
I.P.C.; S.T. Nos.678 & 679 of 2010, under
Sections 4/25 Arms Act in Case Crime
No.172 of 2010 (State of U.P. Vs. Anwar
Painter) and S.T. No.679 of 2010 (State of
U.P. Vs. Gulsher); S.T. No.173 of 2010,
under Section 4/25 Arms Act, Police
Station -Sikandra, District-Agra.

2. Convicting and sentencing the
accused appellants, Anwar Painter and
Gulsher on 04.02.2013 & 08.02.2013 for
life imprisonment and fine of Rs.25,000/-
each and in default of payment of fine, they
have
further
to
undergo
simple
imprisonment of three years each and also
sentencing them under Sections 201 I.P.C.
for three years rigorous imprisonment and
fine of Rs. 10,000/- each and in default of
fine, they have to further undergo 8 months
each simple imprisonment.

3. Accused appellants-Anwar Painter
and Gulsher have also been sentenced
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
181
under Section 4/25 Arms Act with one year
each rigorous imprisonment and fine of
Rs.5,000/- each and in default of payment
of fine both have to further undergo 6
months each, simple imprisonment. All the
sentences are directed to run concurrently.

4. Prosecution case in brief is that the
informant, Smt. Salma presented an F.I.R.
Paper No. Exhibit No. Ka-1 to D.I.G., Agra
on 08.01.2010 and on its movement, F.I.R.
Chik No.8 of 2010 case at Crime No.35 of
2010 on 16.01.2010 at 12:30 p.m., Police
Station Sikandra, District Agra, was
registered. The facts in the F.I.R., Exhibit
No. Ka-1, unfolds that informant's daughter
Ashma was married with Sonu, five years
before, in which dowry was given and
Rupees two lakhs were spent. After
marriage, her son-in-law, Sonu, father-inlaw- Anwar Painter, mother-in-law-Baby,
Sister-in-law (Anjum) wife of Nazim,
resident of Haryana, Chauka, and Smt.
Sarbery, wife of elder brother of father-inlaw (Anwar), Afsar, Anwar, resident of
Ghad Teli Pada, Sarai Khawaja Police
Station-Shahganj, District Agra and also
Smt. Aato wife of Ali Husain resident of
Mehrav Ka Nagla Teli Pada, (near Sarai
Khwaja), Police Station Shahganj, DistrictAgra, would taunt her daughter that
sufficient amount of dowry has not been
given by her parents and constantly
demanded motor cycle as additional dowry.

5. Informant had also presented an
earlier application in the Year 2006 to
S.S.P. Agra, and thereupon, police sent her
daughter with Sonu but all the accused
persisted to torture her mentally and
physically on account of non-fulfilment of
additional demand for dowry, they also
threatened that if their demand was not
fulfilled, she will be killed; she was trying
to meet her daughter in her matrimonial
house since last one month but none was
found there; she met Sarvari and Afser and
enquired about her daughter; they told her
that after killing her daughter, Sonu,
Anwar, Anju, Baby have left their houses;
she approached police station to lodge the
F.I.R. but that was not lodged there.

6. Upon receiving the investigation,
I.O. along with police team arrested
accused-Anwar Painter and Gulsher on
30.03.2010; in the hope of recovery of
assault weapon in the house of Anwar, in
the presence of the witnesses Maharaj,
Mammu Khan, accused Anwar took them
to the room of this house and at his
pointing out weapon of offence (chhuri)
from beneath the bed, was recovered,
whereas, at the instance of coaccused
(Gulsher) a chhuri (knive) from beneath the
bed was also recovered; both the accused in
the presence of the witnesses confessed that
by means of the recovered weapons, they
had killed Sonu. The details of the
aforementioned recovered weapons has
also been described in the memo of
recovery, Exhibit Ka-2.

7. The Investigating Officer also on
08.04.2010, got recovered the dead bodies
of Sonu, Ashma and Choti from under the
gutter and memo of recovery of the bodies
Paper No. Ka.32 was prepared.

8. During investigation, Sections 304B, 302 and 201 I.P.C. were added and also
in the light of the recovery of churi (knife),
Case at Crime No.172/2010 under Section
4/25 Arms Act against Anwar and another
Case Crime No. 173 of 2010 under Section
4/5 Arms Act, against coaccused- Gulsher,
were registered on 30.03.2010 at 19:00
(7:00 p.m.); substance of these F.I.R.s was
also entered in the G.D. Nos. 37 & 38 at
7:00 p.m.; investigation was also handed
182 INDIAN LAW REPORTS ALLAHABAD SERIES
over
to
another
Sub-Inspector.
The
Investigation Officer inspected the place of
recovery of weapons and prepared the site
plan.

9. The Inquest Report of Smt. Ashma
Exhibit No. Ka-8, Choti, Exhibit No. Ka-3
and Sonu Exhibit No. Ka-3 respectively
were prepared by the Investigating Officer.
Doctors who conducted the autopsy over
the dead bodies of the deceased also have
prepared autopsy reports which shall be
discussed later.

10. The Investigating Officer, during
course of the investigation, recorded the
statements of informant, witnesses and
accused under Sections 161 of Cr.P.C. and
the evidence for offences under Sections
498- A, 302, 201, 304-B I.P.C. & Section
3⁄4 of Dowry Prohibition Act, under Section
173 (3)(b) of Cr.P.C. against the accused
Anwar Painter, Smt. Baby and Gulsher
with regard to Crime No.35 of 2010 charge
sheet
was
forwarded
to
the
court
concerned.

11. In Case Crime Nos.172/2010 &
173/2010 pertaining to Section 4/25 Arms
Act, charge sheets were also forwarded
against accused to the court of learned
Magistrate concerned wherefrom, after
completing the formalities, these criminal
cases were committed to the District Court
of Sessions where case pertaining to Case
Crime No.35 of 2010 was registered as S.T.
No.677 of 2010 whereas S.T. No.670 of
2010,
678/2010
&
689/2010
were
registered
in
connection
with
Crime
No.172/2010 and 173/2010 respectively.

12. The learned trial court vide order
dated 15.09.2010 framed charges against
the accused Anwar Painter, Smt. Baby &
Gulsher for offences under Sections 498-A,
304-B read with Section 34, Section 302
read with Section 34 and Section 301 of
I.P.C. and also under Section 3⁄4 Dowry
Prohibition Act and also charge under
Section 4/25 Arms Act against both
accused were framed. Accused denied the
charges and claim trial.

13. Prosecution in order to prove its
case,
examined
P.W.-1-Smt.
Salma,
happens to be informant and witnesses
P.W.-2-Krishna
Nandan
Tiwari
(SubInspector), P.W.3- Mammu Khan, P.W.4Mool Chandra Mutaina (Sub-Inspector),
P.W.5-Dr. A.K.Upadhayay, P.W.6-Desh
Raj Mutaina, P.W.7.-Shayam Bahadur
Mutaina (C.P.), P.W.8- Yashpal Singh
(Sub-Inspector), P.W.9-Dr. A.K. Mishra,
P.W.10-Ashok
Kumar
(S.S.P.),
P.W.11.Aseem Chaudhari (Investigation
Officer).

14. Accused in their statements
recorded under Section 313 Cr.P.C. have
claimed that evidence of P.W.1, Smt.
Salma is false and is the result of their
enmity with her.

15. Co-accused Gulsher has also
stated in his statement that chhuri (knife)
was not recovered at his behest, he has no
connection with the alleged incident; he has
been falsely implicated in this case merely
because of having acquaintance with family
members of Sonu. He further stated that on
account of the compromise, he has been
falsely roped in this case.

16. Accused/applicant- Anwar Painter
has also denied the recovery of the dead
bodies of the deceased on 16.11.2012. He
further said that a year before the incident,
he with his wife in the search of work of
labour
had
left
his
house
for
his
matrimonial house in the State of Bihar. He
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
183
has also stated that the deceased wife of his
son was of bad character; she wanted to gift
his house to her parents; many strangers
would come to meet her and he tried to stop
them to visit his house; thereafter, some of
the strangers had done his daughter-in-law
to death; bodies of the deceased were not
hidden by him. On behalf of the accused,
witness
D.W.1,
Amit
Chauhan
was
examined.

17. By the instant criminal appeal, the
impugned judgement and order dated
08.02.2013, is being challenged on the
ground that without cogent evidence on
record, illegal order has been passed and
despite
the
inconsistencies
and
contradictions in the testimonies of the
witnesses, on false appreciation, surmises
and wrong presumption, the impugned
judgment and order in connection with S.T.
No.677 of 2010 in Case Crime No.35 of
2010, under Sections 302/34, 201 I.P.C.
and S.T. Nos.678 and 679 of 2010, under
Sections 4/25 Arms Act, against them has
been passed; the learned trial court has
committed gross error in the eyes of law
and also against the principle of justice.

18. Accused/applicants inter-alia,
have
also
challenged
the
impugned
judgment and order by saying that there is
no
direct,
indirect
or
circumstantial
evidence against them; the prosecution case
is based on the basis of false, fabricated and
unlawful evidence hence, the impugned
judgment and order dated 08.02.2013, is
not sustainable in the eye of law and
present criminal appeal deserves to be
allowed and the impugned judgment and
order be accordingly set aside.

19. The learned trial court vide
judgment and order dated 04.02.2013
acquitted
accused
Smt.
Baby
under
Sections 498-A, 304-B read with Section
34, Section 302 read with Section 34 I.P.C.
and
also
under
Section
3⁄4
Dowry
Prohibition Act.

21. The learned trial Court has also
acquitted accused Anwar Painter from the
charges under Sections 498-A, 304-B read
with Section 34 and Section 3⁄4 Dowry
Prohibition Act. Hence this appeal has been
preferred by accused Anwar Painter and
Gulsher against impugned judgment and
order against their conviction and sentence
for offences under Sections 302/34 & 201
I.P.C. & Section 4/25 Arms Act.

22. P.W.1, Smt. Salma, informant in
her oral evidence has proved F.I.R. as
Exhibit.Ka.1.

23. P.W.1 Smt. Salma, in her chief
examination deposes that she had married
her daughter (Aashma) five years ago with
Sonu and had given dowry as per her
financial capacity; about Rs.2 lakhs was
spent in the marriage; after marriage, Sonu
(husband), Anwar Painer (father-in-law),
Smt. Baby (mother-in-law), Anju (sister-inlaw/nand) Smt. Sarbery (wife of elder
brother of Anwar Painter), were not
satisfied with dowry and consistently
demanded motor cycle as an additional
dowry and subjected her daughter to torture
and also would beat her; she had made a
complaint to S.S.P., Agra in the Year 2006,
but during Mediation and Conciliation, her
daughter was persuaded by her husband to
go with him, however thereafter, it is
alleged that they again tortured and
threatened her (Smt. Salma); threatening,
her daughter would be done to death, if
their demand of motorcycle is not met; she
went to meet her daughter at her
matrimonial house, but she did not find her;
on inquiry from the neighbours, she came
184 INDIAN LAW REPORTS ALLAHABAD SERIES
to know that ten days ago, after locking the
house, they with Aashma had left their
house; later on she came to know that they
are living somewhere in the State of Bihar.
On arrest from Bihar, accused Anwar
Painter and Smt. Baby confessed that her
daughter, sonin- law, Sonu and grand
daughter (Saleem Fatima) aged about one
and half years before were killed by them;
Gulsher, who is friend of Anwar Painter,
was also involved in the commission of the
incident; all the accused also confessed that
they
have
killed
all
the
three
aforementioned persons and their dead
bodies have been hidden in the gutter of the
inlaws house.

24. P.W.1 Smt. Salma, in her cross
examination, has stated that in the F.I.R., it
was mentioned that Gulsher was not
involved in the incident; therefore, she has
not nominated Gulsher in the F.I.R. She
deposed that her daughter was disable;
house of Gulsher is situated adjacent to the
house of Anwar Painter.

25. P.W.1 also deposed that her
statement, by Sub-Inspector, was recorded in
which she did not tell him that family members
of Sonu would beat her daughter; she also
admits that she has not witnessed Gulsher
killing her son-in-law, grand daughter. She
states that Smt. Baby had told her that after
killing the deceased their body were thrown in
the gutter; she has also admitted that she did not
see accused Gulsher to hide the knife; she did
not receive any phone call from Bihar; brother
of Anwar Painter had told her that Anwar, Baby
had absconded to Bihar. As such P.W.1 Smt.
Salma, admits in her deposition that she had not
witnessed the accused killing Sonu, Aashma
and her grand daughter.

26. She has deposed that Daroga Ji
(I.O.), had called her from Bihar; some
Army men had asked her to reach over
there, because all the possibilities indicated
that Ashma, Sonu, Baby & Anwar Chotu
have been killed; she also admits that
Daroga Ji, (Investigating Officer) had not
enquired about Anwar and Gulsher in her
presence; and (chhuri)/knife was not got
recovered from Gulsher; she has also not
acknowledged that dispute existed between
Gulsher and Anwar Painter; she has also
denied the suggestion put to her on behalf
of accused Gulsher that it would be wrong
to say that he had not killed Aashma, Chotu
and Sonu and she has falsely implicated
him.

27. It transpires from the above,
deposition of P.W.1. Smt. Salma that she
has not seen the accused killing Sonu, Smt.
Aashma and daughter-inlaw; her admission
in her ocular evidence that she did not
witness the recovery of alleged chhuri
(knife) on the pointing out of Gulsher; her
deposition about the demand of motorcycle
as an additional dowry by the accused and
on account of non-fulfilment of the
demand, her daughter was subjected to
mental and physical torture, has not been
found
credible
,
corroborative
and
trustworthy. The learned trial court for
want of cogent evidence on record
pertaining to offences u/s 498-A, 304-B of
I.P.C. & 3⁄4 Anti Dowry Prohibition Act has
not held accused (Anwar Painter and his
wife Baby) guilty, thus, has acquitted them
from the charges under above mentioned
offences.

28. P.W.1 Smt. Salma, in her cross
examination has deposed that Anwar
Painter had solemnised second marriage
and out of that wedlock, they have five
children and he also solemnised his third
marriage and out of that marriage, he has
one child. Next, she has stated that Anwar
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
185
Painter has total five children; she has
denied the suggestion put to her that three
months
after
marriage
her
daughter
delivered a baby; accused did not make
complaint to her or any one about her bad
character of her daughter; she has also
denied in her deposition that due to alleged
bad character of her daughter, strangers
would visit her and Sonu had ever raised
any objection; she has also denied that in
view of visits by strangers, accused Anwar
and his wife had left their house for Bihar;
she also admits that part of the incident
occurred at the house of Anwar Painter
situated at P.P.,Nagar, Police Station
Sikandra. As such, Smt. Salma, has also
admitted in her statement that no part of the
incident was witnessed by her; her
testimony with regard to the murder of
daughter or son-in-law by the accused is
based on hearsay; and also her admission in
her cross examination to the effect that
after three and half months police arrested
Anwar Painter and Smt. Baby from Bihar
and was brought them to Agra; Smt. Baby
had told the police in Bihar that dead
bodies of Aashma, Sonu and their baby
aged about 1 1⁄2 half year, after their murder
were thrown in the gutter and also in her
deposition, in the examination-in-chief, she
has stated that accused have killed her
daughter, son-in-law and grand daughter
and they had hidden their dead bodies in
the gutter, and on the pointing out of the
accused,
all
the
three
bodies
were
recovered, this testimony is not only self
contradictory but also inconsistent with
prosecution story; Memo, Exhibit-ka.32
pertaining to the recovery of the dead
bodies of the deceased and in this
connection, video cassette and C.D. which
were allegedly made on the date of the
recovery
i.e.,
30.03.2010,
by
the
Investigating Officer, does not bear either
the signature or thumb impression of
informant P.W.1, Smt. Salma, therefore, it
is clear that recovery of the dead bodies
from under the gutter of the house owned
by Anwar Painter was not witnessed by
her.

29. P.W.4, Nandan Tiwari, deposes in
his examination-in-chief that on 30.03.2010
at 12:55, along with police team (Officer
in-charge) of the police station, S.I., and
other police personnel along with accused
Anwar Painter and Gulsher had visited and
inspected the house of accused Anwar
Painter; At their instance, accused Anwar
Painter and Gulsher, got retrieved the
decomposed bodies out of gutter in his
(Anwar Painter) house of Sonu, daughterin-law(Aashma) and grand daughter; At the
place of the recovery, A.C.M.-II was also
present; all three dead bodies were
separately sealed in cloth.

30. P.W.2, Krishna Nandan Tiwari,
has also stated that accused Anwar Painter
and Gulsher respectively had got recovered
chhura (knife) from beneath the bed of
room; and both accused had in their
disclosure statement confessed that by
these knives, they had killed the deceased.

31. P.W.2, Krishna Nandan Tiwari,
Sub-Inspector,
admits
in
his
cross
examination that the memo of recovery
does not bear the signature of local
witnesses; he also further admits that on
30.03.2010 at 12:55, relevant papers on the
record having been prepared on the
dictation of A.C.J.M. -II.

32. P.W.2, Krishna Nandan Tiwari,
Sub-Inspector, has not been cross examined
about his deposition in his examination-inchief
regarding
the
recovery
of
decomposed dead bodies of Sonu, Aashma
and their daughter on the pointing out of
186 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Anwar Painter and Gulsher from
under the safety tank/gutter and two knives
from underneath the bed and this witness
has also not been confronted in his crossexamination regarding his deposition that
both the accused i.e., Anwar Painter and
Gulsher, after recovery of all the dead
bodies of the deceased and each knife on
their pointing out from the house of
accused Anwar Painter and their disclosure
statement that they had hidden the dead
bodies of the deceased and knives, whereby
they killed deceased.

33. P.W.2, Krishna Nandan Tiwari,
Sub-Inspector,
has
proved
memo
of
recovery of two knives Exhibit.Ka.2.;
P.W.3, Mammu Khan, in his statement has
supported P.W.2 Krishna Nandan Tiwari,
Sub-Inspector to the effect that the
recovery of dead bodies of deceased and
each knief on the pointing out of the
accused Anwar Painter and Gulsher were
got recovered from separate places from
the house of accused Anwar Painter and
memo
of
recovery
Exhibit-ka.2
on
30.03.2010 was having been prepared and
signed by him and also by other witnesses.

34. P.W.3. states in his examinationin-chief that in his presence, at the instance
of both the accused, dead bodies of Sonu,
Smt. Aashma and Baby Choti were having
been retrieved from the gutter of the house
of Anwar Painter and on the pointing out of
both the accused, two knives were also
having been recovered from beneath the
bed in the room, and both the accused had
confessed that, they had assaulted the
deceased with knives and killed them.
Witness, P.W.3, Mammu Khan, is a
relative of accused Anwar Painter and Smt.
Aashma was his daughter who was married
to Sonu s/o Anwar Painter; accused were
known to him. He further deposes that at
the place situated 10 Km away from the
house of Anwar Painter on a call Gulsher
had reached at the house of Anwar Painter
on the date of recovery of dead bodies and
weapons of crime.

35. In the presence of P.W.3, Mammu
Khan, before the trial court, two pack of
sealed cloth were broke open and out of
these, two knives (chhuriya) were emerged
and
to
see
these
knives
(chhure),
P.W.3,Mammu Khan, identified them and
deposed that these weapons were having
been recovered at the instance both the
accused; the same had been sealed in his
presence by Sub-Inspector and in this
connection, memo of recovery of the
weapons by Sub-Inspector was having been
prepared and he had signed the memo; he
during his deposition also identified his
signature thereon and as such, knife
(chhuri) as material Exhibit-ka.3 was
marked and he in his statement has also
described it in details.

36. P.W.3, Mammu Khan, also
corroborates statement of P.W.1, Smt.
Salma who has stated that Anwar Painter
has married thrice; he denies the suggestion
that it would be wrong to say his daughter
was of bad character; he also denies that
after marriage of his daughter, she had
delivered a child within a span of three
months; he also refuted that old lover of
Aashma would often visit her house and
P.W.-3 Mammu Khan, also refuses that
Salma's son-in-law Sonu and Aashma
would often quarrel with each other; he
also denies that dead bodies of the deceased
were beyond identification or dead bodies
of the deceased had not got recovered in his
presence; he also states in his deposition
that knives also having been recovered in
his presence and the weapons were not
planted by the police.
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
187

37. P.W.3 also deposes that he has
seen the house of Anwar Painter before the
incident; once he had gone there; he further
says in his evidence that he knows the
difference between the chhuri and chaku;
two knives (chhuriya) during his deposition
in the trial court were laid before him and
he has categorically said in his deposition
that the assault weapons placed before him
were churies not knives.

38. The testimony of P.W.3, Mammu
Khan reflects that he was present on the
date of the recovery of dead bodies of the
deceased and churies (knives) from the
house of Anwar Painter were recovered and
he has also identified his signature on
memo of recovery of assault weapon; in his
statement he also has denied that being
relative of deceased, he has adduced
evidence. In his deposition there is minor
inconsistency
with
prosecution
story
because he has stated in his statement that
chhuri and knife are not same and one.

39. P.W.-3 in his cross-examination
says that he knows that Baby was the third
wife of Anwar Paniter. The suggestion put
on behalf of accused, P.W.3 Mammu Khan
has denied that the bodies of the deceased
had not been recovered in his presence; he
admits that bodies of the deceased had
decomposed,
however,
they
were
identifiable. He also denies the suggestion
put by the learned counsel that both
chhuries were planted by police; he also
denies that he is deposing against the
accused because Anwar Painter is his
friend.

40. The investigation of the instant
case was entrusted to I.O. on 17.01.2010
and he had recorded the statement of Smt.
Salma, and at her instance, he had prepared
the site plan of the alleged incident in his
writing;
he
had
also
recorded
the
statements
of
Ashok
Rajendera
and
Rahman during the investigation and had
come to know that informant and accused
Anwar Paniter and Baby with their family
members
were
living
somewhere
in
Bhaglpur in the State of Bihar; he admits in
his cross-examination that on his visit to
the house of Anwar Painter, it was found
locked and he had not broken the lock.

41. Another I.O. P.W.-4 Mool
Chandra Mutaina, S.I. in his examinationin-chief says that on information received
from the informer, he along with police
force reached at Bijli ghar (Electricity
House) which was being built at Fatehpur;
Anwar Paniter, who was a labour, was
apprehended from there; he was brought
back to police station and he had confessed
that he with his wife and other associate
Gulsher had killed his son, daughter-in-law
(wife of his son), grand-daughter and they
had thrown their dead-bodies into the gutter
of his house.

42. On the strength of statement of
co-accued Anwar Painter, name of his
associate, namely, Gulsher surfaced during
investigation.

43. P.W.-6 Desh Raj Mutaina, I.O.
further states that after confession of the
accused, they went to the house of Anwar
Painter to recover the deadbodies of the
deceased and also the assault weapons; in
respect of the alleged incident, he had
intimated
the
Additional
District
Magistrate-II, Sri D.P. Singh and S.P. City
Sri L. Kumar and Media persons and they
also reached there; both the accused
namely- Anwar Painter and Gulsher, in the
presence of Magistrate had made their
confession that they had killed three
persons and their dead-bodies were hidden
188 INDIAN LAW REPORTS ALLAHABAD SERIES
in the gutter, and on their pointing out all
three dead bodies were retrieved from the
gutter. Magistrate had conducted the
inquest over the bodies of the deceased and
after preparing the inquest reports, the
dead-bodies
of
the
deceased
were
forwarded with the copies of inquest
reports and other relevant documents to
mortuary for post-mortem to ascertain the
reason of their death. P.W. 6- during his
testimony has identified the memo and on
its proof, the same has been marked as Ex.
Ka-2. He also says that on the basis of
collected evidence Section 302 of IPC was
added.

44. P.W.-6 (I.O.) in his crossexamination says that crime weapons were
not placed before him; the arrest of both the
accused was entered into G.D. No.24 time
12:30 dated 30.03.2010. He also states in
his crossexamination that the copy of the
recovery memos was not given to the
accused-persons, but had got signed by
them. This witness denies that alleged
recovery was not made on the pointing out
of both the accused and falsely have been
planted.

45. P.W.-11 Aseem Chaudhari (C.O.)
states in his examination-in-chief that on
02.04.2010 he was posted as Circle Officer
at Police Station- Hari Parwat and in the
remaining investigation pertaining to Crime
No. 35 of 2010, under Sections 498-A,
304B, 302 and 201 of IPC and Section 3/4
of D.P. Act; he was partly involved and
statements of witnesses Prayag Singh and
Bheekam Singh, were recorded; At the
instance of witness Prayag Singh, he had
inspected the place of occurrence and in his
writing and signature had prepared a site
plan which is on record and he has also
identified the said site plan. The same was
marked as Ex. Ka 30. He has also deposed
that he had recorded the statements of other
witnesses and on the basis of collection of
ample evidence against accused- Anwar
Painter, Gulsher and another, he submitted
the challan in his writing and signature to
the court concerned.

46. P.W.-11 Aseem Chaudhari
(C.O) in his cross-examination reiterates
that at the instance of witness Prayag
Singh, he has prepared the site plan and
also recorded the statements of Bheekam
Singh, Raju, Rajpal and others but none
of
the
witnesses
claimed
to
have
witnessed the commission of incident. He
has also given details of the dead-bodies,
the place of the occurrence and says that
he had also recorded the statement of
informant Salma on 20.04.2010. He
further states that he had not met Anwar
Painter and Gulsher. He states that he had
recorded the statements of witnesses and
admits that the recovery of assault
weapons and deadbodies of the deceased
were not made in his presence. He further
admits that the statements of the neighbor
of accused Gulsher were not recorded by
him. Next he denies the suggestion to the
effect
that
he
did
not
make
any
investigation and the said papers were
having been prepared in his office.

47. P.W.-1, Smt. Salma about the
allegation in her written F.I.R. dated
08.01.2010 Exhibit-ka.1 has deposed that
since one month, she was visiting the
residence of her son-in-law Sonu but did
not find any one; neighbours apprised her
that inmates of the house had left their
house at unknown place, although, she also
inquired from Smt. Sarvari and Attu, elder
brother of father-in-law of her daughter.
She also met Anwar to know whereabout of
her daughter who told her that he along
with others had killed her and Sonu.
11 All. Mohammad Anwar & Anr. Vs. State of U.P.
189

48. Anwar Painter, Baby left their
house at P.P. Nagar, Agra for undisclosed
place. Accused, Anwar Painter, stated in
his statement recorded 313 Cr.P.C. on
12.02.2022 that he with his wife had left
his house for his matrimonial house in
Bihar one year before the incident. Smt.
Baby, in her statement under Section 313
Cr.P.C. stated that she was third wife of
Anwar Painter, Sonu was son of first wife
of Accused Painter. As such, it is also
admitted to accused that Smt. Baby was the
third wife of accused Anwar Painter and
she was step mother of Sonu.

49. D.W.-1, in his examination-in-chief,
deposed that Anwar Painter and his wife Baby
in the Year 2009 had left their house in
District-Agra
for Bahagalpur
in Bihar.
Statement of D.W.-1 Amit Chauhan was
recorded in the trial court on 18.01.2013.
Thus, evidence of D.W.1, Amit Chauhan
lends credence to statements of accused under
Section 313 Cr.P.C. that Anwar Painter with
his family had left his house in the Agra
district for his matrimonial house to earn
livelihood. Admittedly, he is a labour and poor
man. There is no evidence on record to show
the exact time of departure of the Anwar
family for Bihar, but since retrieved bodies by
the time of their recovery had decomposed, it
appears that substantial period of time had
passed. But, it has no adverse bearing on the
merits of this case.

50. From the condition of the highly
decomposed bodies, P.W.9, Dr. A.K.
Mishra, has opined in his examination-inchief that death of deceased Sonu was
caused approximately three months before
the post mortem which was conducted on
01.04.2010.

51. P.W.5, Dr. A.K. Upadhaya, who
has also conducted autopsy on the bodies of
the deceased Smt. Aashma & Baby Choti
has not deposed about the approximate
time of their death but it appears that all
three deceased Sonu, Smt. Aashma and
Baby Choti were killed in one incident.

52. It also emerges that all the bodies,
at the instance of accused Anwar Painter
and Gulsher and two knives were recovered
from gutter and from beneath of the bed in
the room of the house owned by accused
Anwar Painter on 30.03.2010.

53. P.W.3- Mammu Khan has
deposed in his chief examination that on
the pointing out of accused Anwar Painter
and Gulsher chhuri/chhura each was
recovered. This witness in his crossexamination done on behalf of co-accused
Gulsher has also repeated his evidence with
regard to the recovery of two chhuri.

54. P.W.7 Shayam Bahadur Mutaina
has stated in his examination done on
behalf of Anwar Painter that recovered
weapons of crime were brought and got
received to him in each sealed bag; there
was separate knife (chhura). He has also
stated that there is difference between
chhura and knife but in the recovery of
memo, knives (chhura) were having been
noted.

55. It emerges from the evidence
P.W.3-Mammu
Khan
that
there
is
consistent evidence in respect of the
recovery chhura each at the instance
accused Anwar Painter and Gulsher. Before
the learned trial court, it was contended on
behalf of accused that there is contradictory
evidence with regard to weapon of offence
because on the one hand; chhuri each is
stated to have been recovered; On the other
hand, there is evidence on record to the
effect that chhuri as well as knife on the
190 INDIAN LAW REPORTS ALLAHABAD SERIES
pointing out of both the accused were
having been recovered. In our opinion,
there is evidence on record that chhura each
was having been recovered at the instance
of Anwar Painter and Gulsher. On the face
value of contention put forth by the learned
counsel before the learned trial court is
accepted even then the evidence pertaining
to the recovery of weapons, minor
difference is found but all evidence has to
be read in totality, as such, recovery of
chhura each on the pointing out of accused
Gulsher and Anwar Painter has been
successfully proved by the prosecution.

56. D.W.2, Krishna Nandan Tiwari,
S.I., I.O. has deposed that upon recovery of
the bodies of deceased, he had prepared in
his writing inquest reports and three bodies
of the deceased were sealed separately in
the pieces of cloth and the other related
papers in this respect were also having been
prepared.

57. P.W.2, Krishna Kant Tiwari, has
admitted in his cross examination that
inquest reports and other related papers
were prepared at the dictation of A.C.M.-II,
who also was present there at the time of
panchayatnama of bodies of the deceased.
He also admits that he was familiar with
the writing and signature of A.C.M., D.V.
Singh, because they were posted in the
same District Agra and in the discharge of
his official duty, he would off and on met
him.

58. P.W.,3 Mammu Khan deposed in
his statement about the inquest reports of
having been prepared in his presence by
police. The learned trail court in the
impugned
judgement
and
order
has
discussed in detail evidence of P.W.1-Smt.
Salma, P.W.-2, Krishna Nandan Tiwari,
P.W.11 Assem Chaudhari, I.O., and has
also thoroughly evaluated all the evidence,
including D.W.1 Amit Chauhan on record.

59. The learned trial court Judge has
rightly opined that in view of the facts and
circumstances of the instant case, time of
death of all the three deceased cannot be
ascertained. The learned lower court has
also opined on the strength of the evidence
on record that offences under Sections498A, 304-B read with Section 34 I.P.C. and
Section 3⁄4 Dowry Prohibition Act, against
Smt. Baby and also offences under Sections
498- A, 304-B read with 34 I.P.C. and
Section 3⁄4 Dowry Prohibition Act, against
Anwar Painter, his wife Smt. Baby and
Gulsher were not proved hence, their
acquittal has been recorded.

60.