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

- **Citation:** (2021) 10 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-07
- **Case number:** Criminal Appeal No. 2667 of 1988
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nizam-in-jail-v-state-of-u-p-46210
- **Pages:** 9

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code,1860-Section 302-challenge
to-conviction-witnesses PW-1, PW2, PW3
statement corroborated by the medical
evidence-accused stabbed the deceased
with knife-knife was recovered at the
instance of accused from the chappar of
co-accused-knife
was
blood
stainedreport
of
forensic
examination
corroborates
the
prosecution
casestatement of deceased reliable u/s 32 of
The evidence act- prosecution evidence
proves the guilt of the accused-no
illegality in the findings recorded by the
trial court.(Para 1 to 18)

B. Circumstantial evidence-Where the
evidence is of a circumstantial nature,
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
in the first instance be fully established,
and all the facts so established should be
consistent only with the hypothesis of
the guilt of accused. there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused. the instant case is based on
ocular testimony, not on circumstantial
evidence.(Para 16)

C. It is settled principle of law that
oral testimony of a witness cannot be
outrightly
rejected
merely
on
the
ground that he is an interested or
related witness. it requires cautious
scrutiny. Some minor contradictions or
discrepencies are natural but if they
inspire confidence, the statements of
witnesses
cannot
be
discarded
on
some minor contradictions. (Para 13)
(E-6)

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES
attested identity proof of the said persons
(preferably Aadhar Card) mentioning the
mobile number (s) to which the said
Aadhar Card is linked before the concerned
Court/Authority/Official.

25.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A118
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 2667 of 1988

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

Counsel for the Appellant:
Sri Lal Ji Chaudhary A.C.

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code,1860-Section 302-challenge
to-conviction-witnesses PW-1, PW2, PW3
statement corroborated by the medical
evidence-accused stabbed the deceased
with knife-knife was recovered at the
instance of accused from the chappar of
co-accused-knife
was
blood
stainedreport
of
forensic
examination
corroborates
the
prosecution
casestatement of deceased reliable u/s 32 of
The evidence act- prosecution evidence
proves the guilt of the accused-no
illegality in the findings recorded by the
trial court.(Para 1 to 18)

B. Circumstantial evidence-Where the
evidence is of a circumstantial nature,
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
in the first instance be fully established,
and all the facts so established should be
consistent only with the hypothesis of
the guilt of accused. there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused. the instant case is based on
ocular testimony, not on circumstantial
evidence.(Para 16)

C. It is settled principle of law that
oral testimony of a witness cannot be
outrightly
rejected
merely
on
the
ground that he is an interested or
related witness. it requires cautious
scrutiny. Some minor contradictions or
discrepencies are natural but if they
inspire confidence, the statements of
witnesses
cannot
be
discarded
on
some minor contradictions. (Para 13)
(E-6)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Lal Ji Chaudhary,
learned Amicus Curiae for the appellant,
learned A.G.A. for the State and perused
the record.

2. This criminal appeal has been filed
against the judgment and order dated
16.11.1988 passed by Ist Additional
Sessions Judge, Aligarh in Session Trial
No. 70 of 1987 and connected Session Trial
No. 659 of 1987 convicting and sentencing
the appellant to undergo life imprisonment
under section 302 IPC.
10 All. Nizam Vs. State of U.P.
119

3. In brief the prosecution case is that
complainant Sultan gave an application
dated 16.5.1986 at P.S. Harduwaganj
alleging therein that on 15.5.1986 at 8:35
P.M. his younger brother Saddiq has gone
to fetch bidi from the shop situated beneath
the mosque. When he was coming back and
reached near the house of Mazhar Husain,
then
Nizam
resident
of
Jalali,
P.S.
Harduwaganj who is a bad character and
criminal and Saddiq used to desist him
from such acts, stabbed Saddiq with knife.
On cries of Saddiq complainant, Shakir,
Shabbir and other persons came there and
Nizam ran away. When Saddiq was taken
to hospital he died there. Before his death
Saddiq has said that Nizam has inflicted
knife blows on him.

On the aforesaid information Case
Crime No. 96 of 1986, under section 302 IPC
was registered against accused Nizam.
Investigation of the case was conducted by
S.I. Dal Chand. The inquest proceeding of the
dead body was conducted and related papers
were also prepared and body was sealed and
sent for postmortem examination. The
Investigating Officer recorded the statements
of complainant and other witnesses, visited
the place of occurrence and prepared the site
plan. Accused Nizam was arrested by the
police station Quarsi, District Aligarh and on
his interrogation by the Investigating Officer
he disclosed that the knife used in the
incident has been concealed by him and at his
instance on 19.5.1986 at 8:00 P.M. one knife
with blood stains was recovered from the
''Chhappar' in the house of Nanna, the
maternal uncle of accused Nizam. Memo was
prepared and knife was sealed and sent for
forensic examination. Nanna was also
implicated
as
an
accused
and
after
completion of investigation separate chargesheet under section 302 IPC was filed against
Nizam and Nanna.

Two session trial nos. 70 of 1987
and 659 of 1987 committed to the court of
session were consolidated.

The trial court framed charge under
section 302 IPC against accused Nizam and
under section 302/34 IPC against accused
Nanna.

The
prosecution
produced
7
witnesses who have proved 9 prosecution
papers Ex. Ka-1 to Ex. Ka-9 and one material
Exhibit (Knife). Statements of accused under
section 313 Cr.P.C. were recorded in which
they denied the prosecution case and
statements of witnesses. Accused Nizam has
also said that witnesses are deposing against
him due to enmity. One defence witness
Aharpal Singh, Junior Engineer has been
produced as D.W. 1. The learned trial court
by the impugned judgment has convicted
accused Nizam under section 302 IPC and
sentenced him to life imprisonment while
acquitted accused Nanna from the charge
under section 302/34 IPC.

4. The conviction of accused Nizam is
under consideration in this appeal.

5. Postmortem of deceased Saddiq has
been conducted on 16.5.1986 at 5:00 P.M.
by Dr. I.H. Qureshi who has appeared as
P.W. 5 and has proved the postmortem
report as Ex. Ka-12.

According to postmortem report
the age of the deceased was about 45 years.
In external examination Average built
body, rigor mortis was present in both
upper and lower extremities, eyes closed,
mouth
half
open,
abdomen
slightly
distended, no signs of decomposition.
Following ante mortem injuries were
present on the body of the deceased:

1. Incised wound 11⁄2 cm. X 1⁄2 cm
x muscle deep on the right side chest, 1 cm.
above right nipple.
120 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Incised wound 5 cm. X 11⁄2 cm.
X chest cavity on the right side lower chest,
11 cm. below right nipple.

3. Incised wound 4 cm. X 11⁄2 cm.
X abdomen cavity on the left side upper
abdomen, 12 cm. above umbilicus.

4. Incised wound 31⁄2 cm. X 1 cm
x abdomen cavity on the left side upper
abdomen, 11⁄2 cm. behind injury no. 3.

5. Incised wound 5 cm. X 11⁄2 cm.
X muscle deep on the middle of abdomen,
11⁄2 cm. below the umbilicus.

6. Incised wound 3 cm. X 11⁄2 cm.
x abdomen cavity on the right side lower
abdomen, 3 cm. above right anterior
superior iliac spine.

on
internal
examination
peritonium was lacerated. In the cavity of
abdomen 11⁄2 pint partially clotted blood
mixed with faecal matter was present.
Stomach was lacerated at two places. Small
intestine was lacerated and gases and fluid
were present. Large intestine was lacerated
and gases and faecal matter were present.
Pancreas was lacerated on upper part. Gall
bladder was half full . Bladder was half full
of urine.

In the opinion of doctor the death
was due to shock and haemorrhage as a
result of ante mortem injuries and duration
of death was about one day. Dr. I.H.
Qureshi has also said in his examination in
chief that the injuries of the deceased may
come on 15.5.1986 at 8:35 P.M. with knife
and these injuries were sufficient to cause
death.

6. To prove its case the prosecution
has produced 7 witnesses out of which 3
are public witnesses. Saira (P.W. 1) is the
daughter of deceased. In her examinationin-chief she has said that incident is of 1
year and 20 days earlier. It was 8:30 P.M.
she with her mother was sitting on the roof
of her house at Jalali. At that time she was
unmarried. The shrieks of her father were
heard from street beneath. She and her
mother peeped down from the roof and saw
that Nizam was stabbing his father. Two
other persons were keeping him down and
a third one was standing. She did not
recognize any of these three. She and her
mother came down. Accused Nizam said
accosting her father that he was in habit of
making complaint against him to the police.
Her father has also told her and her mother
that Nizam has stabbed him with knife and
three persons were also with him. Shakir,
Sultan and Shabbir also reached there. Her
father died on the spot.

7. Nanhi (P.W. 2) is the wife of the
deceased. In her examination-in-chief she
has said that incident is of one year and one
month earlier. It was 8:30 P.M. she was on
the roof of her house with her daughters
Saira and Aisha. She heard cries from the
street then she peeped from the roof and
came down from the roof where she saw
Nizam holding a knife in his hand. Three
persons were also with him. Her husband
was lying injured on the ground. Nizam
was saying that he was informant of the
police and used to complain against him.
She has also saw Nizam stabbing her
husband with knife. There was light of the
electric bulb in the street due to Ramzan.
At the time of occurrence her brother-inlaws (Dewar) Shakir and (Jeth) Shabbir and
Sultan also came there. Her dewar and Jeth
carried her husband to the hospital but he
died on the way.

8. Sultan (P.W. 3) is the complainant
and brother of the deceased. In his
examination-in-chief he has said that his
brother Saddiq was murdered more than a
year ago. He got the report of this incident
scribed by Om Niwas, who wrote it on his
dictation and after hearing it he put his
10 All. Nizam Vs. State of U.P.
121
thumb impression on it and submitted it at
police station Harduwaganj. Witness has
proved the report as Ex. Ka-1. In his crossexamination the witness has also given the
eye witness account of the incident and has
said that he himself has seen the accused
stabbing Saddiq with knife and thereafter
he ran away.

9. S.I. Dal Chand (P.W. 4) is the
Investigating Officer. The witness has
stated that he reached at the place of
occurrence on 15.5.1986 at 9:00 P.M. He
has received the information at police
outpost. The dead body of the deceased
was near bus stand Jalali. The relatives of
the deceased have carried him to the
hospital and were returning from there
because of his death. He has further stated
that he got the copy of chik report on
16.5.1986,
conducted
the
inquest
proceedings of the dead body and prepared
the related papers, sealed the dead body
and sent it for postmortem examination.
Recorded the statements of other witnesses.
This witness has further stated that on
19.5.1986 he got the information that
accused Nizam has been arrested by police
station quarsi then he proceeded for police
station quarsi and recorded the statement of
accused Nizam and at his instance
recovered the knife which was blood
stained and used in the murder of Saddiq
from the Chhappar of co-accused Nanna.
He prepared the memo and also prepared
the site plan of the said place of recovery.
After
completing
the
investigation
submitted the charge-sheet.

10. Head constable Liyaqat Ali (P.W.
6) is the formal witness who has prepared
the chik and G.D. and has proved the
documents. Constable Sukhram Singh
(P.W. 7) is also a formal witness who has
stated that the dead body was handed over
to him by S.I. Dal Chand and he carried it
for postmortem examination.

11. Saira (P.W. 1) and Nanhi (P.W. 2)
have given the eye witness account of the
incident. They have said that they were on
the roof of their house and on hearing noise
and shrieks from the way (Rasta) they
peeped down and saw accused Nizam
stabbing Saddiq with a knife. They came
down, then they heard Nizam saying that
he (deceased) used to complain to the
police. They have further said that they saw
Nizam stabbing Saddiq with knife. Shakir,
Shabbir and Sultan also came there. In the
site plan Ex. Ka-8 the place of occurrence
has been shown with sign X ''A' in the
Rasta in front of Baithak of the house of
Mazhar Husain. The house of the deceased
is in its west after the house of Chandrapal.
The
distance
between
the
place
of
occurrence and the house of deceased is not
shown in the site plan but the Investigating
Officer S.I. Dal Chand (P.W. 4) in his
cross-examination has said that distance
between house of deceased and X ''A' is 6
paces. So the place of occurrence is near
the house of deceased and the witnesses
have said that on shrieks they peeped down
from their roof and saw the accused Nizam
stabbing Saddiq. Witnesses have further
said that they came down in the Gali and
saw the accused stabbing Saddiq. As the
place of occurrence is near the house of
witnesses their presence and seeing of
occurrence is natural and probable. It has
also come in the evidence that incident is of
Ramzan and after Iftar and Maghrib prayer
the witnesses have come on the roof of the
house. The incident is of the month of mid
May the summer season, so it is also
probable that after Iftar and offering prayer
the witnesses may have come on their roof
to relax. Although these witnesses are the
daughter and wife of the deceased and
122 INDIAN LAW REPORTS ALLAHABAD SERIES
hence related and interested witnesses but
considering the aforesaid facts it does not
matter because their presence at the place
of occurrence is natural and probable. It has
also come in the evidence that in the east of
the house of the deceased Rasta is slightly
deviated so there may be a possibility that
place of occurrence may not be visible
from the roof of the house of the deceased
but this fact has been categorically ruled
out by the Investigating Officer S.I. Dal
Chand (P.W. 4) in his cross-examination.
The defence has put a specific question on
this point and the witness in answer of that
question has said that he himself has
peeped down from the roof of the house of
the deceased Saddiq and verified that place
of occurrence was visible from there. So
the oral statements of P.W. 1 Saira and
P.W. 2 Nanhi also got corroboration from
the aforesaid statement of Investigating
Officer. The name of Saira and Nanhi are
not mentioned in the FIR as witnesses but
this fact has also been explained by the
complainant Sultan (P.W. 3) in his crossexamination. He has said that he has
written name of Shakir and Shabbir as
witnesses in the report. He has also seen the
wife of deceased at the place of occurrence.
The daughter of deceased was also present
there. He has not written the name of ladies
in the report because he does not want that
female members of the family should go in
the court. So the explanation of absence of
the names of witnesses Saira and Nanhi in
the FIR as given by the complainant Sultan
(P.W. 3) is also sufficient and this fact also
does not affect the reliability of these
witnesses. Sultan (P.W. 3) in his crossexamination has said that he himself has
seen the occurrence. He has specifically
said that he has seen Nizam stabbing his
brother Saddiq with knife. In the FIR it is
mentioned that on the shrieks of Saddiq he,
Shakir and Shabbir reached there and seen
the accused Nizam running away. In the
FIR it is alleged that on hearing the shrieks
of his brother when he, Shakir and Shabbir
and others reached there Nizam ran away
from there. So from the allegation of the
FIR it appears that witness Sultan (P.W. 3)
saw Nizam running away from the place of
occurrence. He may have not seen the
incident but he reached at the place of
occurrence at the very moment and saw his
brother in injured condition and Nizam
running away from there.

12. Learned counsel for the appellant
contended that the incident is of 8.30 P.M.
Witnesses Saira (P.W. 1) and Nanhi (P.W.
2) have said that they have seen the
occurrence in the light of electric bulb
fitted on a pole in the Rasta while in the
FIR there is no description of light of
electric bulb. Contrary to it in the FIR it is
mentioned
that
complainant
and
his
companion saw Nizam running away in the
light of torch. So the prosecution evidence
is contradictory and there are major
discrepancies regarding source of light.
Learned counsel further contended that the
defence has produced the evidence that at
the time of occurrence there was shut down
of electricity in Jalali town as the work of
changing of transformer was in progress.
So there was no source of light at the place
of occurrence. The incident is of darkness
so witnesses have no opportunity to see or
identify the accused and identification of
the accused is doubtful.

Learned A.G.A. submitted that in
the FIR complainant Sultan has mentioned
that he has seen the accused Nizam running
away in the light of torch while other
witnesses have said that an electric bulb
was on in the Rasta and they have seen the
occurrence in the light of electric bulb.
There is no contradiction between the two
10 All. Nizam Vs. State of U.P.
123
statements. Further Investigating Officer
has also shown the place where the electric
bulb was on by sign X ''B'. He further
contended that the documents produced by
Aharpal Singh (D.W. 1) have so many
discrepancies
which
the
witness
has
admitted in his cross-examination, so no
reliance can be placed on this evidence.

In the FIR it has been alleged that
Nizam was seen in the light of torch while
fleeing. It also appears from the perusal of
original Tahreer that this particular line is
an addition after completion of the whole
contents which makes it doubtful. So torch
as source of light is not reliable. The
witnesses Saira (P.W. 1) and Nanhi (P.W.
2) in their statements have stated that they
have seen the occurrence in the light of
electric bulb which was fitted on a wooden
pole on the Rasta. The Investigating Officer
in site plan Ex. Ka-8 has also shown this
with sign X ''B' and its height is mentioned
as 15 fit. In the site plan the distance
between place of occurrence and the
electric bulb is not shown but S.I. Dal
Chand (P.W. 4) in his cross-examination
has told this distance 8-9 paces. So it is
established
that
near
the
place
of
occurrence there was an electric pole fitted
with an electric bulb. Now the question
comes whether the electricity supply was
continued or disrupted at the time of
occurrence.

The
defence
has
produced
Aharpal Singh, Junior Engineer (D.W. 1)
who has said in his examination-in-chief
that on 15.5.1986 he was posted as Junior
Engineer in sub-station Akrabad and has
brought the log sheet register of 15.5.1986
which is maintained by Sub-Station Officer
Harpal Singh. He has further stated that
there were two feeders of sub-station. From
one feeder electricity was supplied to Gopi
while from the other it was supplied to
Akrabad and electricity supply to Jalali was
from Akrabad feeder. The witness has
further stated that according to entry of
Log-sheet register on 15.5.1986 both the
feeders were shut down at 18:10 because
transformer of sub-station was being
changed and Mr. Om Prakash of E.C.E.
Company has come for this work. Both the
feeders were again started at 21:30 after
change of transformer. He was present at
that time because he was incharge. Om
Prakash the representative of E.C.E.
Company signed it after restoration of
electricity. The witness has filed the copy
of log sheet register and has proved it as
Ex. Kha-2. From the examination-in-chief
of this witness coupled with the documents
produced by him it appears that there was
shut down of Akrabad feeder from 18:10 to
21:30 and there was no electricity in Jalali
town at 8.35 P.M. This witness in his crossexamination has admitted that there are
certain discrepancies in the log sheet
register produced by him. He has also
specifically said that there was supply of 3
phase light on that day from Akrabad and
Gopi feeders till 9:30 P.M. and two phase
supply was restored at 22 O'clock. The
above
statement
of
cross-examination
contradicts his statement of examinationin-chief that there was no electricity supply
from Akrabad feeder from 6.10 to 9.30
P.M. So the evidence produced by the
defence that at the time of occurrence there
was no electricity supply is not reliable.

Even if it is presumed that there
was no electricity supply at the time of
occurrence, it is clear from the evidence
that accused and witnesses were well
known to one another. It is not necessary
that a person could be identified only by his
face. A person can be identified through his
appearance, gestures and voice also. It is
also clear from the evidence that Saira
(P.W. 1) and Nanhi (P.W. 2) had the
opportunity to see the accused from
124 INDIAN LAW REPORTS ALLAHABAD SERIES
proximity. They have also heard his voice
as he uttered some words while stabbing
the accused. So they have full opportunity
to see and identify the accused even if there
was no light. Further it is not a case of one
or two stabbing and incident has not
occurred in a moment. 6 incised wounds
have been found on the body of the
deceased in the postmortem report. It
establishes that deceased was repeatedly
stabbed by the accused and it is not a case
of hit and run. The accused remained on the
spot for sometime and also made some
statements so there was ample opportunity
for witnesses to see and identify him. It is
also pertinent to mention that although FIR
has been lodged on the application of the
complainant on 16.5.1986 at 2:10 but the
perusal of the record reveals that prior to it
an oral information was given by the
complainant Sultan that his brother Saddiq
has been stabbed with knife by Nizam and
seriously injured and has been taken to
district hospital on a cot. This oral
information was entered in G.D. No. 16 at
21 O'clock on 15.5.1986. A copy of the
said G.D. is on record. It clearly establishes
that the information of the incident was
promptly given at the police station just
within half an hour of the incident by
Sultan, brother of the deceased and in this
information the name of the accused Nizam
has been mentioned as culprit. So the
involvement of the accused was certain
from the very beginning. Considering the
entire facts and evidence on the point it is
quite clear that there is no doubt about the
identification of the accused and hence,
source of light does not matter.

13. Learned counsel for the appellant
further contended that there are major
contradictions between the statements of
P.W. 1 Saira and P.W. 2 Nanhi. Saira (P.W.
1) in her cross-examination has said that
she fell down on the dead body of her
father and her clothes were stained with
blood. She has shown her clothes to the
sub-inspector. Clothes of her mother were
also blood stained. Her mother has also
broken her bangles at the dead body of her
father, while Nanhi (P.W. 2) in her crossexamination has said that she has not fell
down on the body of her husband. No
broken bangles have been found by the
Investigating Officer at the place of
occurrence. Further Saira (P.W. 1) in her
statement has stated that her father died on
the spot while Nanhi (P.W. 2) has stated
that her husband died on the way to the
hospital. Learned counsel also contended
that it has also come in the evidence that
incident has occurred in front of Baithak of
Mazhar Husain while people remain in
Baithak of Mazhar Husain till 11:00 P.M.
but no other independent/public person has
been made a witness nor examined. On
these grounds learned counsel submitted
that statements of Saira (P.W. 1) and Nanhi
(P.W. 2) who are related and interested
witnesses can not be relied on.

Learned A.G.A. contended that it
has come in the evidence that at the time of
occurrence no one was present in Baithak
of Mazhar Husain. It is also clear from the
evidence that the incident is of month of
Ramzan and people remain busy in prayers
at the relevant time. He further contended
that the contradictions or discrepancies in
the statements of Saira (P.W. 1) and Nanhi
(P.W. 2) are not of such a nature which
create doubt about their reliability. Some
minor contradictions or discrepancies are
natural so only on this ground the oral
testimony which is otherwise consistent can
not be disbelieved.

It is settled principle of law that
oral testimony of a witness can not be
outrightly rejected merely on the ground
10 All. Nizam Vs. State of U.P.
125
that he is an interested or related witness.
What is required is a cautious scrutiny.
Some minor contradictions or discrepancies
are natural in the statements of witnesses .
The contradictions or discrepancies as
pointed out by the learned counsel for the
appellant only indicate that witness Saira
(P.W. 1) has exaggerated some facts but the
testimony of the both the witnesses on
material points are consistent. If scrutinized
as a whole it inspires confidence and it is
established from their evidence that first
they have seen the occurrence from the roof
of their house and thereafter they came
down and saw it from beneath. They have
seen the accused stabbing Saddiq and they
have identified the accused. Their oral
testimony also stands corroborated by the
medical evidence on record according to
which 6 incised wounds have been found
on the body of the deceased and his death
has occurred due to ante mortem injuries.
The doctor has also confirmed the date,
time and weapon used in the incident. So
the oral statements of the witnesses are
reliable and can not be discarded on some
minor contradictions or discrepancies.

14. Besides the ocular testimony there
is another piece of evidence. All the 3
public witnesses Saira (P.W. 1), Nanhi
(P.W. 2) and Sultan (P.W. 3) have said that
Saddiq said to them that Nizam has stabbed
him with knife. It is also established from
the evidence that all these three witnesses
have reached at the place of occurrence, so
it also appears to be natural and probable
that Saddiq in injured condition had told
them the name of person who stabbed him.
This evidence is relevant Under Section 32
of the Evidence Act and is reliable.

15. Prosecution has also produced the
evidence of recovery of the weapon i.e.
knife used in the incident. Recovery has
been made by the Investigating Officer at
the instance of the accused at his pointing
out from the Chhappar of co-accused
Nanna. The knife was blood stained and
was sent for forensic examination. The
report of forensic examination is also on
record which confirms that the human
blood was found on the aforesaid knife.
The fact of the recovery has been proved
by S.I. Dal Chand (P.W. 3). This evidence
further corroborates the prosecution case.

16. Learned counsel for the appellant
placed reliance on citation of Hanuman
Govind, Nargundkar and another Vs. State
of M.P. 1952 0 AIR (SC) 343 in which it
has been held that:

"It is well to remember that in
cases where the evidence is of a
circumstantial nature, the circumstances
from which the conclusion of guilt is to be
drawn should in the first instance be fully
established, and all the facts so established
should be consistent only with the
hypothesis of the guilt of the accused.
Again, the circumstances should be of a
conclusive nature and tendency and they
should be such as to exclude every
hypothesis but the one proposed to be
proved. In other words there must be a
chain of evidence so far complete as not to
leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability the
act must have been done by the accused. -
Circumstantial evidence-Appreciation ofWhen sufficient for conviction. - Sections
18, 24-Admission of confession to be
taken as a whole."

The ruling cited by the learned
counsel for the appellant relates to
circumstantial evidence while in this case
the prosecution case is based on ocular
126 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony, hence this ruling has no
application.

17. The evidence produced by the
prosecution
is
reliable.
The
ocular
testimony stands corroborated with medical
evidence.
There
are
also
supporting
evidence in the form of statement of the
deceased about his death and the recovery
of knife used in the incident and from
prosecution evidence the guilt of the
accused stands proved. The learned trial
court has fully discussed and properly
appreciated the entire evidence on record.
The learned trial court has also analysed all
the defence arguments and the findings
recorded by the trial court are just and
proper. There is no illegality or perversity
in the findings recorded by the trial court
which is liable to be upheld. The criminal
appeal is liable to be dismissed.

18. According, this criminal appeal is
hereby dismissed.

19. The accused is absconding and is
not traceable. Proceedings against his
sureties are pending which shall be put to a
logical end. The trial court shall issue
standing warrants against him and on his
arrest he will be lodged in jail to serve out
his sentence.

20. The lower court's record along
with copy of the judgment be transmitted to
the trial court immediately.

21. We appreciate the assistance
rendered by Sri Lal Ji Chaudhary, Amicus
Curiae. State Government is directed to pay
him Rs. 7,000/- as his remuneration.
----------
(2021)10ILR A126
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3003 of 2018

Gore @ Sushil ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sudhakar Shukla, Sri Diwakar Shukla,
Sri Shyam Singh Somvanshi, Sri Sudhakar
Shukla

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 376, 354, 452,
506 - Protection of Children from Sexual
Offences Act, 2012-Section 4-challenge
to-conviction-accused
molested
then
victim and her mother was the eyewitness-Again accused committed rape
after
three
years-victim
statement
before trial court remained intact and
reliable-no definite opinion about the
rape in medical report-it is settled law if
the statement of victim intact and fully
reliable, conviction can be based on her
statement
alone
even
if
it
is
not
corroborated by the medical evidence-no
having criminal history of the accused is
not at all relevant in such type of casesTrial
court
rightly
convicted
the
accused.(Para 1 to 20)

B. Evidence of prosecutrix stands on equal
footing with that of injured witness and if
evidence
inspires
confidence,
corroboration is not necessary. The court
may convict the accused on the sole
testimony of the prosecutrix. (Para 15,16)

The appeal is dismissed. (E-6)

List of Cases cited: