# Mubarak Ali v. State of U.P

- **Citation:** (2019) 2 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-01-09
- **Case number:** Jail Appeal No. 2314 of 2013
- **Bench:** Sudhir Agarwal, Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mubarak-ali-v-state-of-u-p-44757
- **Pages:** 13

## Headnote

A. Indian Penal Code, 1860 -Sections
302, 504 and 506 - Appeal against
conviction - Ocular testimony of the
injury caused by the appellant upon
informant cannot be said to be incorrect
are discredit worthy and on the other
hand entire evidence is consistent and
duly corroborated the FIR version.

B. Indian Evidence Act, 1872 - Section 27 -
How much information received from
accused may be proved Section 27Sections 25 and 26 provide that no
confession made to the police officer
whether in custody or not can be proved
against the accused. Section 27, is proviso
to above Sections and statement even by
way of confession, which distinctly relates
to the fact discovered is admissible as
evidence
against
accused
in
the
circumstances stated in Section 27.
It is settled law that not the number of
witnesses, but their quality which is material.
Non examination of one or more witnesses will
not help an accused if the evidence adduced
by prosecution is sufficient to prove the charge
leveled against the accused. (Para 35)
Jail Appeal dismissed (E-2)
List of Cases Cited: -

## Text

_Characters 0–39,833 of 42,667. This is a partial read: ask again with offset=39833 for what follows._

412 INDIAN LAW REPORTS ALLAHABAD SERIES

36. Lower Court record along with a
copy
of
this
judgment
be
sent
immediately to District Court concerned
for compliance and further necessary
action.

 37. Before parting, we provide that
Sri Noor Mohammad, Advocate, who has
appeared as Amicus Curiae for appellants
2 and 3 in present Jail Appeal, shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrancer, posted in the office of
Advocate General at Allahabad, without
any delay and, in any case, within one
month from the date of receipt of copy of
this judgment.
----------

(2019)10ILR A 412

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAM KRISHNA GAUTAM, J.

Jail Appeal No. 2314 of 2013

Mubarak Ali ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Araf Khan, Sri Brijesh Chand Kaushik,
Sri Lihazur Rahman Khan, Sri Noor
Mohammad

Counsel for the Opposite Party:
A.G.A.

A. Indian Penal Code, 1860 -Sections
302, 504 and 506 - Appeal against
conviction - Ocular testimony of the
injury caused by the appellant upon
informant cannot be said to be incorrect
are discredit worthy and on the other
hand entire evidence is consistent and
duly corroborated the FIR version.

B. Indian Evidence Act, 1872 - Section 27 -
How much information received from
accused may be proved Section 27Sections 25 and 26 provide that no
confession made to the police officer
whether in custody or not can be proved
against the accused. Section 27, is proviso
to above Sections and statement even by
way of confession, which distinctly relates
to the fact discovered is admissible as
evidence
against
accused
in
the
circumstances stated in Section 27.
It is settled law that not the number of
witnesses, but their quality which is material.
Non examination of one or more witnesses will
not help an accused if the evidence adduced
by prosecution is sufficient to prove the charge
leveled against the accused. (Para 35)
Jail Appeal dismissed (E-2)
List of Cases Cited: -
1. Delhi Administration Vs Bal Krishan & ors.
1972(4) SCC 659
2. Mohmed Inayatullah Vs The St. of Mah.
1976 (1) SCC 828
3. Bodh Raj @ Bodha & ors. Vs St. of J&K
2002(8) SCC 45
4. Criminal Appeal No. 1333 of 2009 Raju
Manjhi Vs St. of Bihar
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This Jail Appeal under Section 383
Cr.P.C. has been preferred by accusedappellant
Mubarak
Ali
through
Jail
Superintendent, Aligarh against judgment
and order dated 23.10.2012 passed by Sri
Vinod
Kumar-II,
Additional
Session
2 All. Mubarak Ali Vs State of U.P.
413
 Judge, Court No. 3, Hathras. By the
impugned judgment, accused-appellant
has been convicted under Sections 302,
504 and 506 I.P.C. He has been sentenced
to undergo life imprisonment under
Section 302 Cr.P.C. with a fine of Rs.
5,000/- and in default of payment of fine,
he has to further undergo three months
additional imprisonment. Further, under
Sections 504 and 506 I.P.C. he has been
sentenced to undergo 2 years and 7 years
Rigorous
Imprisonment
(hereinafter
referred to as "R.I.") respectively. All the
sentences
were
ordered
to
run
concurrently.

2. Prosecution story as evident from
First Information Report (hereinafter
referred to as "FIR") as well as material
available on record are as follows.

3. A written report (Ex.Ka-1) was
presented in P.S. Sadabad, District
Mahamaya Nagar by PW-1, Sugriva
Singh Rawat, on 12.01.2008 stating that
he is resident of Nai Basti, Eidgah. Some
unsocial elements used to visit the house
of his neighbor Mubarak Ali to which
Informant, PW-1 had been objecting and
on account thereof accused Mubarak Ali
bore enmity with Informant's family. On
the fateful evening, i.e., 12.01.2008, at
about 6.00 PM Informant's son, Manveer
Singh, had gone to the shop of Lala for
purchasing
certain
commodities.
Accused-appellant Mubarak Ali, resident
of Nai Basti, Eidgah, owing to aforesaid
enmity, lay in ambush in the way and
assaulted his son with knife with intention
to kill him. His son raised an alarm,
whereupon Informant, his another son,
PW-2 Rajveer Singh, Informant's wife,
Smt. Phoolwati, PW-3 Bhagwan Das, son
of Ram Vilas, resident of village Sarauth,
Dilip Sharma, son of Satish Chandra
Sharma and several other persons, who
were
present
nearby
the
place
of
occurrence, rushed to the spot. Seeing
witnesses reaching the spot, accusedappellant inflicted several knife blows and
saying that though he (Manveer Singh)
escaped that day but would not be saved
in future, fled away. PW-1 Informant
along with family members and neighbor
took injured Manveer Singh to Sadabad
Government
Hospital
in
a
serious
condition. Condition of injured being
precarious, he was referred to Agra.
Informant then went to Police Station for
lodging FIR. On the same day another
application (Ex.Ka-2) was also given at
Police Station Sadabad to the effect that
while carrying injured to Agra for
treatment, he succumbed to his injuries at
about 8.30 PM near Bhagwan Talkies,
Agra.

4. On the basis of written report
(Ex.Ka-1), PW-6 Constable Shivpal Singh
registered a case at Case Crime No. 16 of
2008 under Sections 504, 506 I.P.C. and
prepared chik FIR (Ex.Ka-10). He also
made entry of the case in General Diary, a
copy of which has been filed in Court as
Ex.Ka-11. Immediately on registration of
the case, investigation was undertaken by
PW-5,
S.S.I.
Satish
Chandra,
who
proceeded to place of occurrence and,
prepared site-plan (Ex.Ka-5). He also
took sample of blood and simple
earth,packed in separate packs, sealed
them and prepared recovery memo
(Ex.Ka-3). He prepared inquest report
(Ex.Ka-6)
on
13.01.2008
in Tehsil
Campus, Sadabad. In the opinion of
Investigating Officer as well as witnesses
of inquest, death had occurred due to
injuries sustained by deceased. Thereafter
he sealed dead body and sent the same to
District Hospital for post mortem after
414 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary
documentation,
through
Constable Ashok Kumar and Jitendra
Kumar.

5. Autopsy on the dead body of
deceased Manveer was conducted by PW4, Dr. A.K. Paliwal on 13.02.2008 at
about 1.00 PM. According to Doctor, the
deceased was of average body built and
aged about 15 years; rigor mortis was
present all over the body and about half a
day had passed since his death. He found
following ante mortem injuries on the
person of deceased:

(1) Punctured wound 3.5X2 cm,
cavity deep on front of right side of
chest, 8 cm below right nipple at 5'O
clock position.

(2) Incised would 4x1 cm, muscle
deep on front of left palm, medial side

(3) abrasion 1 x 1⁄2 cm on back
of right hand.

6.

On
internal
examination,
membranes were found pale. Right pleura
was found punctured and clotted blood were
present; right lung (lower lobe) punctured;
heart was empty; abdominal peritoneum
was punctured; abdominal cavity contained
clotted
blood;
teeth
15x15;
stomach
contained 150 gram pasty food material;
lever was punctured; gall bladder was half
full; spleen and both kidneys were pale and
urinary bladder was empty. In the opinion
of Doctor, death was caused due to shock
and hemorrhage on account of ante mortem
injuries. He prepared post-mortem report
(Ex.Ka-4) and after sealing the dead body
as well as clothes of deceased (10 in
number), he handed over the same to the
Constables who had brought the dead body.

7. Subsequently, PW-5, S.I. Satish
Chandra was transferred and investigation
was undertaken by PW-8 Rakesh Chandra
Sharma. He recorded statements of
witnesses, arrested the accused and after
conclusion of investigation submitted
Charge-Sheet No. 18 of 2008 (Ex.Ka-15)
in the Court of Chief Judicial Magistrate,
Hathras who took cognizance of the
offence on 04.03.2008.

8. The case being triable by Court of
Sessions, was committed to Sessions Court on
04.04.2008. Learned Sessions Judge, Hathras
framed charges against accused-appellant on
26.05.2008 as under:

^^eSa] vuUr dqekj] l= U;k;k/kh'k]
gkFkjl vki vfHk;qDr dks fuEu vkjksiksa ls
vkjksfir djrk gWaw%&

izFke& ;g fd fnukad 12&01&2008 dks
le; djhc 6-00 cts 'kke LFkku ykyk dh nqdku
fLFkr ubZ cLrh] bZnxkg] dLck lknkckn ftyk
gkFkjl esa vkius lk'k; o tkucw>dj oknh ds iq=
euohj flag dks Nqjk Hkksad dj] pksV igqWapkdj xEHkhj
:i ls ?kk;y dj fn;k ftlds dkj.k bykt ds
nkSjku mldh e`R;q gks x;hA bl izdkj vkius ,slk
ekuo o/k fd;k tks gR;k dh ifjf/k esa vkrk gSA vr%
vkius /kkjk&302 Hkk-n-la- ds vUrxZr n.Muh; vijk/k
dkfjr fd;k tks bl U;k;ky; ds izlaKku esa gSaA

f}rh;& ;g fd mijksDr fnukad]
le; o LFkku ij vkius oknh ds yM+ds euohj
flag dks xkyh xykSt djds bl vk'k; ls
viekfur fd;k fd og izdksfir gksdj yksd
'kkfUr Hkax djrkA bl izdkj vkius /kkjk&504
Hkk-n-la- ds vUrxZr n.Muh; vijk/k dkfjr
fd;k tks bl U;k;ky; ds izlaKku esa gSA

r`rh;& ;g fd mDr fnukad] le;
o LFkku ij vkius euohj flag dks Hkfo"; esa
tku ls ekjus dh /kedh nsdj vkijkf/kd la=kl
dkfjr fd;kA bl izdkj vkius /kkjk&506 Hkk-n-
2 All. Mubarak Ali Vs State of U.P.
415
la- ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks
bl U;k;ky; ds izlaKku esa gSA

,rn~}kjk vkidks funsZf'kr fd;k tkrk
gS fd mDr vkjksi ds rgr vkidk fopkj.k bl
U;k;ky; }kjk fd;k tk,xkA^^

"I,
Anant
Kumar,
Sessions
Judge, Hathras charge you accused
Mubarak Ali with the following charges:

Firstly, that you on 12.01.2008 at
about 6.00 PM at the Shop of Lala situated in
Nai Basti Eidgah, Quasba Sadabad, District
Hathras
intentionally
and
deliberately
inflicted grievous injuries to Manveer Singh,
son of informant by stabbing knife on him, on
account of which, during course of treatment,
he died. Thereby, you committed homicide
which falls within the category of murder and,
therefore, you have committed an offence
punishable under Section 302 I.P.C. which is
within the cognizance of this Court;

Secondly, on the aforesaid date,
place and time you intentionally insulted
informant's son Manveer Singh knowing that
it might have provoked him to break the
public peace. Thereby, you have committed an
offence punishable under Section 504 I.P.C.
and within the cognizance of this Court.

Thirdly on the aforesaid date, place
and time, by threatening Manveer to kill him in
future, you committed criminal intimidation.
Thereby you have committed an offence
punishable under Section 506 I.P.C. and within
the cognizance of this Court.

I hereby direct you be tried by
this Court for the aforesaid charges."
(English Translation by Court)

9. The accused-appellant pleaded
not guilty and claimed to be tried. In
support of his case, prosecution examined in
all 8 witnesses, out of which PW-1, Sugriva
Singh, PW-2 Rajveer Rawat, PW-3 Bhagwan
Das and PW-7 Sanjay Singh alias Sanju are
witness of fact. Rest are formal witnesses.
PW-4 is Dr. A.K. Paliwal, who had conducted
autopsy over the dead body of deceased
Manveer and has proved Post-mortem report
(Ex.Ka-4). PW-5, S.S.I., Satish Chandra is
first Investigating Officer, who has proved site
plan (Ex.Ka-5), recovery memo (Ex.Ka-3) in
respect of blood stained and simple earth'
inquest (Ex.Ka-6) and other documents
prepared by him. He has also proved material
Exhibits before the Court including clothes of
the deceased. PW-6 Constable Shivpal Singh
had registered FIR at Case Crime No. 16 of
2008 on presentation of written report (Ex.Ka1) by Informant PW-1 and had prepared chik
report and made entry of the crime in General
Diary. He has proved copy of chik FIR
(Ex.Ka-10) as well as G.D. (Ex.Ka-11). PW-8
Rakesh
Chandra
Sharma
is
second
Investigating Officer who had arrested the
accused-appellant and after conclusion of
investigation, submitted charge-sheet (Ex.Ka15) in Court.

10. After closure of prosecution
evidence, statement of accused-appellant
under Section 313 Cr.P.C. was recorded. He
stated to have been falsely implicated in the
case and that prosecution witnesses in
connivance with Informant are deposing
falsely. He is not aware of the injuries
sustained by the deceased. He did not adduce
any oral evidence in support of defence.

11. After hearing counsel for parties,
Trial Court recorded verdict of conviction
against accused-appellant and sentenced
him as stated above.

12. Trial Court relied on ocular
version of PW-1, PW-2 and PW-3 that
416 INDIAN LAW REPORTS ALLAHABAD SERIES
incident took place before them and they
are witnesses of incident of accusedappellant causing injuries to Manveer
which ultimately proved fatal causing his
death while he was on the way for
Hospital. It has also observed that minor
inconsistencies and contradictions were
not material and substantial so as to
discredit ocular version of aforesaid three
witnesses. Witnesses proved that on
12.01.2008 Manveer had gone to the shop
of Lala for some purchases at about 6.00
PM when Mubarak Ali caught him and
attacked with knife. First attack was taken
by Manveer on his hand resulting injury
on his hand and second attempt was on
his chest. This evidence of PW-1 and PW2 is duly corroborated by medical
evidence also. The mere fact that PW-1 is
father and PW-2 is brother of deceased
per se is not sufficient to reject oral and
ocular testimony of PW-1 and PW-2, in
absence of further material to show that
any of the aforesaid witnesses has any
reason to give false statement and
implicate accused-appellant falsely. The
above oral evidence is consistent with FIR
version. It has also observed that though
there is no evidence of availability of light
at place of incident, but time of incident
being around 6.00 PM in the evening and
it is true that some darkness followed in
winter season at that point of time but
accused-appellant
is
neighbor
of
Informant, PW-1 Sugriv Singh, and such
person could have been easily recognized
even if there is some darkness since
person is well known. This fact is not
sufficient to discredit the ocular version of
witnesses. PW-2 being son of PW-1 was
well acquainted with Manveer and,
therefore, could have easily identify him
even when incident took place in the late
evening in winter season, i.e., around 6.00
PM. Site plan also shows that shop of
Lala was near the place of incident. It has
also relied on discovery of weapon, i.e.,
knife on the information given by
accused-appellant in custody and said
knife in forensic examination was found
to have stains of human blood.

13. Though in case of eye-witness
motive loses its importance but when
motive is shown, it has to be proved. PW-1
has clearly said that accused-appellant had a
suspicion that his wife used to talk with
deceased Manveer Singh and had some
illicit relations with him; accused-appellant
also had nexus with unsocial elements who
use to visit his residence regularly. On this
aspect, Court below not find anything
otherwise extracted by defence in crossexamination. A person may show a criminal
behavior for various reasons and it cannot
be said that a particular fact will not cause
any reason of enmity or motive to commit a
crime. Therefore, Trial Court held that
motive was also proved by prosecution
witnesses. Though incident took place
around 6.00 PM, but Manveer Singh died at
around 8.30 when he was being taken to
Hospital at Agra. Nature of injuries shows
that there was intention of accusedappellant to kill the deceased. Therefore, on
the basis of ocular version of PW-1, PW-2
and PW-3; discovery of weapon of crime,
i.e., knife on the information given by
accused-appellant while in custody and
forensic report proving that weapon had
human blood on it, Trial Court held that
prosecution has successfully proved case
beyond
reasonable
doubt.
Accusedappellant in the statement under Section 313
Cr.P.C. though denied entire incident and
claimed that he was falsely implicated but
could give no such reason as to why he was
falsely implicated and also did not produce
any evidence in defence, hence prosecution
case remained un-rebutted.
2 All. Mubarak Ali Vs State of U.P.
417

14. Feeling dissatisfied, accusedappellant has approached this Court
through Jail Superintendent by means of
this Jail Appeal.

15. Heard Sri Araf Khan, Advocate,
assisted by Sri Lihazur Rahman Khan,
Advocate, for appellant and Sri Syed Ali
Murtaza, learned A.G.A. for State.

16. L earned counsel appearing for
appellant argued that Court below has
erred in fact and law in convicting and
sentencing
appellant
inasmuch
prosecution miserably failed to prove its
case beyond doubt; there was no eye
witness; evidence of the alleged eyewitnesses has been misread by Court
below and there is no evidence to show
that appellant attacked the deceased and
caused his death. He submitted that FIR is
ante time; incident is said to have
occurred at 6.00 PM and FIR was lodged
at 7.00 PM.; the deceased's father and
brother both claimed that they were busy
in taking the deceased for Hospital for
treatment and this shows that FIR has
been lodged subsequently.

17. Learned A.G.A. on the contrary
submitted that incident was seen by
deceased's father, brother and other
witnesses, who deposed in the Court
below and no material inconsistency has
been found in their statements and
coupled with the fact that weapon of
crime was recovered by Police on the
information given by accused-appellant
when in custody clearly prove that it is
only the accused-appellant who has
committed
crime
and,
therefore,
prosecution has successfully proved its
case beyond reasonable doubt which has
been accepted by Trial Court and looking
to the nature of offence, not even
adequate but minimum punishment has
been awarded, hence, appeal is liable to
be dismissed. He further submitted that
for the threat caused by appellant to the
deceased openly in the market area, he
has rightly been convicted under Section
504 and 506 I.P.C.

18. In order to consider the rival
submissions, we have to first examine
whether
PW-1,
PW-2
and
PW-3's
statement can be said to be an ocular
testimony of the incident in question.

19. In the FIR, PW-1 said that
Manveer went to make some purchases
from shop of Lala at around 6.00 PM on
12.01.2008. The accused-appellant lay in
ambush and attacked Manveer Singh with
knife with an intention to kill him. FIR
version further said that Manveer when
assaulted by accused-appellant raised
alarm and hearing it, Informant, his son
Rajveer Singh, wife Smt. Phoolwati and
Bhagwan Das and other persons near him
ran towards the place of incident. When
accused-appellant
saw
these
persons
coming, he quickly inflicted knife injuries
to Manveer Singh and said that today he
was saved but in future he will not and
then ran away. This FIR version shows
that Informant, his son Rajveer Singh and
wife Smt. Phoolwati were not present
near shop of Lala or where accusedappellant was hiding and waiting for
Manveer. These persons ran towards
place of incident when they heard alarm
raised by deceased. However, Informant
said that when they ran towards Manveer
Singh saw accused-appellant inflicting
knife injuries on the body of deceased and
saying that though he (Manveer Singh)
has saved that day but would not be saved
in future, fled away. This part of incident
was seen by Informant and others.
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Informant himself is PW-1 and in cross
examination he has said that he was not
present at his house when incident took
place. His statement in this regard reads
as under:

^^ftl le; ?kVuk gqbZ eSa ?kj ij ugha
FkkA^^

"When the incident took place, I
was not at home."

 (English Translation by Court)

20. He further submitted that
Mubarak Ali was laying in ambush was
told to PW-1 by some persons but who
those persons are, has not been stated.
Therefore, this statement is hearse as
details of any such person giving this
information has not been disclosed.
However, PW-1 has clarified that in his
Gali there are only two houses, one of
himself and another of Om Prakash. On
hearing alarm he ran towards place of
incident and accused-appellant inflicted
injuries by knife before him and he saw it.
He clearly said that two knife injuries
were caused upon deceased by appellant.
There is not much cross examination on
this aspect. Therefore, statement of PW-1
that injuries caused by knife on the body
of the deceased which were seen by him
remained
uncontroverted
which
also
prove FIR version even if other part of
statement of PW-1 is not accepted.

21. PW-2 is brother of deceased. He
has also stated that hearing alarm raised
by Manveer Singh, Informant, Smt.
Phoolwati, mother of PW-2; Dilip Sharma
and Bhagwan Das ran to the place of
incident and saw two knife injuries
inflicted by Mubarak Ali, accusedappellant on the body of Manveer Singh,
who fell near the shop of Lala after
sustaining aforesaid injuries. Appellant,
thereafter ran away and could not be
caught. PW-2 brought Manveer Singh to
Government Hospital, Sadabad where
looking to his precarious condition Doctor
referred him to Agra and while he was on
the way to Hospital at Agra, Manveer
Singh
succumbed
to
injuries
near
Bhagwan Talkies, Agra. Death, therefore,
obviously caused due to injuries sustained
by
Manveer
Singh.
In
the
crossexamination, PW-2 said that when he
reached place of incident, Manveer Singh
had got two injuries, one on the hand and
another on the chest, and lot of blood was
oozing out. It is argued that PW-2,
therefore, is not a witness to the alleged
infliction of knife by Mubarak Ali upon
Manveer Singh. On the contrary PW-2
only saw Manveer Singh in injured
condition when reached the place of
incident. Here we find that reply in cross
examination is obviously in the context of
question asked from witness. The witness
in the examination-in-chief said that on
hearing alarm he ran towards place of
incident from his house. There is a 20
paces distance from house of Informant to
place of incident. It is a straight road as is
evident
from
site
plan.
In
the
examination-in-chief witness said that
when he was running towards deceased
after coming out from house he saw
accused-appellant inflicting knife injuries
upon Manveer Singh and executing a
threat that in future he will not be saved,
accused-appellant
fled
away.
This
evidence is in the time factor when
witness was running from his house to the
place
of
incident.
In
the
crossexamination what he said is that when he
reached place of incident after covering
20 paces, there he found Manveer Singh
in injured condition since by that time
2 All. Mubarak Ali Vs State of U.P.
419
accused-appellant had already fled away. If
we read this statement of PW-2 in entirety
and also in the light of site-plan showing
that there is about 20 paces distance from
the house to the place of incident, we do not
find
any
inconsistency
or
material
contradiction that PW-2 is not an eyewitness of the injuries caused by accusedappellant on the person of deceased. PW-2
being real brother of Manveer Singh, his
conduct was natural in carrying him to
Hospital at Sadabad and when Doctor
referred injured person to District Hospital,
Agra, PW-2 carried him to Hospital at Agra
but in the mid way injured died. In our
view, ocular testimony of PW-2 of injuries
caused by appellant upon Manveer Singh
cannot be said to be incorrect or
discreditworthy and on the other hand entire
evidence is consistent and duly corroborated
the FIR version as well as statement of PW1. Both witness are consistent on the fact
that accused-appellant stabbed deceased
twice and this is duly corroborated by
medical evidence.

22. PW-3, Bhagwan Das, has also
given a similar statement and he is also an
eye-witness of the incident. He also came
to the place of incident and this fact has
been corroborated by PW-1 and PW-2
both. His ocular version prove the
incident of stabbing by Mubarak Ali. The
manner in which two injuries were
inflicted by Mubarak Ali has also been
stated by PW-3 which is consistent with
ocular version of PW-1 and PW-2. The
threat extended by Mubarak Ali before
running away and the words uttered by
him are also corroborated by ocular
testimony of PW-1 and PW-2. In the
cross-examination though an attempt has
been made to prove that he was a chance
witness. To this extent we also find that
he has come to the residence of Sua
Pahalwan for some work which he did not
state clearly as to what for he has come
though he was resident of another Village
Sarauth and Sua Pahalwan was resident of
village Karaiya. Even Village Karaiya is
about 2 miles from place of incident.
While going to Village Karaiya, he
followed the way from Sadabad and in
between witnessed the said incident. At
one place of cross-examination he said
that he heard alarm raised by Manveer
Singh when he was near water tank and
then he reached the place of incident
where 10-15 people were present and
injured was bleeding. Then he also
accompanied injured to Hospital where
they reached around 7.00 PM. This part of
cross examination of PW-3 shows that he
had no occasion to see accused-appellant
inflicting injuries by stabbing with knife
and on the contrary after hearing alarm
when he reached the site 10-15 people
were already present. In the light of these
facts, we find it difficult to accept
testimony of PW-3 as an ocular testimony
to the incident of stabbing by knife on
Manveer Singh by Mubarak Ali and it
appears that PW-3 reached the site after
Manveer Singh had fled away and in
cross-examination this statement has been
given by PW-3 on the information he
received but he himself is not an eye
witness to this fact. He only saw Manveer
Singh in an injured condition and
thereafter took him to Hospital wherefrom
he was referred to Agra and while in the
way Manveer Singh died. Even if this part
of statement of PW-3 that he saw
Mubarak Ali inflicting knife injuries upon
Manveer Singh is excluded still we find
that oral testimony of PW-1 and PW-2 on
this aspect is very clear and there is no
material contradiction to discredit their
testimony,
and
subsequent
part
is
corroborated by PW-3.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Then there is another relevant
aspect, i.e., discovery of knife used in the
crime on the information given by
accused-appellant. This fact has been
proved by PW-7, Sanjay Singh, who is
witness to the recovery memo. An attempt
was made to argue that PW-7 was an
interesting
witness
and
relative
of
deceased but this fact has been clearly
denied by PW-7.

24. PW-8, Investigating Officer,
Rakesh Chandra Sharma, has also proved
arrest of appellant on 17.01.2005. When
statement of accused was recorded, he
gave information and thereafter caused
discovery of knife used in the crime. On
this aspect we do not find anything
extracted by defence in cross examination
to discredit the above witness.

25. This part of evidence that weapon
used in the crime in question was recovered
on the information given by accusedappellant is admissible in evidence under
Section 27 of Indian Evidence Act, 1872
(hereinafter referred to as "Act, 1872").
Section 27 of Act, 1872 provides for how
much of information received from accused
who is in custody of police may be proved.
It reads as under:

"27. How much of information
received from accused may be proved.--
Provided that, when any fact is deposed to
as
discovered
in
consequence
of
information received from a person accused
of any offence, in the custody of a police
officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."

26. Aforesaid provision is by way of
proviso to Sections 25 and 26 of Act,
1872. An statement even by way of
confession made in police custody which
distinctly relates to the fact discovered is
admissible
in
evidence
against
the
accused.

27. In Delhi Administration vs. Bal
Krishan and Ors., 1972(4) SCC 659
Court said that Section 27 permits proof
of so much of information which is given
by persons accused of an offence when in
custody of a Police Officer as relates
distinctly to the fact thereby discovered,
irrespective of whether such information
amounts to a confession or not. Sections
25 and 26 of Act, 1872 provides that no
confession made to a Police Officer
whether in custody or not can be proved
as against the accused. Section 27,
therefore, is proviso to above Sections
and statement even by way of confession,
which distinctly relates to the fact
discovered is admissible as evidence
against accused in the circumstances
stated in Section 27.

28. In Mohmed Inayatullah vs.
The State of Maharashtra, 1976 (1)
SCC 828 Court observed that though
interpretation and scope of Section 27 has
been subject of consideration in several
authoritative
pronouncement
but
its
application to concrete cases is not always
free from difficulty. In order to make its
application swift and convenient Court
considered the provision again and said:

"12. The expression "Provided
that" together with the phrase "whether it
amounts to a confession or not" shows
that the section is in the nature of an
exception to the preceding provisions
particularly Sections 25 and 26. It is not
necessary in this case to consider if this
section qualifies, to any extent, Section
24, also. It will be seen that the first
2 All. Mubarak Ali Vs State of U.P.
421
condition necessary for bringing this
section in to operation is the discovery of a
fact, albeit a relevant fact, in consequence
of the information received from a person
accused of an offence. The second is that
the discovery of such fact must be deposed
to. The third is that at the time of the receipt
of the information the accused must be in
police custody. The last but the most
important condition is that only "so much of
the information" as relates distinctly to the
fact thereby discovered is admissible. The
rest of the information has to be excluded.
The word "distinctly" means "directly",
"indubitably", "strictly", "unmistakably".
The word has been advisedly used to limit
and define the scope of the provable
information. The phrase "distinctly relates
to the fact thereby discovered" is the
linchpin of the provision. This phrase refers
to that part of the information supplied by
the accused which is the direct and
immediate cause of the discovery. The
reason behind this partial lifting of the ban
against confessions and statements made to
the police, is that if a fact is actually
discovered in consequence of information
given by the accused, it affords some
guarantee of truth of that part, and that part
only, of the information which was the
clear, immediate and proximate cause of
the discovery. No such guarantee or
assurance attaches to the rest of the
statement which may be indirectly or
remotely related to the fact discovered."

29. Idea behind Section 27 has been
explained by Court in para 20 of
judgment in Bodh Raj @ Bodha and
Ors. vs. State of Jammu and Kashmir,
2002(8) SCC 45 as under:

"20. If all that is required to lift
the ban be the inclusion in the confession
information
relating
to
an
object
subsequently
produced,
it
seems
reasonable to suppose that the persuasive
powers of the police will prove equal to
the occasion, and that in practice the ban
will lose its effect. The object of the
provision i.e. Section 27 was to provide
for the admission of evidence which but
for the existence of the section could not
in consequence of the preceding sections,
be admitted in evidence. It would appear
that under Section 27 as it stands in order
to render the evidence leading to
discovery of any fact admissible, the
information
must
come
from
any
accused in custody of the police. The
requirement
of
police
custody
is
productive of extremely anomalous results
and may lead to the exclusion of much
valuable evidence in cases where a
person, who is subsequently taken into
custody and becomes an accused, after
committing a crime meets a police officer
or voluntarily goes to him or to the police
station and states the circumstances of the
crime which lead to the discovery of the
dead body, weapon or any other material
fact, in consequence of the information
thus received from him. This information
which is otherwise admissible becomes
inadmissible under Section 27 if the
information did not come from a person
in the custody of a police officer or did
come from a person not in the custody of
a police officer. The statement which is
admissible under Section 27 is the one
which is the information leading to
discovery. Thus, what is admissible being
the information, the same has to be
proved and not the opinion formed on it
by the police officer. In other words, the
exact information given by the accused
while in custody which led to recovery of
the articles has to be proved. It is,
therefore, necessary for the benefit of
both the accused and prosecution that
422 INDIAN LAW REPORTS ALLAHABAD SERIES
information given should be recorded and
proved and if not so recorded, the exact
information must be adduced through
evidence. The basic idea embedded in
Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered as a
search made on the strength of any
information obtained from a prisoner, such a
discovery
is
a
guarantee
that
the
information supplied by the prisoner is true.
The information might be confessional or
non-exculpatory in nature but if it results in
discovery of a fact, it becomes a reliable
information. It is now well settled that
recovery of an object is not discovery of fact
envisaged in the section. Decision of Privy
Council in Palukuri Kotayya v. Emperor AIR
1947 PC 67 is the most quoted authority for
supporting the interpretation that the "fact
discovered" envisaged in the section
embraces the place from which the object
was produced, the knowledge of the
accused as to it, but the information given
must relate distinctly to that effect. (see State
of Maharashtra v. Danu Gopinath Shirde
and Ors. 2000 CriLJ 2301). No doubt, the
information permitted to be admitted in
evidence is confined to that portion of the
information which "distinctly relates to the
fact
thereby
discovered".
But
the
information to get admissibility need not be
so truncated as to make it insensible or
incomprehensible. The extent of information
admitted
should
be
consistent
with
understandability. Mere statement that the
accused led the police and the witnesses to
the place where he had concealed the
articles is not indicative of the information
given. " (emphasis added)

30.

Similar
issue
has
been
considered in a recent judgment of
Supreme Court in Criminal Appeal No.
1333 of 2009, Raju Manjhi vs. State of
Bihar, decided on 02.08.2018. Therein
Court held that Act, 1872 provides that
even when an accused being in the
custody of police makes a statement that
reveals some information leading to the
recovery of incriminating material or
discovery of any fact concerning to the
alleged offence, such statement can be
proved against him. Court held that
recoveries of used polythene pouches of
wine, money, clothes, chains and bangle
were all made at the disclosure by the
accused
which
corroborates
his
confessional statement and proves his
guilt and such confessional statement
stands and satisfies the test of Section 27
of Act, 1872.

31. In the case in hand, witness has
proved the fact that on the information
given by accused in custody, weapon of
crime was recovered and, therefore, in our
view, this fact is admissible in evidence
and Court below has rightly taken the
same as a relevant admissible evidence.

32. Accused-appellant was given
due opportunity of defence but he chose
not to give any evidence and under
Section 313 Cr.P.C. his reply is evasive.

33. In these entire facts and
circumstances, we are clearly of the view
that Court below has rightly held that
prosecution has successfully proved its
case beyond reasonable doubt against
accused-appellant.

34. Learned counsel for appellant,
however, argued that Smt. Phoolwati,
wife of Sugriv Singh, Informant was not
examined though PW-1 and PW-2 both
claim that she also reached with them at
the site of incident simultaneously.
2 All. Mubarak Ali Vs State of U.P.
423
Besides, Dilip Sharma was also not
examined.

35. We find no substance in the
above argument for the reason that it is
not the number of witnesses, but their
quality
which
is
material.
Non
examination of one or more witnesses will
not help an accused if the evidence
adduced by prosecution is sufficient to
prove the charge leveled against accusedappellant and, therefore, non examination
of any witness per se will not be of any
assistance to accused-appellant.

36. With regard to ante-timing of FIR,
we find that initially Manveer Singh
sustained serious injuries and he was taken to
Hospital at Sadabad where, as per PW-3,
they reached at about 7.00 PM when Doctor
did not administer any treatment and looking
to severity of injuries immediately referred
them to Agra. Brother of Manveer, by a
private vehicle, proceeded for Agra. In the
meantime, father of deceased, PW-1, initially
lodged report at Sadabad Police Station at
around 7.00 PM. When distance of Police
Station is about one kilometer it cannot be
said that FIR is ante time. Time is mentioned
approximately and when such an incident
has occurred, it is not expected that every
person will be taking steps by noticing exact
time with a close observation of watch.
Initially, report is that of an injury and that is
why it was registered under Section 307, 504
and 506 I.P.C. but when Manveer Singh died
at around 8.30 on the same day and his
brother communicated this fact by phone to
Informant, he gave this information to Police
on the same day by Ex.Ka-2 and thereafter
case was registered under Section 302, 504
and 506 I.P.C.

37. Looking into the evidence as
discussed above there can be no doubt
that it is only appellant who has
committed crime in question.

38. No argument has been advanced
on conviction and sentence under Section
504 and 506 I.P.C. but we have examined
this aspect also. Evidence of PW-1 and
PW-2, which we have already discussed
above, conviction of accused-appellant
under Section 504 and 506 I.P.C. also is
duly proved by evidence and Trial Court
has rightly given a verdict of conviction.

39. Now coming to the question of
sentence, it is a matter of common
knowledge that punishment should be
adequate and in this regard various factors
need be considered. In the present case,
accused-appellant has been found guilty
of murder and has committed a crime
under Section 302 I.P.C. where minimum
punishment
is
life
imprisonment,
therefore,
punishment
awarded
to
accused-appellant under Section 302
I.P.C. cannot be said to be illegal,
erroneous or excessive. The punishment
imposed upon accused-appellant under
Section 504 and 506 I.P.C. also cannot be
said to be excessive or unjust considering
the entire evidence, as we have already
discussed above. Impugned judgment and
order passed by Trial Court, therefore,
deserves to be affirmed.

40. In view of above discussion, the
appeal is dismissed. Impugned judgment
and order dated 23.10.2012 passed by
Additional Sessions Judge, Court No. 3,
Hathras in Session Trial No. 162 of 2008
(State Vs. Mubarak Ali) relating to Case
Crime No. 16 of 2008, under Sections
302, 504, 506 I.P.C., Police Station
Sadabad,
District
Hathras
awarding
sentence of imprisonment for life with a
fine of Rs.