# Mohd. Afzal @ Guddu & Anr v. State of U.P

- **Citation:** (2022) 2 ILRA 117
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-21
- **Case number:** Criminal Appeal No. 6167 of 2010
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-afzal-guddu-anr-v-state-of-u-p-48092
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34 - Arms Act, 1959 -
Sections 25 & 27, - Code of Criminal
Procedure, 1973 - Sections 161 & 313 - UP
Gangsters
and
Anti
Social
Activities
(Prevention) Act, 1986 - Sections - 2 & 3 -
Indian Evidence Act, 1872 - Section 33 -
Offence of Murder - Circumstantial Evidence -
Examination of witnesses -incident took place in
the intervening night about 03:00 AM when
deceased was sleeping baithak - accused
118 INDIAN LAW REPORTS ALLAHABAD SERIES
person not named in the FIR but name of
appellants came in the light through evidence of
chance witnesses - no any direct evidence or
eye witnesses regarding involvement of the
accused appellants - chain of circumstantial
evidence not completed and are not fully
reliable on aforesaid reasons so as to believe
that appellants could be only perpetrators of
crime thus prosecution has failed to prove
motive beyond all reasonable doubts - Accused
appellants are entitled to be benefit of doubt.
(Para - 25, 30, 32, 38, 39)

Appeal allowed, impugned judgment &
order of Session Trial court is set aside. (E11)

List of Cases cited:

## Text

2 All. Mohd. Afzal @ Guddu & Anr. Vs. State of U.P.
117
reaction would be to check the spot from
where they had emerged. Admittedly,
according to the prosecution evidence, the
body was not dragged deep into the
standing crop and would have been visible
from the Pagdandi. Hence, PW-3 could
have easily spotted the body if he had been
curious as would be the natural reaction
under the circumstances. Thus, in our view,
Abdul Wahid (PW-3) fails to inspire our
confidence and his testimony is not worthy
enough to lend credence to the eye witness
account rendered by PW-2.

59. The upshot of the discussion made
above, it appears to us that there was grave
enmity between Sheikh Mohd. Naqi
(deceased) and co-accused Ram Awadh and
Ram Kripal, therefore, accused including
the surviving appellant no.1 (Gulab) were
implicated. Though, we are conscious of
the law that merely on ground of enmity,
the testimony of an eye witness cannot be
discarded, if there is a ring of truth about it,
but, in the present case, the entire
prosecution case rests solely on the
testimony of Nurul Islam (PW-2) who we
find not wholly reliable. Therefore, in our
considered view, the prosecution has failed
to prove its case against the surviving
appellant (Gulab) beyond reasonable doubt.

60. Consequently, the appeal is
allowed. The judgment and order of
conviction as well as sentence recorded by
the trial court vide order dated 10.09.1985
passed
by
Special
Judge/Additional
Sessions Judge, Allahabad in Sessions Trial
No. 43 of 1981, under Sections 302/34 IPC
as against the surviving appellant (Gulab)
is set aside. The appellant (Gulab) is
acquitted of all the charges for which he
has been tried. The appellant no.1 (Gulab)
is reported to be on bail. He need not
surrender,
subject
to
compliance
of
provisions of Section 437-A Cr.P.C. to the
satisfaction of the trial court concerned at
the earliest.

61. Let a copy of this order/judgment
and the original record of the lower court
be transmitted to the trial court concerned
forthwith for necessary information and
compliance. The office is further directed to
enter the judgment in compliance register
maintained for the purpose of the Court.
----------
(2022)02ILR A117
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 6167 of 2010

Mohd. Afzal @ Guddu & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.M.G. Asghar, Sri C.P. Mishra, Sri D.K.
Mishra, Sri M.S. Akhtar, Sri Mewa Lal
Shukla, Sri Mohd. Israr, Sri O.P. Mishra, Sri
Prahlad Kumar Khare, Sri V.M. Zaidi

Counsel for the Respondent:
A.G.A., Sri I.M. Khan, Sri S.A. Imam, Sri
Deepankar Chaudhary

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34 - Arms Act, 1959 -
Sections 25 & 27, - Code of Criminal
Procedure, 1973 - Sections 161 & 313 - UP
Gangsters
and
Anti
Social
Activities
(Prevention) Act, 1986 - Sections - 2 & 3 -
Indian Evidence Act, 1872 - Section 33 -
Offence of Murder - Circumstantial Evidence -
Examination of witnesses -incident took place in
the intervening night about 03:00 AM when
deceased was sleeping baithak - accused
118 INDIAN LAW REPORTS ALLAHABAD SERIES
person not named in the FIR but name of
appellants came in the light through evidence of
chance witnesses - no any direct evidence or
eye witnesses regarding involvement of the
accused appellants - chain of circumstantial
evidence not completed and are not fully
reliable on aforesaid reasons so as to believe
that appellants could be only perpetrators of
crime thus prosecution has failed to prove
motive beyond all reasonable doubts - Accused
appellants are entitled to be benefit of doubt.
(Para - 25, 30, 32, 38, 39)

Appeal allowed, impugned judgment &
order of Session Trial court is set aside. (E11)

List of Cases cited:

1. Surinder Kumar Vs St. of Har. (2011 Vol. 10
SCC 173)

2. St. of H.P. Vs Gian Chand (2001 Vol. 6 SCC 7)

3. Anjan Kumar Sharma Vs St. of Assam (2017
vol. 14 SCC 359)

4. Sharad Birdhi Chand Sarda Vs St. of Mah.
(1984 Vol. 4 SCC 116)

(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Heard Sri Mewa Lal Shukla,
learned counsel for the appellants, Sri A.N.
Mulla, Additional Government Advocate
on behalf of the State and perused the
material on record.

2. The appellants have preferred the
present criminal appeal aggrieved by the
judgment and order dated 04.09.2010
passed by the learned Special Judge
(Gangster Act)/ Additional Sessions Judge,
Court No.5, Bulandshahr in Special Trial
No. 683/2007, under Section 302/34 IPC,
State vs. Mohd. Afzal @ Guddu and others,
Police
Station
Gulawadi,
District
Bulandshahr, convicting and sentencing the
appellants to undergo life imprisonment
under Section 302/34 of IPC with a fine of
Rs.10,000/- each, in default thereof, to
undergo three months additional rigorous
imprisonment.

3. The prosecution case is as follows:

4. The deceased Shafaqat Ali was
sleeping in his baithak situated in the
Village Chandpur, P.S. Gulawadi, District
Bulandshahr in the intervening night of 311/1-2-2007. At about 3:00 am, on the basis
of hearing the gun shot fire and hue and cry
the neighbours reached on the spot and
found that the father of the first informant
Shafaqat Ali received a gun shot injury,
complainant immediately rushed to him
and proceeded to the District Hospital for
treatment along with his brother Hasmat
and his uncle Shahid and Rahat but he has
succumbed to death in the way.

5. On the basis of the written report, the
police registered a case as Crime No.30/2007,
under Section 302 IPC and entry about
registration of the case was made in the
General Diary on 01.02.2007. Investigation of
the case was taken over by the Sub-Inspector
Samay Singh. He rushed to the spot and
recorded the statement of the complainant
Mukeet Ali and prepared the site plan.

6.

During
investigation,
the
Investigating
Officer
recorded
the
statements
of
the
witnesses.
After
completing all formalities of investigation,
he submitted the charge sheet (Exhibit Ka16) against the appellants in the Court of
Special Judge (Gangster Act), Bulandshahr,
under Section 302 IPC and cognizance of
offence was taken by the Court concerned.

7. Charge under Section 302/34 IPC
and section 2/3 of Uttar Pradesh Gangsters
2 All. Mohd. Afzal @ Guddu & Anr. Vs. State of U.P.
119
and Anti Social Activities (Prevention) Act,
1986 was framed by the Special Judge on
01.07.2008.

8. Charge sheet against Mohd. Afzal
under Section 25/27 of Arms Act has been
submitted before Chief Judicial Magistrate,
Bulandshahr, cognizance taken by the
Magistrate concerned, committed to the
Court of Sessions Judge and thereafter
transferred to the Court of Special Judge,
(Gangster Act).

9. Charge under Section 25/27 of
Arms Act has been framed against the
accused Mohd. Afzal on 01.07.2008 by
Special
Judge,
(Gangster
Act),
Bulandshahr.
The
accused-appellants
pleaded not guilty and claimed to be tried.
Special
Trial
No.639/2007
was
consolidated and tried together with leading
file Special Case No.683 of 2007.

10. In order to prove the charges
framed
against
the
appellants,
the
prosecution has examined the complainant
Mukeet Ali, son of the deceased (P.W.-1),
Wahid Ali, the brother of the deceased
(P.W.-2), Dr. B.P.S. Kalyani (P.W.-3),
Munfat Ali (P.W.-4), Shyam Singh, Sub
Inspector Reader (P.W.-5), Dariyab Singh
(P.W.-6), Harish Chand Josi (P.W.-7), Sub
Inspector Samay Singh (P.W.-8), Sub
Inspector Ashok Kumar (P.W.-9) and Sub
Inspector Kunwar Singh (P.W.-10).

11. In documentary evidence, the
prosecution has proved written report
(Exhibit Ka-1), chik FIR (Exhibit Ka-2),
gang chart (Exhibit Ka-9), spot map
(Exhibit Ka-4), recovery memo (Exhibits
Ka-5 and Ka-6), post mortem (Exhibit Ka3), panchayatnama (Exhibit Ka-15), photo
naash (Exhibit Ka-19), letter of R.I.
(Exhibit Ka-15), letter of CMO (Exhibit
Ka-17) sample seal (Exhibit Ka-18), charge
sheet under section 302 IPC (Exhibits Ka13 and Ka-14), recovery memo under
Section 25 of Arms Act (Exhibit ka-7), chik
FIR under Section 25 of Arms Act (Exhibit
Ka-8), spot map under Section 25 of Arms
Act (Exhibit Ka-2) general diary (Exhibit
Ka-14), prosecution sanction (Exhibit Ka22), charge sheet under section 25 of Arms
Act (Exhibit Ka-21).

12. In the statement recorded under
Section 313 Cr.P.C., the accused appellants
have stated that they have been falsely
implicated in the present case due to enmity
of Pradhani and recovery was false and in
defence no evidence has been adduced by
the accused.

13.

Eye
witness
P.W.-1,
the
complainant Mukeet Ali, son of the
deceased, who is an Advocate has stated in
his
examination-in-chief
that
in
the
intervening night of 31.01./01.02 of 2007, I
was sleeping at my home and my father
Safaqat Ali was sleeping alone in his
baithak. At about 3:00 am, sound of fire
arm was heard. On this, neighbourers and I
alongwith others reached the baithak and
saw that there was a big wound on the head
of my father and blood was oozing out. I
alongwith my brother Hasmat, uncle
Shahid, Rahat took out father to the District
Hospital for treatment but near Village
Jainpur, my father died. We returned to our
home with the dead body of my father and
saw that near the cot of my father, there
was a piece of paper, in which something
was written regarding murder of my father
with intent to misguide us. This piece of
paper is proved as material Exhibit-1. I
have handed over this piece of paper to the
Investigating Officer. I wrote a report
myself. After panchayatnama and post
mortem, the police handed over the dead
120 INDIAN LAW REPORTS ALLAHABAD SERIES
body of my father to me for cremation. In
the meantime, Parvez, Wahid and my
brother Hasmat told me that Mohd. Afzaal,
who is a jhola chaap doctor, used to
practice near my baithak. Wife of Rahat Ali
was ill and Afzal used to visit the house of
my uncle for treatment. Afzal used to tease
Sultana, the daughter of Rahat Ali. My
father opposed this. Accused Iqbal, brother
of Afzal is a criminal and both threatened
my father prior to the incident and also
threatened to kill him. We have not taken
this threatening seriously. Pravez also told
me that on 31.01/01.02 of 2007, in the
intervening night, he was going to the
house of Master Niaz Mohd. He saw that
Afzal and Iqbal were coming from my
baithak, Afzal had taken a country made
pistol in his hand and both were full of fear.
He asked them to stop but they had not
given any reply. Munfat Ali also told me
that in the night, he had gone for urinal,
then he saw Iqbal and Afzal going towards
the baithak of informant. Afzal took out
country made pistol and both murdered
Parvez. He had seen them at the place of
occurrence in committing the murder of my
father. Parvez has given statement before
the police but Parvez was murdered on
06.02.2007.

14. P.W.-2 Wahid Ali, brother of the
deceased had deposed on oath that his
brother Safakat Ali was sleeping in his
baithak. In front of his baithak, Afzal used
to practice in his clinic. Rahat Ali is my
younger brother and wife of Rahat Ali was
ill and for treatment of wife of Rahat Ali,
Afzal used to visit at his residence. Rahat
Ali has a daughter, aged about 22 years.
Afzal used to tease her. Shafaqat intervened
in this matter. About 3 to 4 days prior to the
incident, Shafaqat Ali threatened Afzal and
there were hot talk between them. Afzal
and his brother Iqbal threatened to kill
Shafaqat Ali but we have not taken this
threatening seriously and for this reason,
accused committed the murder of my
brother Shafaqat Ali.

15. P.W.-3 Doctor V.P.S. Kalyani had
conduced the post mortem of the deceased
Shafaqat Ali on 01.02.2007 at 3:10 pm. As
per the opinion of the Doctor, the
possibility of death of the deceased was
about half of a day prior to the date of
postmortem. The deceased was of normal
stature and his eyes and mouth was closed.
After death of the deceased, stiffness was
present on the body of the deceased. On
internal examination of the deceased, the
doctor opined that the deceased died due to
shock and haemorrhage due to ante mortem
injuries.

16. Following ante-mortem injuries
were found on the body of the deceased:

"1. Fire arm wound of entry 10
cm x 4 cm, brain cavity deep on right head
5 cm above from right ear. B/T not present
margin inverted bones under found badly
fractured.

2. Contused swelling 3 cm x 1.5
cm on right eye.

3. Multiple fire arm wounds in an
area 8 cm x 4 cm on back of inner aspect of
right fire arm middle part margins of all
wounds are inverted.

Blackening and tattooing present
in an area 10 cm x 5 cm around the wounds
on exploration. 8 small pellets recovered
from wounds. Sizes of wounds vary from 05
cm x 3 cm to 03 cm x 02 cm."

17. P.W.-4 Munfat Ali had deposed on
oath that I know accused Afzal and Iqbal.
Afzal had relation with the daughter of
Rahat Ali. Shafaqat Ali was elder brother of
Rahat Ali. There was hot talk prior to four
2 All. Mohd. Afzal @ Guddu & Anr. Vs. State of U.P.
121
days from the date of incident among
Afzal, Shafaqat Ali and Iqbal Ali. Both
threatened to Safaqat Ali to kill. On
31.01/01.02 of 2007 at about 12:00 pm, I
was doing urinal out of my house, I saw in
the light of torch and bulb that Afzal and
Iqbal were coming towards baithak of
Safaqat Ali. I identified them. Afzal had
taken a country made pistol in his hand.
Thereafter I slept. In the morning it came to
my notice that Safaqat Ali was murdered. I
have full confidence that Afzal and Iqbal
had committed the murder of Safaqat Ali.

18. P.W.-5 S.I. Shyam, a formal
witness, has proved chik FIR (Exhibit Ka2), he was the Investigating Officer of the
case. He had prepared spot map and proved
it as Exhibit Ka-4. He had also proved
recovery memo of blood stained and simple
earth as Exhibits Ka-5 and Ka-6. He had
also proved the statement of Pravez as
Exhibit Ka-6. This witness also proved
recovery memo of ala-katal country made
pistol, cartridges and recovery memo as
Exhibit Ka-6.

19. P.W.-6, Constable Dariyab Singh
had proved chik FIR as Exhibit Ka-2 and
General Diary as Exhibit Ka-10 and on the
basis of gang chart section 2/3 of Uttar
Pradesh
Gangsters
and
Anti
Social
Activities (Prevention) Act, 1986 has been
added in the general diary, which is proved
as Exhibit Ka-11.

20. P.W.-7 Harish Chandra Joshi,
Investigating Officer of the case had filed
the charge sheet, which is proved as Exhibit
Ka-12.

21. P.W.-8 S.I. Samay Singh was also
part of the investigation of the case and he
had also filed charge sheet against Iqbal
and proved it as Exhibit Ka-14.

22. P.W.-9 S.I. Ashok Kumar had
prepared panchayatnama and proved it as
Exhibit Ka-15. He also prepared recovery
memo of spot stained and simple earth and
proved them as Exhibits Ka-5 and Ka-6.
This witness also proved letter of R.I. and
letter of C.M.O., sample seal, challan laash
and photo naash as Exhibit Ka-6. He also
proved bundle (pulinda) as material Exhibit
Ka-1, country made pistol as material
Exhibit Ka-2, cartridges as material Exhibit
Ka-3, empty cartridges as material Exhibit
Ka-4 and polythin as material Exhibit Ka-5
and report of the FSL as material Exhibit
Ka-6.

23. P.W.-10 S.I. Kunwar Singh, the
Investigating Officer of the case filed
charge sheet under Section 25/27 of Arms
Act. He prepared spot map of the recovery
and proved it as Exhibit Ka-20 and proved
the charge sheet as Exhibit Ka-21. He has
also proved prosecution sanction as Exhibit
Ka-22.

24. So far as the FIR is concerned, as
per the prosecution case, the incident took
place in the intervening night of 31.1/01.02
of 2007. FIR was lodged on 01.02.2007 at
10:00 am. Police Station is about 10 km far
from
the
place
of
the
occurrence.
Complainant is an Advocate, he tried his
best for the treatment of his father but on
the way, he died. He alongwith other
returned back to the home and FIR was
lodged after seven hours from the time of
the incident against unknown accused. It
means that at the time of lodging of the
FIR, entire facts were not in the knowledge
of the complainant. The complainant has no
suspicion against the accused at the time of
lodging of the FIR. Thus from the facts and
circumstances, it is clear that FIR has been
lodged promptly without consultation and
the complainant had full opportunity to
122 INDIAN LAW REPORTS ALLAHABAD SERIES
name the accused at the time of the lodging
of the FIR but has not done so, which
shows his bona fide.

25. There is no direct ocular evidence
regarding the involvement of the accused
appellants in the crime. The case of the
prosecution is on the basis of circumstantial
evidence. Factors has to be taken into
account in adjudication of cases on
circumstantial evidence as laid down by the
Apex Court in Anjan Kumar Sharma vs.
State of Assam (2017 14 SCC 359) and in
Sharad Birdhi Chand Sarda vs. State of
Maharashtra, 1984 (4) SCC 116.

26. Five golden principles as laid
down in the case of Sharad Birdhi Chand
Sarda (Supra), are as follows:

"(1)
the
circumstances
from
which the conclusion of guilt is to be drawn
should be fully established:

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical
but
a
legal
distinction
between "may be proved" and "must" be or
should be proved" as was held by this
Court in Shivaji Sahabrao Bobade and
another vs. State of Maharashtra 1973 2
SCC 793 where the observations were
made :

(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) 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."

27. The first circumstance relied by
the trial Court is that accused Afzal is a
jhola chaap doctor. His shop is in front of
baithak of Shafaqat Ali. Rahat Ali is the
brother of the deceased. His wife was ill
and accused Afzal used to tease Sultana,
daughter of Rahat Ali. Shafaqat Ali
opposed
this.
There
was
altercation
between Afzal and deceased Shafaqat Ali,
prior four days of the incident. Afzal
threatened Shafaqat Ali to kill him. It
relates to motive.

28. It is a case of a circumstantial
evidence. There is no eye witness of the
alleged incident. Later on, prosecution had
developed a motive for the incident that
Afzal was a jhola chhap doctor and was
treating the wife of Rahat Ali. Rahat Ali has
a daughter, named Sultana aged about 22
years old and with her he developed a
relationship or he began to tease Sultana as
stated by P.W.-2 and P.W.-4 but no report
regarding teasing Sultana has been filed by
her father, Rahat Ali, his wife and his
daughter against the appellant accused
Afzal. Rahat Ali, his wife and his daughter
Sultana are the best witnesses for proving
the motive but the prosecution had not
examined any of them to prove the motive.
Thus, in the absence of best witnesses, it
will be deemed that prosecution had failed
to prove the motive of the incident. It is
also alleged that there was hot talk between
Safaqat Ali and Afzal prior to 4 days from
the incident in which Afzal Ali had
threatened Safaqat Ali to kill but no FIR
has been lodged on this aspect and even
this fact has not come in the knowledge of
the complainant at the time of the lodging
of the FIR. Although, he was advocate. It is
2 All. Mohd. Afzal @ Guddu & Anr. Vs. State of U.P.
123
very common that in the night when
Advocate was present in the home, such
sort
of
threatening
incident,
would
normally be communicated to him but the
threatening by the accused to father of the
complainant is not in the knowledge of the
complainant, which also shows that there
was no threatening and no teasing by the
accused
appellants.
In
case
of
circumstantial evidence, the motive plays a
very important role.

29. It is also pertinent to mention here
that in the statement recorded under
Section 161 Cr.P.C., the complainant had
also not given such statement that accused
Afzal has an illicit relationship with
Sultana and also not stated that Munfat Ali
and Parvez had told about this. This fact
has not been told by him that accused has
given threatening to kill Safaqat Ali prior
four days from the date of incident. This
fact was stated in the statement of
Investigating Officer P.W.-5 at page-8 in
his cross-examination. The factum of the
motive has not been stated in the written
report.

30. It is also stated that the
complainant generally lives in the city and
occasionally lives in the village so he was
not aware of the motive. This submission is
not tenable because the appellant Afzal is
an Advocate and he is much aware about
his family and village. Thus, the evidence
on the point of motive by P.W.-1 is an
improvement on the basis of evidence of
P.W.-2 and P.W.-4, whereas the best witness
of motive has not been produced. Although,
they were present and also closely related
to the complainant. This fact will be against
the prosecution. Thus, the prosecution has
failed
to
prove
motive
beyond
all
reasonable doubt against the accused
appellants. Thus, the first circumstance
relied upon by the trial Court is not proved.

31. The second circumstance is that
Mohd. Pravez at about 3:00 to 4:00 am in
the night was going at the house of Master
Niaz and he saw that Afzal and his brother
Iqbal was coming with fast paces with fear
in mind. Afzal was carrying a country made
pistol in his hand. It is submitted that
statement of Pravez has been recorded by
the Investigating Officer on 03.02.2007.
Thereafter the accused persons killed
Parvez. Parvez also told the complainant
about this fact that he saw accused persons
going in fast paces after the incident and
Afzal was carrying a country made pistol in
his hand. The Investigating Officer also
proved the statement of Parvez recorded
under section 161 Cr.P.C. as Exhibit Ka-6
but Parvez has not told this fact to the
complainant before lodging of the FIR. The
name of Parvez has not been shown as a
witness in the FIR. The trial Court had
relied on the statement of Parvez, which is
in Exhibit Ka-06 with the help of Section
33 of Indian Evidence Act.

32. Section 33 of Indian Evidence
Act, reads as under:

"Evidence given by a witness in a
judicial proceeding, or before any person
authorized by law to take it,is relevant for the
purpose of proving, in a subsequent judicial
proceeding, or in a later stage of the same
judicial proceeding, the truth of the facts
which is states, when the witness is dead of
cannot be found, or is incapable of giving
evidence, or is kept out of the way by the
adverse party, or if his present cannot be
obtained without an amount of delay or
expense which, under the circumstances of
the case, the Court considers unreasonable:
124 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided - that the proceeding
was between the same parties or their
representatives in interest;

that the adverse party in the first
proceeding had the right and opportunity to
cross-examine;

that the questions in issue were
substantially the same in the first as in the
second proceeding.

Explanation - A criminal trial or
inquiry shall be deemed to be a proceeding
between the prosecutor and the accused
within the meaning of this section."

33. It is crystal clear in the catena of
judgement that statement of the witness
recorded under Section 161 Cr.P.C. does
not fall within the ambit of evidence. Such
evidence is only for confrontation in crossexamination. The statement of witness
recorded under Section 161 Cr.P.C., being
wholly, inadmissible in evidence, cannot be
taken into consideration. An investigation
is not a judicial proceeding. Opportunity to
cross-examine the chance witness Parvez
has not been given to the accused. There
are not two proceedings between same the
parties in this case and no question that
issues were substantially the same in the
first as in the second proceeding. Witness
Parvez is not an injured persons or a
complainant, so his statement has no
relevance
in
the
present
facts
and
circumstances of the case. The incident
took place in the season of winter at about
3:00 to 4:00 am and for what purpose,
chance witness Parvez was going at the
house of Master Niaz Mohd, is not
disclosed by this witness in the statement
recorded under Section 161 Cr.P.C.. To
prove this fact, Master Niaz Mohd. should
have been examined but he has not been
examined. Thus, the statement of Parvez
recorded under Section 161 Cr.P.C. is not
relevant or admissible under Section 33 of
Indian Evidence Act. Thus, the second
circumstance relied by prosecution, is also
not proved.

34. The third circumstance is that
P.W.-4 Munfat Ali, awoke for urinal and
went out of his house at about 12:00 to 1:00
pm and saw that Afzal and Iqbal were
going towards baithak of Safaqat Ali. Afzal
was carrying a country made pistol in his
hand. He saw them in the light of torch and
bulb. But in the cross-examination, this
witness has stated that I had not told about
bulb light to the Investigating Officer and
also not produced the torch to the
Investigating Officer and also told that my
house is 100 meters far from the baithak of
Safaqat Ali. House of Abrar Khan and Abid
Khan is between my house and baithak of
Safaqat Ali. This witness has deposed that
there was a country made pistol in the hand
of Afzal. This statement is not reliable
because generally while committing the
crime, the accused does not show the
incriminating weapons to persons 100
meters away from the place of offence. He
will naturally hide the weapon in his
clothes. It is also not probable that after
committing the crime, the accused left the
place of occurrence at 3:00 am, brandishing
country made pistol in his hands, as stated
by Parvez. Thus, the statement of this
witness has no relevance who is simply a
chance
witness.
Thus,
the
third
circumstance is not also tenable.

35. The last circumstance is that
incriminating weapon country made pistol
12 bore, empty cartridges and one live
cartridge have been recovered on the
pointing out of the accused Afzal. The trial
Court has not relied on this point and
disbelieved the recovery from the accused
Afzal under Section 27 of the Indian
Evidence Act.
2 All. Mohd. Afzal @ Guddu & Anr. Vs. State of U.P.
125

36.

In
cross-examination,
the
complainant P.W.-1 has stated that Parvez
and Munfat Ali told everything in the
evening of the date of the incident. What
Munfat and Pravez told me, I narrated all
the facts to the Investigating Officer but if
all the facts has not been mentioned in my
statement, I could not tell the reason.

37. Contrary to this, P.W.-4 Munfat
Ali had deposed in his cross-examination
that I told about the incident to Mukeet Ali
after third day of the incident, after azalmazal (a muslim ritual). He had not shown
the torch to the Investigating Officer. There
was no report with regard to the hot talk
between Shafaqat Ali and accused. Thus,
there is contradictions in the evidence of
above two witnesses. Evidence of P.W.-1 is
not corroborated by the evidence of P.W.-4.
A parcha has also been annexed with the
FIR in which it has been stated that
"Shafaqat Ali used to complain about me
with my uncle at his baithak, so I planned
the murder by giving Rs. 2 lakhs to the out
sider criminals. Wakeel and Niaz Mohd.
would be murdered by out sider criminals
for which, I shall pay Rs. 4 lakhs but the
date of death is not soon. I have relation
with criminals who belongs to Lucknow."
This piece of paper was found under the
quilt of deceased. For this piece of paper,
P.W.-1 has stated that this paper has been
given
with
intent
to
misguide
the
investigation. This paper is proved by P.W.-
1 but it has no relevance with the present
murder. P.W.-1 has not shown the names of
Babbar, Anwar, Abid and Liyaqat in the
FIR, who reached on the spot.

38. The accused had stated in their
statements recorded under section 313
Cr.P.C. that they have been falsely
implicated in the present case due to
election of Pradhani. Shanawaz won the
election.
Hasmat,
complainant
had
threatened for dire consequence. Due to
that enmity, accused has been falsely roped.
No witness has been examined to prove the
said defence of the accused.

39. No doubt the death of the
deceased Shafaqat Ali took place in a most
unfortunate manner by fire arm head injury,
but that itself is not sufficient. The
prosecution
has
to
establish
beyond
reasonable doubt person being prosecuted
is guilty of the crime. From the evidence on
record, it is apparent that appellants are not
named in the FIR but the name of the
appellants came in light through the
evidence of chance witnesses. The evidence
of P.W.-1, P.W.-2 and P.W.-4 is not fully
reliable on the aforesaid reasons. Their
evidence would not lead us to believe that
appellants could be only perpetrators of
crime. The chain of circumstantial evidence
is not complete and do not lead to the
conclusion that in all human probability,
the murder must have been committed by
the appellants only. Thus, prosecution has
failed to prove its case beyond all
reasonable doubts that accused Afzal @
Guddu and Iqbal had committed the murder
of Shafaqat Ali at the time, place and in the
manner as alleged by the prosecution. It
would indeed be unsafe to convict the
appellants based on the testimony of
circumstantial
evidence.
They
would
certainly be entitled to be benefit of doubt
which is created by the very circumstances
which we have referred.

40. Appellants Afzal @ Guddu and
Iqbal are acquitted by the trial Court for the
charge under Section 3 (1) of Uttar Pradesh
Gangsters and Anti Social Activities
(Prevention), Act. Accused Afzal @ Guddu
is also acquitted under Section 25/27 of
Arms Act by the trial Court.
126 INDIAN LAW REPORTS ALLAHABAD SERIES

41. For the aforementioned reasons,
the appeal is allowed and the judgment
and order dated 04.09.2010 passed by the
learned Special Judge (Gangster Act)/
Additional Sessions Judge, Court No.5,
Bulandshahr
in
Special
Trial
No.
683/2007, under Section 302/34 IPC,
State vs. Mohd. Afzal @ Guddu and
others, Police Station Gulawadi, District
Bulandshahr
for
convicting
and
sentencing the appellants to undergo life
imprisonment under Section 302/34 of
IPC, is hereby set-aside.

42. The appellants Afzal @ Guddu
and Iqbal are acquitted for the charges
under Section 302/34 IPC. They shall be
set at liberty forthwith, if not required in
any other case.

43. Office is directed to send copy
of this judgment alongwith original
record to the Court concerned for
necessary action and compliance in
accordance with law.
----------
(2022)02ILR A126
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2021

BEFORE

THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 7220 of 2019

Ajay Singh Chauhan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ram Vishal Mishra, Sri Bala Nath
Mishra, Sri Sanjay Kumar Singh

Counsel for the Respondent:
A.G.A., Sri Purushottam Mani Tripathi
Criminal Law - Indian Penal Code,1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Sections - 2, 3 &
4, Criminal Procedure Code, 1973
-
Section 313 - Indian Evidence Act, 1872 -
Section - 113 B - Appeal against conviction -
Examination of accused - Demand of dowry -
Daughter of informant was married to accusedappellant - After marriage accused-appellant
and his other family members started harassing
victim in demand of dowry - inability of paying
dowry - She was continuously harassed and
humiliated - Victim used to inform the entire
story to her parents on telephone - It was also
informed by her that accused-appellant and his
family members took out ornaments from her
almirah.

Criminal Law - Indian Penal Code, 1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4 -
Criminal Procedure Code, 1973 - Section
313 - Indian Evidence Act, 1872 - Section
- 113 B - Appeal against conviction -
Examination of accused - Demand of dowry -
witnesses withstood lengthy cross-examination
but noting adverse could be recorded - so as to
disbelieve their testimonial statements.

Criminal Law - Indian Penal Code,1860 -
Sections
498-A
&
304-B
-
Dowry
Prohibition Act, 1961 - Sections -2, 3 & 4,
Criminal Procedure Code, 1973 - Section
313 - Indian Evidence Act, 1872 - Section
- 113 B - Appeal against conviction -
Examination of accused - Demand of dowry -
proper appreciation of evidence - once all the
essential ingredients are established by the
prosecution - presumption under section 313-B
of Evidence Act, mandatorily operates against
the accused.

Criminal Law - Indian Penal Code,1860 -
Sections
498-A,
304-B
-
Dowry
Prohibition Act, 1961 - Sections 2, 3 & 4,
Criminal Procedure Code, 1973 - Section
313 - Indian Evidence Act, 1872 - Section
- 113 B - Appeal against conviction - question
of appropriate sentence is depends upon the
facts and circumstances of each case, nature of
offence and manner - punishment should be
proportionate to gravity of offence - Trail court