# Munawwar (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 365
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-08
- **Case number:** Criminal Appeal No. 4759 of 2007
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munawwar-in-jail-v-state-of-u-p-48199
- **Pages:** 14

## Headnote

Evidence Law - Indian Evidence Act-
Section 134- Conviction on basis of
solitary witness- When an incident of the
nature as is in the instant case occurs,
graphic description of each and every
detail with regard to each part of the
incident is humanly not possible and
therefore what is to be ascertained is
whether
the
incident
was
actually
witnessed or not by the person who seeks
to prove its occurrence and whether the
ocular account is corroborated with other
evidences - The presence of PW-1 with the
deceased at the time of incident cannot be
doubted- The discrepancy pointed out by
the learned counsel for appellant in the
ocular account with the medical evidence
is not such that renders the ocular account
improbable
or
contrived-
The
ocular
account rendered by PW-1 trustworthy,
natural and acceptable more so because,
it
finds
corroboration
from
the
surrounding circumstances as well as
medical evidence.

Although it is not humanely possible for a
witness
to
narrate
the
occurrence
with
366 INDIAN LAW REPORTS ALLAHABAD SERIES
exactitude,
but
where
the
testimony
is
corroborated with medical and other evidence
and the same is, trustworthy and credible then
such testimony can be relied upon.

Keeping in mind that this is a broad day light
murder of which a prompt named first
information report was
lodged, which is
supported by an ocular account that finds
corroboration from the medical evidence as well
as
other
surrounding
circumstances,
the
prosecution has succeeded in proving the guilt
of the appellant beyond reasonable doubt and
therefore, we do not find any merit in this
appeal. ( Para 27, 29. 30, 32)

Criminal Appeal rejected. (E-3)

## Text

_Characters 0–39,980 of 47,733. This is a partial read: ask again with offset=39980 for what follows._

3 All. Munawwar Vs. State of U.P.
365
had an opportunity of showing cause
against such enhancement.

Provided
further
that
the
appellate court shall not inflict greater
punishment for the offence which in its
opinion the accused has committed, than
might have been inflicted for that offence
by the court passing the order or sentence
under appeal."

14. From the reading of Section 386
of Cr.P.C., it is clear that appeal under
Section 14-A SC/ST Act will fall within
clause (d) and (e) of the Cr.P.C. Therefore,
the appeal is liable to be allowed and order
dated 16. 10.2019 passed by Special Judge
SC/ST (PA) Act, Kushinagar at Padrauna is
liable to set-aside and directions be issued
to learned Special Judge SC/ST Act to pass
fresh order on charge-sheet in the aforesaid
case after applying its judicial mind.

15. The appeal is, accordingly,
allowed and the impugned order dated
16.10.2019 passed by Additional Sessions
Judge/Special Judge, SC/ST (PA) Act,
Kushinagar at Padrauna in Special Session
Trial No. 419 of 2019 (State vs. Jai Prakash
and another), arising out of Case Crime No.
96 of 2017, under Sections 323, 504, 506,
427 of I.P.C. and Section 3 (1) (Da) of
SC/ST Act, Police Station- Ramkola,
District- Kushinagar, is set-aside.

16.
Learned
Additional
Sessions
Judge/Special Judge, SC/ST (PA) Act,
Kushinagar at Padrauna is directed to pass
fresh order on the point of taking
cognizance on the charge-sheet in the
aforesaid case after applying its judicial
mind.
----------
(2022)03ILR A365
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 4759 of 2007

Munawwar ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.P.S. Chauhan, Sri Amir Khan, Sri
Beena Mishra, Sri K.D. Tiwari, Sri Mohd.
Asad, Sri Mohd. Samiuzzaman Khan, Sri
Mukhtar Alam, Sri Noor Mohammad, Sri
Zahid Ali, Sri R.B. Singh, Sri N.K. Singh

Counsel for the Respondent:
A.G.A.

Evidence Law - Indian Evidence Act-
Section 134- Conviction on basis of
solitary witness- When an incident of the
nature as is in the instant case occurs,
graphic description of each and every
detail with regard to each part of the
incident is humanly not possible and
therefore what is to be ascertained is
whether
the
incident
was
actually
witnessed or not by the person who seeks
to prove its occurrence and whether the
ocular account is corroborated with other
evidences - The presence of PW-1 with the
deceased at the time of incident cannot be
doubted- The discrepancy pointed out by
the learned counsel for appellant in the
ocular account with the medical evidence
is not such that renders the ocular account
improbable
or
contrived-
The
ocular
account rendered by PW-1 trustworthy,
natural and acceptable more so because,
it
finds
corroboration
from
the
surrounding circumstances as well as
medical evidence.

Although it is not humanely possible for a
witness
to
narrate
the
occurrence
with
366 INDIAN LAW REPORTS ALLAHABAD SERIES
exactitude,
but
where
the
testimony
is
corroborated with medical and other evidence
and the same is, trustworthy and credible then
such testimony can be relied upon.

Keeping in mind that this is a broad day light
murder of which a prompt named first
information report was
lodged, which is
supported by an ocular account that finds
corroboration from the medical evidence as well
as
other
surrounding
circumstances,
the
prosecution has succeeded in proving the guilt
of the appellant beyond reasonable doubt and
therefore, we do not find any merit in this
appeal. ( Para 27, 29. 30, 32)

Criminal Appeal rejected. (E-3)

(Delivered by Hon'ble Manoj Misra, J.
&
Hon'ble Sameer Jain, J.)

1.

We
have
heard
Mohd.
Samiuzzaman Khan along with Ms. Beena
Mishra for the appellant - Munawwar; Sri
J.K. Upadhyaya, learned AGA, for the
State and have perused the record.

2. This appeal is against the judgment
and order dated 12.07.2007, passed by
Additional Sessions Judge, Court No.7,
Badaun in Sessions Trial No.544 of 2006
connected with Sessions Trial No.545 of
2006. In Sessions Trial No.544 of 2006, the
appellant was prosecuted for offence
punishable under Section 302 read with
Section 34 IPC, arising out of Case Crime
No.18 of 2006, police station Bisauli,
district Badaun; whereas, in Sessions Trial
No.545
of
2006
the
appellant
was
prosecuted for offence punishable under
Section 25 of the Arms Act, arising out of
Case Crime No.94 of 2006, police station
Bisauli, district Badaun. By the impugned
judgment and order, in Sessions Trial
No.544 of 2006, the appellant has been
convicted under Section 302 read with
Section
34
IPC
and
sentenced
to
imprisonment
for
life
with
fine
of
Rs.5,000/- and a default sentence of one
year; whereas, in Sessions Trial No.545 of
2006, the appellant has been acquitted of
the charge of offence punishable under
Section 25 of the Arms Act. Consequently,
this appeal assails the judgment and order
of conviction and sentence recorded under
Section 302 read with Section 34 IPC in
Sessions Trial No.544 of 2006.

Introductory facts

3. The prosecution case in a nutshell,
instituted on a written report (Exb. Ka-1),
lodged by the informant - Jalaluddin (PW1), at 16.30 hours, on 03.01.2006, at police
station Bisauli, district Badaun (of which
check report no.03 of 2006 (Ex. Ka-13) and
GD Entry No.31 (Ex. Ka-14), giving rise to
case crime no.18 of 2006, was made by
PW-6), is that while PW-1 and his brother
Raees Khan (the deceased) were returning
on a motor cycle, after taking medicine for
the deceased, at about 3.00 pm, when they
took a turn to Bahoran's place of residence,
on way, the accused, namely, Harvir, Iliyas
(both not put to trial as they had died in a
police encounter) and Munawwar (the
present appellant), were noticed with
firearms, coming from front. As soon as
they (accused) saw the informant and his
brother, they shouted that after a long time
they could get an opportunity to finish off
the deceased. Hearing their shouts, the
deceased jumped off from the motorcycle,
as a result whereof, the licensed gun which
he was carrying on his shoulder fell and
was lifted by co-accused Iliyas. All of them
(accused) chased the deceased who ran
towards the house of Sardar Mewa; there,
the deceased was surrounded and killed by
the accused persons. It is alleged that Iliyas
shot the deceased from the gun which fell
3 All. Munawwar Vs. State of U.P.
367
off the shoulder of the deceased and the
other two accused fired at the deceased
from their own country made pistols. It was
alleged that the body of the deceased was
lying at the spot and that the incident was
witnessed by several persons of the village
including Shamshad (PW-2) and Rahmat
Khan (PW-3). The motive disclosed for the
crime was animosity on account of the
deceased being elected Gram Pradhan.

4. The inquest proceedings were
completed at the spot by 17.40 hours on
03.01.2006 of which report (Ex. Ka-3A)
was prepared. The informant (PW-1) is one
of the inquest witnesses. Autopsy was
conducted on 04.01.2006 at about 3.30 p.m.
Autopsy report (Ex Ka-3) prepared by PW4 reveals following external ante-mortem
injuries on the body of the deceased:

1. An abrasion of 3 cm x 3.5 cm
over left side of hip, 12 cm below from
pelvic bone.

2. An abrasion of 1.5 cm x 1 cm,
12 cm above from injury no.1.

3. An entry wound of firearm of 1
cm x 1 cm x cavity deep on right side of
back of chest, 9.5 cm below from inferior
angle of right scapula. Margins inverted
burning present with clotted blood.

4. An exit wound of firearm 4 cm
x 3.5 cm on right side of lateral aspect of
trunk, 21 cm below from apex of Axilla.
Injury no.(3) and (4) communicates each
other.

5. An entry wound 1.5 cm x 1 cm
on right side of front of chest, 9 cm above
from right nipple at 11 'O' clock position.
Burning present. Margin inverted. This
communicates to its exit wound described
below as injury no.6.

6. A wound of exit of firearm 2
cm x 1.5 cm on right side of back of chest,
5.5 cm lateral from injury no.(3).

7. A wound of entry of firearm 3
cm x 1.5 cm on right side of front of
abdomen 3 cm above from umbilicus at 10
'O' clock position margin inverted. Burning
present with clotted blood.

8. An exit wound 3.5 cm x 2 cm
on right side of back of trunk, 17 cm above
from upper end of (sic). Injury no. (7) & (8)
communicate each other.

The internal examination of the
body of the deceased revealed:

Both lungs with pleura lacerated;
and the stomach contained 75 gm of semidigested semi-solid food material.

According to the Doctor, the
death was a result of haemorrhage and
shock due to ante-mortem firearm injuries;
and the death could have occurred about
one day before.

It be noted that 17 metallic pellets
were recovered from the body of the
deceased.

5. During the course of investigation,
a seizure cum supardgi memo (Ex. Ka-2) of
12 bore DBBL gun lifted from the spot,
which allegedly fell off deceased's shoulder
and was used to fire at him, was prepared
on 03.01.2006. The memo mentions that
the barrel of the gun smells of burnt
explosive. The Investigating Officer (I.O.)
also lifted plain earth and blood stained
earth from the spot of which recovery
memo (Ex. Ka-10) dated 03.01.2006 was
prepared. The I.O. also prepared the site
plan (Ex. Ka-9) of the place of occurrence
368 INDIAN LAW REPORTS ALLAHABAD SERIES
on
03.01.2006
and
on
07.02.2006
recovered a .315 bore country made pistol
from the appellant; of which seizure memo
(Ex. Ka-11) was prepared. In respect of
recovery of country made pistol from the
appellant, a separate case was registered,
namely, Case Crime No.94 of 2006, which
gave rise to Sessions Trial No.545 of 2006.

6. After completing the investigation,
the police submitted two charge-sheets. In
Case Crime No.18 of 2006, charge-sheet
(Ex. Ka-12) was submitted by PW-5
against the appellant under Section 302
read with Section 34 IPC, whereas in Case
Crime No.94 of 2006 a separate chargesheet (Ex. Ka-16) was prepared and
submitted by PW-7. In the charge-sheet
submitted against the appellant in Case
Crime No.18 of 2006 it was mentioned that
the other two co-accused, namely, Iliyas
and Harvir have been killed in a police
encounter and therefore, they have not been
sent for trial. After taking cognizance on
the two charge-sheets, the two cases were
committed to the Court of Session resulting
in two separate trials, namely, Sessions
Trial No.544 of 2006 where the appellant
was charged under Section 302 read with
Section 34 IPC and Sessions Trial No.545
of 2006 where the appellant was charged
for offence punishable under Section 25 of
the Arms Act. Upon denial of the charge,
both these trials commenced and were
connected. Ultimately, they were decided
by common impugned judgment and order.

7. During the course of trial, the
prosecution examined as many as eight
prosecution witnesses. PW -1 - Jalaluddin
i.e. the informant who is also an eyewitness of the incident; PW-2 - Shamshad,
also alleged to be an eye-witness but was
declared hostile. PW-3 - Rahmat Khan,
another eye witness, who, though, proved
the occurrence and participation of three
assailants including co-accused Harvir in
the murder of the deceased but, except
Harvir, he could not recognise the other
two assailants, as they were not known to
him. PW-4 - Dr. Satyapal Singh proved the
autopsy report and stated that he found two
liters of blood and 17 metallic pellets inside
the body at the time of autopsy and that
looking to the presence of semi-digested
food in the stomach there was a possibility
that the deceased might have consumed
food material 21⁄2 to 5 hours before his
death. PW-4 also disclosed that there were
three entry wounds and those wounds were
not likely to have been caused by same
firearm. PW-4 accepted the possibility of
death having occurred at or about 3.30 p.m.
on 03.01.2006. PW-5 is the I. O. of Case
Crime No.18 of 2006, who proved various
stages of the investigation such as: inquest
including preparation of its report (Ex. Ka3A); preparation of photo nash (Ex. Ka-4),
challan nash (Ex Ka-6, letter to R.I. (Ex.
Ka-7) and CMO (Ex. Ka-8) for autopsy;
preparation of site plan (Ex. Ka-9); lifting
of blood stained earth and plain earth from
the spot (Ex. Ka-10); taking possession and
handing over possession of DBBL gun (Ex.
Ka-2) including the thumb mark / signature
appearing there on; recording statement of
witnesses
during
the
course
of
investigation; arrest of appellant and
recovery of a country made pistol from the
pocket of his trouser worn by him at the
time of arrest of which memo (Ex. Ka11),
dated 07.02.2006, was prepared; and
submission of charge-sheet (Ex. Ka-12) in
case crime no.18 of 2006. He produced the
country
made
pistol
and
cartridge
recovered by him which were marked
material exhibits 1 & 2 respectively. He
also stated that the recovered items were
sent for forensic examination. PW-6,
constable Rajesh Kumar, proved the G.D.
Entry of the written report /FIR in Case
3 All. Munawwar Vs. State of U.P.
369
Crime No.18 of 2006 at 16.30 hours as well
as preparation of its check FIR, which were
exhibited as Ex. Ka-14 and Ex. Ka-13
respectively; PW-7 Sub-Inspector V.P.
Singh is the Investigating Officer of Case
Crime No.94 of 2006, under Section 25 of
the Arms Act, he proved the various stages
of investigation of that case with which we
are not concerned in the present appeal as
the appellant has been acquitted in that case
and no Government Appeal against the
order of acquittal has been filed by the
State. Similarly, testimony of PW-8 - Head
Constable Jai Prakash, who is a witness of
recovery of country made pistol/ cartridge,
is not relevant in the context of the present
appeal as the appellant has been acquitted
of the charge under section 25 of the Arms
Act.

8. The report of forensic laboratory,
U P, at Agra was obtained in respect of
blood stained earth / plain earth lifted
from the spot; and also the clothes worn
by the deceased worn at the time of
incident.
The
report
(Ex.
Ka-20)
indicated that on the blood stained
articles there was presence of blood
though its origin, due to disintegration,
could not be determined in the soil;
whereas, in the clothes sent for forensic
examination presence of human blood
was found.

9. Incriminating materials appearing
in the prosecution evidence were put to
the accused for recording his statement
under Section 313 CrPC. The accused
denied his involvement in the crime;
claimed that the recovery of country
made pistol at the time of arrest is false.
A defence witness, namely, Bashir, was
examined to discredit the recovery and
arrest at the date and time alleged, which
we do not propose to address as the
appellant has been acquitted of the charge
under section 25 of the Arms Act.

10. The trial court after considering
the prosecution evidence found that the
prosecution was successful in proving the
charge of offence punishable under
Section 302 read with Section 34 IPC but
failed to prove the charge under Section
25 of the Arms Act.

11. As the current appeal is limited to
questioning the conviction and sentence
recorded by the trial court under Section
302 read with Section 34 IPC in Sessions
Trial No.544 of 2006, learned counsel for
the parties have confined their submissions
in respect thereof.

Submissions on behalf of the Appellant

12. Sri Mohd. Samiuzzaman Khan,
learned counsel for the appellant, submitted
as follows :

(a) It is a case where there is a
solitary
eye-witness
to
support
the
prosecution case as against the appellant
because the other two eye-witnesses,
namely, PW-2 and PW-3, have not
supported the prosecution case therefore,
unless and until the testimony of solitary
eye-witness
is
of
an
unimpeachable
character and is wholly reliable, conviction
ought not to be based on the same. He
submits that in so far as PW-1 is concerned,
if his testimony is read as a whole it would
suggest that as soon as the assailants were
spotted, the deceased alighted from the
motorcycle to run away from the spot and
PW-1 escaped on his motorcycle therefore,
PW-1 had no opportunity to witness the
incident. The presence of PW-1 is also
doubtful for the reason that, according to
him the deceased was not well and had no
370 INDIAN LAW REPORTS ALLAHABAD SERIES
food intake since the morning whereas the
autopsy report suggested presence of food
material in the stomach, which means that
PW-1 and the deceased were not together.
The statement of PW-1 that he had gone to
fetch medicines with the deceased is not
truthful because PW-1 could not disclose
the shop from where medicines were
purchased. Moreover, PW-1 could not
disclose the reason as to why they took a
turn to the spot where they were attacked
by the accused party. Absence of reason to
take a turn to reach the place of incident
also suggests that PW-1 was not with the
deceased at the time of the incident.

(b) PW-3, though discloses the
presence of Harvir as one of the assailants
amongst the three who attacked the
deceased with firearms but, does not
disclose the presence of the appellant at the
spot therefore, there is a doubt with regard
to the participation of the appellant in the
incident.

(c) According to PW-1 after
lifting the DBBL gun that fell on the spot,
Iliyas fired two DBBL gunshots on the
abdomen of the deceased but there appears
single gunshot wound on the abdomen.
Thus, the ocular account rendered by PW-1
being in conflict with medical evidence is
unworthy of acceptance.

(d) PW-2, who has been declared
hostile in his cross-examination has stated
that Raees Khan (deceased) was chased by
few miscreants who killed him. This
suggests that some unknown persons
committed the crime.

(e) From the statement of PW-1,
it appears, within twenty minutes of the
incident the police had arrived at the spot
and one Gaus Mohammad had gone to
inform the police, which suggests that the
first information report was not lodged at
the first opportunity but was lodged much
later, which renders the presence of PW-1
at the spot doubtful.

(f) Summing up his submissions,
learned counsel for the appellant submitted
that this is a case where unknown assailants
killed
the
deceased
and
the
first
information report was lodged by guess
work on past enmity and political rivalry
and therefore, it is a fit case where the
appellant should be extended benefit of
doubt more so when he has been acquitted
of the charge under section 25 of the Arms
Act.

Submissions on behalf of the State

13. Per contra, learned AGA submits
that this is a case where the occurrence took
place in broad day light; the first information
report was promptly lodged; the inquest was
conducted on the same day and the inquest
papers reveal that the case had been registered;
there is no dispute or challenge to the spot
where the occurrence took place; no suggestion
has been put to PW-1 that he was not with the
deceased at the time of the incident and even
PW-3, declared hostile, has disclosed that PW-1
and the deceased were seen together at the spot
therefore, there is no doubt as to the presence of
PW-1 at the spot; the ocular account finds
support from the medical evidence which not
only suggests that the incident could have
occurred on or about the time when it is stated
to have occurred by the prosecution but also
that the injuries were sustained by the deceased
in the manner suggested by the prosecution and
from three weapons, suggesting participation of
three assailants as is the prosecution story. It
was submitted that although it might not have
been disclosed as to for what purpose the
deceased and PW-1 were there at the spot when
3 All. Munawwar Vs. State of U.P.
371
they were attacked but that, by itself, is not a
ground to disbelieve the ocular account because
neither suggestion has been put to the eyewitness to challenge the spot where the incident
occurred nor suggestion is there to challenge the
presence of PW-1 at the spot. Further, mere
presence of semi-digested food in the stomach
of the deceased would not render the presence
of PW-1 doubtful as it is possible that PW-1
might not have been aware with regard to
consumption of food article by the deceased
before they had left their house. In so far as the
statement of PW-2 is cornered, in his crossexamination,
he
stated
that:
"MAIN
NISHCHIT RUP SE NAHI KAH SAKTA KI
FAYAR KARNE WALON ME ILIYAS,
HARVIR, MUNAWWAR ME KOI THA YA
NAHI", which means that, firstly, he admits the
incident, and, secondly, he is not sure with
regard to the presence or absence of the accused
persons at the spot. He submits that, under the
circumstances, the testimony of PW-2 cannot
be utilised to discredit the testimony of PW-1
and, similarly, the testimony of PW-3 cannot be
utilised to discredit the testimony of PW-1
because PW-3 also discloses participation of
three persons though, out of them, he could
recognise only Harvir as the other two were not
known to him. Seen in that context, rather, both
PW-2 and PW-3 support the prosecution story
with regard to the manner in which the incident
occurred as narrated by PW-1 and their
testimony corroborates the statement of PW-1
to that extent and also certifies his presence at
the spot. Learned AGA therefore submits that
this is a case where the prosecution has been
able to prove the charge against the appellant
beyond reasonable doubt hence the appeal is
liable to be dismissed.

Prosecution evidence

14.

Having
noticed
the
rival
submissions, before we proceed to assess
and appreciate their respective merit, it
would be apposite to notice the testimony
of the prosecution witnesses in some detail.

15. PW-1 is the brother of the
deceased and the informant of the case. He
states specifically that he knew the accused
Munawwar (the appellant) as he used to
visit PW-1's village. PW-1 also states that
he knows the other two co-accused Iliyas
and Harvir, who have been killed in police
encounter. There is no challenge to this part
of PW-1's testimony. In respect of the
incident, PW-1 states that he and his
brother - the deceased (Raees Khan) had
gone to Sangrampur to fetch medicine as
his brother -the deceased was not feeling
well. While they were returning on a
motorcycle, which was being driven by
PW-1, the deceased, who was a pillion
rider and holding the licensed DBBL gun
of the informant, on reaching village
Sirsawar, told PW-1 to take a turn to visit
Bahoran. As soon as PW-1 took the turn
towards Bahoran's house, near Chhavi Lal's
house, they were spotted by the accused
Iliyas, Harvir and Munawar (appellant)
who came in front of the motorcycle and
shouted that they had been in search for
them (the victims) and therefore the victims
be not let off. Seeing the accused persons,
the victim (Raees Khan) jumped off from
the motorcycle and ran; in that process, the
DBBL gun which he was carrying fell off
his shoulder, which was picked up by coaccused Iliyas. Raees Khan (victim) to save
himself ran towards the house of Sardar
Mewa whereas the three accused chased
him and fired at him and, after surrounding
him killed him in front of the house of
Sardar Mewa. PW-1 stated that Iliyas fired
from the DBBL gun which he had picked
from
the
spot
whereas
Harvir
and
Munawwar fired from their respective
country made pistols. PW-1 stated that the
incident was also witnessed by Shamshad
372 INDIAN LAW REPORTS ALLAHABAD SERIES
(PW-2)
and
Rahmat
Khan
(PW-3).
Elaborating upon his narration of the
incident, PW-1 stated that on being
challenged by the villagers, the accused
persons escaped towards the east by
leaving the DBBL gun at the spot. PW-1
stated that the first information report of the
incident was scribed by Hasan Khan on
which he had put his thumb impression
after the same was readout to him and
understood by him. He proved the written
report, which was marked as Ex .Ka-1.
PW-1 also stated that the police had arrived
at the spot and conducted inquest; the
report of which, bears his signature. PW-1
also stated that the DBBL gun was handed
over to the police by him at the spot of
which custody was handed over to PW-1
and a recovery / custody memo (Ex . Ka-2)
was prepared.

In his cross-examination, PW-1
stated that the distance of his house from
the place of occurrence is about 3-4 kms or
may be 1.5 - 2 kms. He could not tell the
name of the Doctor from whom the
deceased took medicine at Sangrampur
because he was sitting outside the Doctor's
shop. PW-1 stated that the deceased had
been a Pradhan for three months. He
admitted that the accused Munawwar's vote
did not fall in his constituency. He stated
that he does not know the name of the
father of Munawwar but he knows
Munawwar from before. On further crossexamination, he stated that PW-1 and his
brother had left home at about quarter to 3
pm to take medicine; and as the deceased
was having fever, he had not consumed any
food material since the morning though,
had consumed tea in the morning at about
8.00 a.m. On being questioned whether
money for the medicines was paid by the
deceased, PW-1 stated that the deceased
had money. In respect of arrival of the
police at the spot, PW-1 stated that the
police arrived at the spot in twenty minutes.
Gaus Mohammad, a fellow villager, took
PW-1's motorcycle to inform the police.
Investigating Officer upon arrival stayed
there for about half an hour and inspected
the spot, sealed the body of the deceased
and took the body to Chowki Davtari where
it was kept overnight. He reiterated that he
had lodged the report on the date of
occurrence and that report was written in
the village where the incident took place.
He also stated that when I.O. had left the
place he had got the report (Ex .Ka-1)
written and had it lodged at the police
station.

In respect of the presence of
Shamshad (PW-2) and Rahmat (PW-3) at
the spot he stated that they were present at
the spot to take delivery of a buffalo. In
respect of the arrival of Hasan Khan, scribe
of the first information report, he stated that
he arrived twenty minutes later. He stated
that
the
distance
between
Bahoran's
Chabutara and the spot where the deceased
was surrounded is about 30 paces. He
further stated that at the time when shots
were fired, the witnesses were sitting on the
Chabutara. He stated that he had pointed
out to the I.O. the place of the incident.

On
further
cross-examination,
PW-1 stated that the deceased after
alighting from the motorcycle must have
ran 50 paces. He stated that on or about the
spot there are houses all around and many
people had witnessed the incident. In
respect of the nature of the weapons used to
cause injury, PW-1 stated that his licensed
DBBL 12 bore gun was picked up from the
spot and used by accused Iliyas to fire two
shots at the abdomen of the deceased; and
the remaining two accused had fired from
.315 bore country made pistol. On further
3 All. Munawwar Vs. State of U.P.
373
cross-examination, at one place, PW-1
stated that as soon as Raees Khan (the
deceased) jumped off the motorcycle and
ran, he escaped on his motorcycle and
returned back after collecting men from his
village and by the time he returned, he
found
Raees
Khan
lying
dead.
Immediately, after stating as above, PW-1
clarified that Raees Khan was shot in his
presence. This portion of PW-1's statement
is extracted below: "JAISE HI RAEES
KHAN MOTORCYCLE SE UTARKAR
BHAGE MAI MOTORCYCLE LEKAR
BHAG GAYA. GAON PAHUNCHKAR
LOGON
KO
LIWAKAR
LAYA.
JAB
LAUTKAR AYA TO RAEES KHAN MARE
PADE THE. RAEES KHAN KE FAYAR
MERE SAMNE MARE THE".

On being questioned about the
distance from which shots were fired, PW-1
stated that the distance between the deceased
and the accused at the time when shots were
fired at the deceased must have been 2 - 4
paces. He also stated that when his brother
ran towards the Chhappar of Sardar Mewa,
there also, he was shot at. PW-1 clarified that
one shot was fired while the deceased was
running and two were fired when he fell near
the Chhappar. He added that after running
about 50 paces the deceased fell. He stated
that the deceased ran towards north and the
accused chased him from south. PW-1 stated
that when the deceased was running he was
shot at the chest region by .315 bore pistol.
He also stated that where the deceased fell,
blood had spilled there. He added that the
deceased was wearing slippers and while
running his slippers slipped away, which
were later lifted by the police. He denied the
suggestion that the deceased was killed by
unknown assailants.

16. PW-2 Shamshad, who was
declared hostile, stated that he had not
witnessed
the
murder.
When
the
prosecution
cross-examined
him
and
confronted him with his statement under
section 161 CrPC, he denied having given
any such statement. But, stated that Harvir,
Iliyas
and
Munawwar
are
hardened
criminals and that Iliyas and Harvir have
been killed in police encounter. PW-2,
however, denied the suggestion that he is
not disclosing the truth because he is afraid.

On being cross-examined by the
defence, he stated that the police had
searched the body of the deceased in his
presence and had found a 12 bore pistol in
a broken condition. He added that the
police arrived after an hour of the incident.
He further added that the first information
report was written by Hasan Khan on his
dictation and when the report was being
written, the informant was outside the
police station. He added that Munnawar
used to look after agricultural work of
Raees and Raees had dues payable to
Munnawwar. He stated that miscreants use
to visit Raees and he saw few miscreants
chasing the deceased (Raees) and firing at
him upon which, the villagers returned fire
and in that exchange of fire the deceased
died. He further stated that he cannot with
certainty say that Iliyas, Harvir and
Munawwar were not amongst them who
fired at the deceased.

17. PW-3 Rahmat Khan stated that he
knows Harvir but does not know Iliyas and
Munawwar.
He
stated
that
he
and
Shamshad had gone to purchase buffalo at
village Sirsawar where they met Jalaluddin
(PW-1) and Raees Khan (the deceased). He
stated that in his presence Harvir and two
of his associates had killed the deceased.
He stated that except Harvir he was not
able to identify the other two accused. He
stated that he had not seen the present
374 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant (Munawwar) at the spot. He also
stated that he had not seen Munawwar
firing at the deceased.

At this stage, the witness was
declared hostile by the prosecution and was
cross-examined. On being confronted with
the statement recorded under Section 161
CrPC, he denied having given any such
statement and he also denied the suggestion
that he has resiled from his earlier
statement because of fear.

18. PW-4 proved the autopsy report,
the contents of which have already been
noticed above. He stated that there were
three gunshot wounds of entry and the
dimensions of injury no.7 indicated that it
was from a different weapon though, in
respect of other injuries, he could not tell
whether they were from different firearms.
He stated that death could have occurred on
or about 3.30 p.m. on 03.01.2006 though,
the estimated time of death could vary by
six hours either side. He also stated that
stomach of the deceased contained 75 gms
of semi-digested food material suggesting
that he may have eaten 2.30 hours to 5.00
hours before his death.

19. PW-5 Hariram Nimla is the
Investigating Officer who proved various
stages of investigation already noticed
above including preparation of site plan at
the pointing out of the informant which
tallied with what he saw at the spot. In
cross-examination, he stated that he does
not clearly remember whether he visited
the spot with the informant though, as far
as he remembers, he directly visited the
spot. He stated that he did not record the
statement of the Doctor at Sangrampur and
he also did not record the statement of
Bahoran. He also stated that from the body
of the deceased he did not recover any
medical parcha (prescription) or medicines
and that from deceased's body except for
the clothes that he had worn nothing else
was recovered. He stated that in the site
plan he had not shown the place where the
accused
were
standing
because
the
deceased was shot while he was running
and the accused were chasing him. He also
stated that at the time of the incident there
was none present in the house of Sardar
Mewa. He denied the suggestion that at the
time when the investigation started the sun
had set.

In respect of taking possession of
the gun and handing it back to the
informant, PW-5 stated that he is not sure
whether the informant had come with the
gun at the police station. Then he stated
that the gun was produced before him at the
time of inquest. He did not rule out the
possibility that the gun might have been
discovered lying at the spot after the
informant had arrived at the police station
to lodge the report. He reiterated that the
informant had come to the police station to
lodge the report but had not asked the
informant with whom he left the body
because it is natural to expect that family
members of the deceased would have had
arrived at the spot. PW-5 stated that he had
inspected the gun, which had no empty
cartridge, and that, at the spot, he did not
discover empty cartridge.

In
respect
of
collecting
information about the motor cycle, PW-5
stated that he did not collect any
information in respect thereof.

In respect of the case under
section 25 Arms Act, he stated that he had
got the first information report of that case
registered but he did not investigate that
case. He denied the suggestion that the
3 All. Munawwar Vs. State of U.P.
375
accused-appellant was arrested on same
day. On recall, he produced clothes etc.
which the deceased had worn at the time of
the incident, which were marked material
exhibits.

20. PW-6 Rajesh Kumar proved
registration of the first information report
and denied the suggestion that the first
information report was lodged after the
post-mortem.

21. PW-7 Sub-Inspector V.P. Singh
proved the various stages of investigation
of Case Crime No.94 of 2006 under
Section 25 of the Arms Act and submission
of the charge-sheet in that case. Note : As
the appellant has been acquitted of the said
charge, we do not propose to notice his
testimony.

22. PW-8 Head Constable Jai Prakash
sought to prove the recovery of the country
made
pistol
from
the
appellant
in
connection with Case crime No.94 of 2006
under Section 25 of the Arms Act. Note :
As the appellant has been acquitted of the
said charge, we do not propose to notice
his testimony.

Analysis

23. Having noticed the entire
prosecution evidence and the submissions
advanced by the learned counsel for the
parties, we notice that the thrust of the
submissions of learned counsel for the
appellant is on following aspects : (a) that
PW-1 was not present with the deceased at
the time of occurrence; (b) that even if PW1 was present with the deceased at the time
of the incident, as soon as the deceased
alighted from the motorcycle, PW-1
effected his escape and therefore, he cannot
be considered an eye-witness of the
incident; and (c) the incident did not occur
in the manner alleged as from the statement
of PW-2 it appears that there were some
unknown assailants along with named
accused Harvir and that the villagers had
also fired at the assailants and in that
exchange of fire, the deceased was killed.

24. Before we embark upon to
analyse the submissions, it would be useful
to notice the key features of the prosecution
case on which there appears no serious
challenge. These are: (i) the place of the
incident i.e. the spot where the incident
occurred as depicted in the site plan, which
has been duly proved and exhibited and
also finds support from oral testimony; (ii)
the time of the incident; and (iii) that the
deceased suffered a minimum of three gun
shot wounds of entry and exit which
communicate with each other. In fact, there
is no challenge to the autopsy report which
also notices that 17 metallic pellets were
recovered from the body of the deceased.

25. We have carefully scrutinised the
testimony of witnesses of fact. From the
testimony of PW-1, we notice that he was
with the deceased as a driver of the
motorcycle on which the deceased was a
pillion rider holding the licensed DBBL
gun of the informant on his shoulder. When
the accused party spotted them and
launched an attack, the deceased jumped
off from the motorcycle and ran towards
the Basti (places where houses are located).
The deceased was chased and fired at by
the assailants and when he fell, after
running few paces, near Sardar Mewa's
Chhhappar, he was surrounded and killed.
The site plan of the spot (Ex. Ka-9)
prepared by the I. O. discloses spot 'B' on
the Khadanja (a path laid by bricks) road
where the motorcycle of the deceased,
coming from east, stopped and the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased jumped off the motorcycle to run
and escape the assailants, who were coming
from the west. This spot B is at a junction
where the village Basti Gali (narrow lane)
coming from north meets the Khadanja
road. As the accused were right in front of
the victim party, the deceased ran in that
Gali of the village, perhaps to have safety
of people around him, but, he was chased
by the assailants. The deceased ran towards
north west in that Gali where he was
cornered and killed at the Chhappar of
Sardar Mewa.

26. From the testimony of PW-1, it
appears, one shot was fired at the deceased
while he was either running or about to run
and the remaining two shots were fired
when he had reached the Chhappar of the
house of Sardar Mewa at the end of that
Basti Gali. When we notice the autopsy
report, we find that there is an entry wound
on the right side of back chest. There is
also an entry wound on front side of chest
and there is an entry wound on the
abdomen. The entry wound of the abdomen
is of much larger dimension and appears to
be a result of .12 bore weapon whereas the
other
entry
wounds
are
of
lesser
dimensions. The Doctor also disclosed that
the injuries could have been caused by
different weapons. The ocular account
narrated by PW-1 also discloses use of
three weapons. Learned counsel for the
appellant submits that the ocular account is
specific in respect of causing two gunshot
injuries with DBBL gun on the abdomen
region whereas there is single gunshot
injury on the abdomen and therefore it
appears that the PW-1 had not witnessed
the incident.

27. When an incident of the nature as
is in the instant case occurs, graphic
description of each and every detail with
regard to each part of the incident is
humanly not possible and therefore what is
to be ascertained is whether the incident
was actually witnessed or not by the person
who seeks to prove its occurrence and
whether the ocular account is corroborated
with other evidences. In the instant case,
we find that there is virtually no suggestion
to PW-1 to challenge his presence with his
brother at the time of the incident. Even the
other two witnesses who were declared
hostile have not denied the presence of
PW-1 at the spot and have not disputed the
spot. The argument that PW-1 made an
incorrect statement that the deceased had
not consumed any food since the morning
therefore, he had not been with the
deceased is also liable to be rejected.
Because, according to PW-4's opinion, the
deceased had consumed some food material
2.30 to 5.00 hours before his death.