# Parvez v. The State of U.P

- **Citation:** (2014) 1 ILRA 299
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-17
- **Case number:** Criminal Appeal No. 1728 of 2007
- **Bench:** Amar Saran, Mrs Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-v-the-state-of-u-p-42783
- **Pages:** 12

## Headnote

under section 302 and 307 IPC-challenged
on ground of anti-timed- FIR-discrepancy in
statement
of
prosecution
witness-non
mention of crime number in letter of
doctor-can not be inferred that FIR is antitimed-minor discrepancies in evidence-not
to be given undue importance-considering
inescapable
conclusion
about
guilt
of
appellant-appeal dismissed.

Held: Para-32
There are consistent statements of the
informant and other injured witnesses and
the Investigating Officer that the injured
first went to the police station, lodged the
First Information Report and then were
sent for medical examination in the District
hospital. Merely because crime number was
not mentioned in the letter sent to the
doctor along with the injured witnesses for
medical examination in the District hospital,
it cannot be inferred that the First
Information Report is ante-timed.

Case Law discussed:
(1999)3 SCC 507; 1988(Supp.) SCC 241;
1972Crl. L.J. 1302; (2002)4 SCC 426; (2006) 2
SCC 450; (2011) 6 SCC 288; (2005)9 SCC 788;
(2012) 11 SCC 205; 1995 Supp(1)SCC; (2005)
10 SCC 374; (2006)13 SCC 65; (2011)9 SCC
698; (2012)10 SCC 476; (2013)4 SCC 360.

## Text

_Characters 0–39,998 of 41,540. This is a partial read: ask again with offset=39998 for what follows._

1 All] Parvez Vs. The State of U.P.
299
father or mother for all purposes with effect
from the date of the adoption and from such
date all ties of the child in the family of his or
her birth shall be deemed to be severed and
replaced by those created by the adoption in
the adoptive family. As a consequence, when
a widow adopts a child, the child not merely
acquires an adoptive mother but also
acquires other relationships in the adoptive
family, unless there is anything to the
contrary in the Hindu Adoptions and
Maintenance Act.

7. This position is reinforced by Section
14(4) which sets out that where a widow or an
unmarried woman adopts a child, any husband
whom she marries subsequently shall be
deemed to be the step-father of the adopted
child. In other words, the family relationship
gets crystalised as at the date of adoption. The
child will be deemed to be the child of the
parent who adopts the child and the existing or
deceased spouse of that parent (as the case may
be), if any, will be considered the child's father
or mother. A spouse subsequently acquired by
the adoptive parent becomes the step-parent of
the adopted child. The adopted child, however,
cannot divest any person of any property
already vested in that person (Section 12[c])."

21. Looking to the entire evidence
which has been brought on record in the
present writ petition clearly establish that the
adoption took place by the ceremony of
giving and taking even in his life time of the
deceased employee, the department can not
take a plea that in formal and in true sense the
execution of the deeds had not been taken
place in his life time and the same had been
carried out after the demise of an employee.

22. Bare perusal of the annexure no.1 to
the writ petition, it is apparent that the
ceremony of giving and taking had taken place
on 11.10.1997 and Sri Brij Bihar Pandey,
deceased employee died on 12.12.1997.

23. Therefore, as per the view taken by
the Hon'ble Apex Court, this Court is of the
view that the denial of the right of the
petitioner no.2 (adopted son) was not
justified and is not in accordance with law.

24. Therefore, the orders dated
14.10.1999 and 11.06.1999 (annexure nos.
12 and 15 of the writ petition) are hereby
quashed. Mandamus is issued to the
respondent no.1 to pay family pension to the
petitioner
no.2
(adopted
son)
since
16.12.2002, when his mother Damyanti Devi
has died till the attainment of his majority. It
is expected that same may be carried out
within three months from the date of
presentation of certified copy of this order,
before the respondent no.1.

25. The writ petition is, accordingly,
allowed.

26. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2014

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE MRS SUNITA AGARWAL, J.

Criminal Appeal No. 1728 of 2007

Parvez..... Appellant
Versus
The State of U.P...... Respondent

Counsel for the Petitioner:
Sri
Shudhanshu
Srivastava,
Sri
Rajul
Bhargava, Sri Sharfuddin Ahmad, Smt. Nayan
Shree, Sri S.M.N. Abaas Abbadi, Sri Shakil
Ahmad, Sri Sumit Goyal
300 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.G.A.

Criminal Appeal-against conviction-offence
under section 302 and 307 IPC-challenged
on ground of anti-timed- FIR-discrepancy in
statement
of
prosecution
witness-non
mention of crime number in letter of
doctor-can not be inferred that FIR is antitimed-minor discrepancies in evidence-not
to be given undue importance-considering
inescapable
conclusion
about
guilt
of
appellant-appeal dismissed.

Held: Para-32
There are consistent statements of the
informant and other injured witnesses and
the Investigating Officer that the injured
first went to the police station, lodged the
First Information Report and then were
sent for medical examination in the District
hospital. Merely because crime number was
not mentioned in the letter sent to the
doctor along with the injured witnesses for
medical examination in the District hospital,
it cannot be inferred that the First
Information Report is ante-timed.

Case Law discussed:
(1999)3 SCC 507; 1988(Supp.) SCC 241;
1972Crl. L.J. 1302; (2002)4 SCC 426; (2006) 2
SCC 450; (2011) 6 SCC 288; (2005)9 SCC 788;
(2012) 11 SCC 205; 1995 Supp(1)SCC; (2005)
10 SCC 374; (2006)13 SCC 65; (2011)9 SCC
698; (2012)10 SCC 476; (2013)4 SCC 360.

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Shri S.M.N. Abaas Abbadi,
learned counsel for the appellant and
learned A.G.A.

2. Two persons namely appellant Parvej
and his brother Riyasat were committed to
trial in the court of Additional District and
Sessions
Judge
(F.T.C.)
Court
no.1
Saharanpur under Sections 302 and 307 I.P.C.
Riysast was acquitted by giving him benefit of
doubt of having committed the offences under
Sections 302 and 307 I.P.C..

3. The appellant Parvez was found
guilty and was convicted under Section 302
I.P.C. and punished for life imprisonment
along with fine of Rs. 3,000/-. Under Section
307 I.P.C., he was punished for seven years
R.I. and fine of Rs. 2000/-. In default, the
appellant has to undergo six months additional
imprisonment. All the sentences were to run
concurrently.

4. The prosecution case is that the
informant Asgari wife of Abdul Hamid
resident of Peer Bazeshah Wali Gali no. 3,
Thana
Jankpuri
submitted
a
written
application dated 2.9.1997 in the police
station Janakpuri. It was stated in the First
Information Report that Parvej the appellant
was the husband of her daughter Sanoo.
However prior to the incident they had
separated and divorced. Three children born
out of the marriage were living with Parvej.
Only one ,daughter, namely Rubi was with
Sanoo at her Maika. After divorce, Sanoo
was living with the informant. There is some
whisper of a dispute going on between the
parties in the court as Parvej had eloped with
Sanoo six years prior to the incident and
married her.

5. Parvej was pressuring Sanoo to
handover their daughter Rubi to him for a
long time and was angry as she had refused,
to give her only daughter living with her.

6. On the fateful day i.e. 2.9.1997 at
around 8 A.M., Parvej along with his
brother Riysat came to the house of
Asgari and some altercation occurred
between him and Sanoo over the custody
of Rubi(their daughter). Thereafter he
along with his brother Riyasat started
stabbing Sanoo with ''Ustura'(Knife). The
informant
Asgari
and
her
younger
daughter Sabbo aged about fourteen years
tried to save Sanoo and they were also
1 All] Parvez Vs. The State of U.P.
301
assaulted with ''Ustura' by the appellant
and his brother. Sabbo the younger
daughter of the informant Asgari received
fatal injuries on her person. She ran out of
the house crying in an injured condition
and fell down on the Kharanja outside the
house. She died on the spot on account of
the fatal injury received on her neck.
During the incident the neighbours came
on the spot hearing the cries of the
deceased and the injured. One Rasihda
wife of Jamaludeen along with other
neighbours also witnessed the incident.

7. On the said information, a case under
Sections 302 and 307 I.P.C. was registered
against the appellant and his brother Riyasat
on 2.9.1997 at 9.05 A.M. After lodging the
First Information Report, Asgari and Sanoo
were sent to the District hospital by the police
for their medical examination. Dr. T.R.
Sharma, who entered in the witness box
examined both the injured, namely, Asgari
and Sanoo and also conducted postmortem of
the deceased Sabbo.

8. The informant Asgari was
medically examined at 9.30. A.M. and as
per the injury report the informant was
having two injuries of incised wounds on
the left and lower side of her neck and
middle chin. Apart from these two
injuries, contusions and abrasions were
also found on her person. The nature of
the injuries have been described as simple
and caused by some sharp edged object.
Similar injuries were also found on the
person of Sanoo who was examined at
9.45 A.M. The injuries reported are three
incised wounds on the left back and front
side of the neck and outer edge of left
eyebrow. The remark is that the injuries
were caused by some sharp edged object.
Both the injury reports are dated 2.9.1997
itself .

9. The injuries of the deceased are
incised wound on the right and front side of
the neck which was bone deep and carried
from right ear to half portion of the neck
diagonally cutting trachea and artery of right
side of the neck from the middle. Cause of
death was due to shock and haemorrhage on
account of antemortem injuries.

10. The appellant Parvej was
arrested on 8.9.1997 and on the disclosure
statement made by him ''Ustura' the
murder weapon was recovered near four
electric poles near the over-bridge,
covered under the grass. As per the
recovery memo dated 8.9.1997 blood was
found on the ''Ustura' at the butt and front
sharp portion. As per the serologist report
the blood found on the murder weapon
''Ustura' was disintegrated.

11. P.W. 1 Smt. Raseeda, the
neighbour of the informant was declared
hostile and was cross examined by the
prosecution. Smt. Raseeda P.W.1 though
she turned hostile however admitted that
she had reached on the spot and saw the
dead body of Shabbo lying on the road
and injured Asgari and Sanno but she
denied the presence of Parvej and Riyasat.
In her cross examination she tried to
suggest that the residents of Mohalla gave
an application against Asgari and Sanoo
making allegations of prostitution.

12. P.W 2 the injured witness and
informant Smt. Asgari had reiterated her
version in the First Information Report.

13. The injured witness Sanoo
P.W.6 stated that the report was lodged by
her mother at the police station and
thereafter their medical examination was
done at the District hospital. She and her
mother were admitted in the hospital.
302 INDIAN LAW REPORTS ALLAHABAD SERIES
While narrating the incident she stated
that the appellant Parvej along with his
brother Riyasat came to their house and
attacked her with ''Ustura' after snatching
Rubi her daughter from her lap. No injury
was inflicted on Rubi. The appellant first
attacked her and then her mother Asgari.
In the meantime her younger sister
Shabbo came to save her, she was also
attacked and received fatal injuries. The
incident occurred at the Sahan of the
house. The appellant along with coaccused ran away from the door of the
room which opened in the "Gali" (lane).

14. P.W.3 Dr. T.R Sharma, who had
examined the injured Asgari and Sanoo and
also conducted postmortem on Shabbo stated
on oath that all the injuries received by Asgari
and Sanoo were fresh and he proved the
postmortem and injury reports given by him.

15. P.W.4 constable Vijendra Singh
and P.W.7 constable Rajendra Singh were
witnesses of the inquest.

16. P.W. 5 constable Harendra Singh
was witness of recovery of murder weapon
(''Ustura'). He affirmed that the weapon was
recovered on 8.9.97 after arrest of the
accused Parvej at his pointing out.

17. P.W.8 S.I. K.P. Singh was the
investigating officer.

18. P.W.8 S.I. K.P. Singh, the
Investigating Officer in his examination in
chief stated that the site plan was prepared by
him and inspection was made in the presence
of the informant Asgari. He further described
that blood was found scattered from the
house of the informant to the place where the
dead body of Sabbo was lying. He affirmed
the recovery of the bloodstained earth and
plain earth from the site of the incident and
the recovery of Ustura at the pointing out of
the accused from the place concealed under
the grass and rags near four electricity poles
near the over bridge. Inquest was prepared
by him in the presence of the Panch
witnesses as also P.W.4 and P.W.7 i.e
constables Vijendra Singh and Rajendra
Singh whose signatures have been obtained
on the inquest report. Murder weapon was
sent to the forensic laboratory for chemical
examination. He also stated that at the time
of recovery of the murder weapon he found
blood on it.

19. The statement of the accused
under Section 313 Cr.P.C. was recorded
and all the incriminating circumstances
were put to him which he denied.

20. The submission of the learned
counsel for the appellant is that there is
inconsistency in the statement of injured
witness i.e. informant P.W.2 Asgari, and
P.W. 6 Sanoo regarding the place of
occurrence of the incident. The P.W. 2
informant said that Sabbo was attacked by
the appellant inside the room when she
came to save her and Sanoo. She ran out of
the room crying and died at the road outside
the house of the informant whereas P.W. 6
in her statement said that the entire incident
occurred in the Sahan adjacent to the room
which opens in the "Gali" outside the house
of the informant. He further stated that the
time of the incident as narrated is incorrect
in view of the statement of P.W.2. The
incident is said to have occurred at around 8
A.M. whereas Dr. T.R. Sharma, who had
conducted postmortem stated that rigor
mortis was present over the upper portion of
the hands of the deceased, therefore, there is
possibility of the incident having occurred
six hours prior to the time mentioned in the
First Information Report and thus between 3
to 4 A.M.
1 All] Parvez Vs. The State of U.P.
303

21. The further submission is that the
First Information Report is ante-timed as the
crime number has not been mentioned in the
letter (Chitthi Majroobi) written for medical
examination of the injured Asgari and Sanno.
The statement of the witnesses is that the
injured witnesses went to the police station
and after the report was lodged they were
sent
along
with
letter
for
medical
examination. The fact that the crime number
has not been mentioned in the letter
addressed to the doctor for medical
examination clearly shows that the First
Information Report is ante-timed and it was
lodged after inquest was prepared and
postmortem was conducted. He further
submits that the inquest was alleged to have
been prepared by the Investigating Officer,
S.I. K.P. Singh, however he did not put his
signature on the inquest, rather the signatures
of two other constables Vijendra Singh and
Rajendra Singh were taken on the inquest .

22. Moreover S.I. K.P. Singh
Investigating Officer in his statement said
that the site plan was prepared in the
presence of informant Smt. Asgari whereas
Asgari had deposed that she remained
hospitalized
after
lodging
the
First
Information Report when she was sent along
with Sanno for medical examination. The
inquest of the deceased was prepared in her
presence and at the time of preparation of site
plan neither she nor her daughter, injured
witness went to the spot. The site plan was
prepared in the presence of neighbours , she
gave the key of her house.

23. Much stress has been laid by the
learned counsel for the appellant on the
said inconsistency in the statement of the
informant Asgari and the Investigating
Officer and on that basis it was submitted
that the site plan was not prepared on the
spot.

24. He lastly submits that the alleged
murder weapon i.e. "Ustura" was found from
an open place and it was implanted on the
appellant. The said fact further established
from the statement of P.W.5 that on the cloth
in which the alleged murder weapon was
kept and sealed was carrying the name of
Liyakat Police station Nakor, Saharanpur.
Though it contains the slip of F.S.L where it
was sent for chemical examination. The
alleged weapon cannot be connected with the
present crime and it was some other weapon
which was sent for chemical examination.
On account of these discrepancies,the entire
prosecution
story
falls
as
the
inconsistencies/discrepancies found are fatal
to the prosecution case.

25. Learned A.G.A. per contra submits
that discrepancies as pointed out by the
learned counsel of the appellant are minor
discrepancies. It is the case of circumstantial
evidence and each instance of incriminating
circumstance, by way of reliable and
clinching evidence, has been established by
the prosecution. The chain of events is
complete on the basis of which, no
conclusion other than one of the guilt of the
accused-appellant can be reached.

26. There was motive to commit the
crime. It is an undisputed fact that the
appellant and Sannoo P.W. 6 the injured
witness were husband and wife and on
account of their strained relationship they
had divorced two years prior to the incident.
However a dispute remained on account of
one daughter being born out of their wedlock
after divorce in the house of the parents of
Sannoo. The appellant wanted to get his
daughter in his custody and earlier also an
altercation had taken place over the custody
of the child. On the date of incident the
appellant came to the house of the informant,
again altercation took place between the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant and Sannoo over custody of their
daughter Rubi. After some altercation, the
appellant inflicted injuries on the neck of his
ex-wife Sannoo and the informant Asgari.
When he was attacking them with Ustura,
the younger daughter of Asgari came to their
rescue and the appellant also inflicted fatal
injures on her neck, which sliced the trachea
and artery of her neck from the middle. The
deceased Sabbo ran out crying on account of
the injuries on her person and succumbed to
the injuries on the road in front of the house.
P.W.1 one of the neighbours who was stated
to be the witness of the incident though she
denied the presence of the accused appellant
at the place of occurrence and also the time
of incident being around 8 A.M., however,
she admitted in her examination in chief that
she saw the two injured persons with blood
oozing out of their wounds,namely, Asgari
and Sannoo and the deceased Sabbo lying on
the road outside the house.

27. We have considered the
submissions of the learned counsel for the
parties and perused the record.

28. In so far as the submission of the
learned counsel for the appellant regarding
the discrepancies about the place of
occurrence of the incident is concerned it
will be seen that there is no inconsistency.
In fact, the site plan prepared by the
Investigating Officer signed by him shows
that the body of the deceased Sabbo was
found at the place marked as "S" which is a
road/"Gali" outside the house of the
informant. "X" is the place inside the house
where blood was found. It has also been
mentioned in the site plan that blood was
found scattered from place "X" i.e. place of
occurrence and the place "S" where the
body of the deceased was lying . The
distance from "X" to "S" was mentioned as
24 steps.

29. Further the informant also stated
on oath that the incident occurred in the
house and the deceased ran after getting
injury on her person and died outside the
house on the road. The mere one line in the
statement of P.W.6 that the entire incident
occurred in the "Sahan" whereas she also
said that after they were attacked by the
appellant and blood fell on the ground in the
room is not sufficient to accept the
contention of the learned counsel for the
appellant. The Investigating Officer took a
sample of bloodstained earth and plain earth
from the place of occurrence. In the
serologist report human blood was found in
the bloodstained earth sent for chemical
examination.

30. A reference may be made to the
judgment of the Apex Court in State of
Rajasthan Vs. Teja Ram and others (1999) 3
SCC 507 wherein discrepancy in the
evidence as between two sets of witnesses
was considered. The Apex Court in
paragraph 18 of the judgment held that there
was little justification of the High Court for
blowing up such a mote discrepancy to the
size of a mountain and then to reject the
whole evidence by depicting it as a material
discrepancy. In the said case, the discrepancy
in the evidence of two sets was that two
witnesses said that assailants were seen
going out from the western gate of the house
while other two witnesses said that assailants
went out through the eastern gate. It was held
that in the circumstances of the case, no
adverse inference can be drawn against such
witnesses.

31. In the case of Appabhai and
another Vs. State of Gujarat, 1988 (Supp.)
SCC, 241, the Apex Court in paragraphs
13 and 14 of the judgement has held that
minor discrepancies to the testimony
should not be given undue importance.
1 All] Parvez Vs. The State of U.P.
305
The injured victim, the victim assaulted
must be considered as the best eyewitness. Paragraphs no. 13 and 14 of the
judgement are quoted as under :-

"13.On the second contention, the learned
Counsel highlighted many of the contradictions
in the evidence of Devji (PW-4) as against his
previous statement ; one recorded by the
Executive Magistrate (Exh. 66) and another by
the police during the investigation. We have,
however, also examined the relevant evidence.
It is true that there are many contradictions in
the evidence of Devji. He has not attributed
overt acts to individual accused in his statement
before the police whereas he has attributed such
overt acts in his evidence before the court. But
that is no ground to reject his entire testimony.
It must not be forgotten that he was a victim of
the assault. Fortunately he has survived. He
must, therefore, be considered as the best eye
witness. The Court while appreciating the
evidence must not attach undue importance to
minor discrepancies. The discrepancies which
do not shake the basic version of the
prosecution case may be discarded. The
discrepancies which are due to normal errors of
perception or observation should not be given
importance. The errors due to lapse of memory
may be given due allowance. The Court by
calling into aid its vast experience of men and
matters in different cases must evaluate the
entire material on record by excluding the
exaggerated version given by any witness.
When a doubt arises in respect of certain facts
alleged by such witness, the proper course is to
ignore that fact only unless it goes into the root
of the matter so as to demolish the entire
prosecution story. The witnesses nowadays go
on adding embellishments to their version
perhaps for the fear of their testimony being
rejected by the court. The courts, however,
should not disbelieve the evidence of such
witnesses altogether if they are otherwise
trustworthy. Jagamohan Reddy, J., speaking for
this Court in Sohrab and Anr. v. the State of
Madhya Pradesh 1972 Crl. L.J. 1302 at 1396
observed :

This Court has held that falsus in no
falsus in omnibus is not a found rule for the
reason that hardly one comes across a
witness whose evidence does not contain a
grain of untruth or at any rate exaggeration,
embroideries or embellishments. In most
cases, the witnesses when asked about details
venture to give some answer, not necessarily
true or relevant for fear that their evidence
may not be accepted in respect of the main
incident which they have witnessed but that
is not to say that their evidence as to the
salient features of the case after cautious
scrutiny cannot be considered.

"14.
In
Bharwada
Bhoginbhai
Hirjibhai v. State of Gujarat , M.P.
Thakkar, J. observed :

A witness though wholly truthful, is
liable to be overawed by the court
atmosphere
and
the
piercing
cross
examination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him -perhaps it is a sort of a
psychological defence mechanism activated
on the spur of the moment.

Discrepancies which do not go to the
root of the matter and shake the basic version
of the witnesses therefore cannot be annexed
with undue importance. More so when the all
important "probabilities-factor" echoes in
favour of the version narrated by the
witnesses."

32. The contention of the learned
counsel for the appellant is that the First
306 INDIAN LAW REPORTS ALLAHABAD SERIES
Information Report is ante-timed cannot be
accepted for the reason that the time of the
incident mentioned in the First Information
Report is around 8 A.M. The chik F.I.R was
prepared at 9.05 A.M. After lodging of the
First
Information
Report,
the
injured
witnesses were sent to the District hospital
and were examined at 9.30 A.M. and 9.45
A.M. The statement of the injured witnesses
is that they first went to the police station,
lodged the First Information Report and then
were sent by the police to the District
hospital along with a letter of medical
examination. Time of chik F.I.R. mentioned
in the inquest was 9.05 A.M. Time of
commencement
of
the
inquest
was
mentioned as 10.15 A.M. and completion
was 11.15 P.M. and postmortem was
conducted on the same day at 5 P.M.. Thus,
there is no missing link in the sequence of
events and the time mentioned in the First
Information Report does not suggest that the
First Information report is ante-timed. There
are consistent statements of the informant
and other injured witnesses and the
Investigating Officer that the injured first
went to the police station, lodged the First
Information Report and then were sent for
medical examination in the District hospital.
Merely because crime number was not
mentioned in the letter sent to the doctor
along with the injured witnesses for medical
examination in the District hospital, it cannot
be inferred that the First Information Report
is ante-timed.

33. The Apex Court in (2002) 4 SCC,
426 Rajesh alias Raju Chandulal Gandhi and
another Vs. State of Gujarat; (2006) 2 SCC,
450, Radha Mohan Singh alias Lal Saheb
and others Vs. State of U.P. and (2011) 6
Supreme Court Cases, 288, Brahm Swaroop
and another Vs. State of Uttar Pradesh has
discussed the discrepancies and omissions in
the inquest report and held that such
discrepancies or omissions are not sufficient
to put the prosecution out of the court and
such omission would not necessarily led to
an inference that the First Information Report
is ante-timed.

34. In the case of Jaishree Yadav Vs.
State of U.P. (2005) 9 Supreme Court Cases,
788. In paragraph 16 it was held that merely
because
the
requisition
sent
by
the
investigating officer to the doctor, to conduct
the postmortem, did not accompany all the
particulars found in the inquest report and the
complaint like the particulars of the case, the
contention of the learned counsel for the
accused that when the dead body was sent
for postmortem the investigating agency did
not know the full particulars of the case. It
was held that :-

"............ We do not think that these
omissions, if any, would lead to the
conclusion that the FIR is anti-timed. It is a
settled principle in law that though it is
necessary to give the gist of the information
collected during the course of inquest
proceedings and from the material available
in the FIR to the doctor conducting the post
mortem, it is not necessary to give all the
particulars as contained in either of the above
said documents. This is clear from the
judgment of this Court in the case of
Mahendra Rai vs. Mithilesh Rai & Ors."

35. This apart the fact that inquest has
not been signed by the Investigating Officer
is not fatal to the prosecution case for the
reason that there are other two witnesses of
the inquest P.W. 4 and P.W.7 who stated on
oath that they were present and signed the
inquest which was prepared by the
Investigating Officer. Moreover the purpose
of the inquest is to ascertain the condition of
the body of the deceased at the time of
inspection. The signatures of the Panch
1 All] Parvez Vs. The State of U.P.
307
witnesses and two constables namely P.W. 4
and P.W.7 are on the inquest.

36. The recovery of murder weapon
"Ustura" was at the pointing out of the
appellant. The recovery cannot be said to be
from an open place as the "Ustura" was
found hidden beneath grass and rags from a
place which was disclosed by the appellant
though it was described an open place being
under the over bridge between four
electricity poles. As the appellant guided the
Investigating Officer to the specific place
mentioned in his disclosure statement and the
bloodstained "Ustura" was recovered which
was concealed by him under the grass and
rags, it cannot be described as a recovery
from an open place. The seizure memo was
prepared and marked as exhibit Ka 5. A
perusal of the same indicates the facts
discovered from the statement of the
accused-appellant and the recovery of Ustura
a weapon was concealed by him. While
dealing with the recovery on the basis of
disclosure statement made by the accused the
Apex court in Teja Ram (supra) wherein the
axes hidden beneath the rags were recovered
with the help of the information elicited from
the accused, the Apex Court has held that
normally the above circumstance should
have been given weighty consideration in the
evaluation of the circumstantial evidence.

37. Further in the serological report
on account of the blood having been
found disintegrated that does not mean
that the blood stuck on the axe would not
have been human blood at all.

38. The Apex court in the case of
Sunil Clifford Daniel Vs. State of Punjab
reported in (2012) 11 SCC 205 has
considered the fact that blood found to
have disintegrated on the recovered article
in detail. After consideration of various
judgments the Apex Court had observed
in paragraph 46 which is quoted below-:

"In view of the above, the Court finds it
impossible to accept the submission that, in
the absence of the report regarding the origin
of the blood, the accused cannot be convicted,
upon an observation that it is only because of
lapse of time that the classification of the
blood cannot be determined. Therefore, no
advantage can be conferred upon the accused,
to enable him to claim any benefit, and the
report of dis-integration of blood etc. cannot
be termed as a missing link, on the basis of
which, the chain of circumstances may be
presumed to be broken."

39. While coming to the said
conclusion Teja Ram (supra) was also
considered wherein it was held that merely
due to disintegration of the serum and
absence of specific report regarding presence
of human blood on the weapon,it cannot be
imagined that the blood would be of some
other origin.

40. The effort of the criminal court
should not be to prowl for imaginative
doubts. Unless the doubt is of a reasonable
dimension which a judicially conscientious
mind entertains with some objectivity, no
benefit can be claimed by the accused.

41. The court finds, in the present case,
that there was strong motive for commission
of the crime. Though the appellant had
divorced Sannoo, his ex-wife two years prior
to the incident and they were living
separately, however, he was insisting for the
custody of their daughter born after the
divorce at the house of the informant.
Admittedly three children born out of their
wedlock were living with the appellant. Thus
there is little possibility of doubt regarding
existence of motive. Thus an inference may
308 INDIAN LAW REPORTS ALLAHABAD SERIES
be drawn that the appellant in fact wanted to
get back his daughter at any cost.

42. His wife Sannoo was strongly
resisting and not prepared to give custody
of the female child Ruby. On account of
it, some altercation had taken place
between them prior to the incident.

43. The Apex Court in Sunil
Cliffored Daniel(supra) considered the
case of Suresh Chandra Bahri vs. State of
Bihar reported in 1995 Supp (1) SCC
page 80 to come to the conclusion that the
entire evidence on record suggest that the
appellant has sufficient/necessary motive
to commit the crime.

44. The suggestion of the defence is
that the informant was a person of loose
character and a complaint was made by the
neighbours that she had indulged in
prostitution along with her two daughters,
therefore, there is strong possibility of the
crime being committed by any of the
customers of the three females in the house.
The said suggestion is a remote possibility
and there is no basis for making the said
statement. Even otherwise from the evidence
on record it is clear that the incident occurred
around 8 A.M. as stated by the informant.
The neighbours rushed to the spot after
hearing the cries of the deceased and injured,
however, no one has come forward to give
such a statement. One neighbour P.W.1
though she stated in her examination that she
saw the deceased lying in a pool of blood on
the road having an injury on the neck when
she rushed to the spot. She however turned
hostile and stated that she did not see the
appellant and his brother at the place of
occurrence. The incident happened in the
dwelling house of the informant and the most
natural witnesses would be the inmates of the
house. Only for the reason that some
independent witnesses turned hostile and did
not support the prosecution case, the court
cannot castigate the prosecution as it was not
possible to examine any independent witness
who had witnessed the events. Normally the
neighbours and other independent witnesses
do not come forward in such matters.
Experience reminds us that the people are
generally insensitive when a crime is
committed even in their presence. They keep
themselves away from the court unless it is
inevitable. But the prosecution case cannot
be thrown out or doubted on that ground
alone. See Appabhai and another Vs. State of
Gujarat (supra).

45. So far as the contention of the
learned counsel for the appellant that the
incident occurred in the odd hours of night
and not in the morning of 2.9.1997 is
concerned, it may be noted that the basis of
the said contention is the statement of P.W.3
Dr. T.R. Sharma, who conducted the
postmortem. The doctor in his cross
examination submitted that as rigor mortis
was present over the upper portion of the
hands of the deceased, therefore, there was a
possibility of the incident having occurred
six hours prior to the time mentioned in the
First Information Report. Dealing with the
submission of learned counsel for the
appellant we may refer to the relevant
portion
from
the
Modi's
Medical
Jurisprudence and Toxicology, 23rd Edition
which is quoted as under :-

"In the voluntary muscles, rigor
mortis follows a definite course. It first
occurs in the muscles of the eyelids, next
in the muscles of the back of the neck and
lower jaw, then in those of the front of the
neck, face, chest and upper extremities,
and lastly extends downwards to the
muscles of the abdomen and lower
extremities."
1 All] Parvez Vs. The State of U.P.
309

46. In Mangu Khan Vs. State of
Rajasthan (2005) 10 SCC 374 the Apex
court observed in paragraph-8 that :-

"The contention urged by reference to
textbooks on Forensic Medicine to show the
time within which rigor mortis develops all
over the body also has no factual basis. It
depends
on
various
factors
such
as
constitution of the deceased, season of the
year, the temperature in the region and the
conditions under which the body has been
preserved. The record indicates that the body
was taken from the mortuary. We notice that
there is no cross examination, whatsoever, of
the doctor so as to elicit any of the material
facts on which a possible argument could
have
been
based.
If
these
are
the
circumstances, then the presence of rigor
mortis all over the body by itself cannot
warrant the argument of the learned counsel
that the death must have occurred during the
previous night. Acceptable ocular evidence
cannot be dislodged on such hypothetical
basis for which no proper grounds were laid."

47. Moreover it is settled legal
proposition that the ocular evidence
would have primacy unless the oral
evidence available is totally irreconcilable
with the medical evidence. More so
ocular testimony of a witness will have
greater
evidentiary
value
vis-a-vis
medical evidence and when medical
evidence makes the oral testimony
improbable, the same becomes a relevant
factor in the process of evaluation of such
evidence
.
It
is
only
when
the
contradiction between the two is so
extreme
that
the
medical
evidence
completely rules out all possibilities of the
ocular evidence being true at all, that the
ocular evidence is liable to be disbelieved.

48. So far as the opinion of the
doctor is concerned that incident might
have occurred six hours prior to the time
mentioned in the First Information Report
i.e. 8 A.M. and the suggestion of the
appellant that it occurred in the night does
not mean that Dr. T.R. Sharma P.W.3 was
able to fix the exact time of death.

49 Issue raised by the learned counsel
for the appellant has been considered and
decided in umpteen number of judgements of
the Apex Court. Reference may be taken to
(2006) 13 SCC, 65 Baso Prasad Vs. State of
Bihar (2011) 9 SCC 698 Rakesh and another
Vs. State of Madhya Pradesh; (2012) 10
SCC 476, Darbara Singh Vs. State of
Punjab; and (2013) 4 SCC 360 Umesh Singh
Vs. State of Bihar.

50. In the present case the doctor on
the basis of postmortem conducted by him
only gave a suggestion that the time of
occurrence might be prior to 8 A.M.

51. In view of the above, it is evident
that the incident occurred at about 8. AM.
The injured Asgari and Sannoo went to the
police station, lodged the First Information
Report and were taken to the hospital where
they were examined by the doctor. The
motive was also disclosed in the First
Information Report itself. It is,therefore,
improbable that the appellant has been
falsely implicated as promptness in lodging
of the First Information Report shows that
there was no time for manipulation.

52. Further it does not appeal to reason
as to why injured witnesses would falsely
implicate the appellant when he had already
divorced Sannoo and they were living
separately for almost two years prior to the
occurrence of the incident and spare the real
culprits to go scot free.

53. There is no discrepancy in the
statement of two injured witnesses and
310 INDIAN LAW REPORTS ALLAHABAD SERIES
even if there are minor discrepancies
between the narrations of the witnesses
when they speak on details, unless
contradictions are of material dimensions,
the same should not be used to discard the
evidence in its entirety.

54. Other circumstances, particularly
the nature of the injuries inflicted on the
person of the injured witnesses and the
deceased, arrest of the accused, recovery
of weapon, his disclosure statement prove
the prosecution case. There is no reason
not to believe the statements of the
injured eye witnesses.

55. In a feeble attempt learned
counsel for the appellant submits that this
is a case where the offence, if any, said to
be committed by the appellant would not
go beyond Section 304 I.P.C. as it was a
case of sudden provocation and appellant
did not intend to commit the crime.

56. The said confession does not stand
to reason as it is evident that the appellant was
carrying a 'Ustura" with him when he went to
meet Sannoo and moreover he did not attack
Sannoo only but two other persons also who
came to save her. He ran away only after
causing serious injuries to Sabboo who died
on the spot. The fact of carrying weapon with
him, clearly shows that the appellant had
intention to settle the dispute for ever at any
cost.

57. In view of the above we reach an
inescapable conclusion that the appellant is
guilty of the commission of the offence for
which he has been charged.