# Raeesh v. State Of U.P

- **Citation:** (2016) 8 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-26
- **Bench:** Bala Krishna Narayana, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raeesh-v-state-of-u-p-44344
- **Pages:** 14

## Text

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8 All. Raeesh Vs State Of U.P.
521
(2016) 8 ILRA 521
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 2805 Of 2011
&
Criminal Appeal No.- 8126 Of 2010

Raeesh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Meraj Ahmad Khan, Dileep Kumar, G.S. Chaturvedi, M.P.S. Chauhan, Manish Tiwary, Rajshri Gupta

Counsel for Respondent:
Govt. Advocate, Anil Srivastava

Legislation referred to Indian Penal Code, 1860 - Ss. 302, 302/34, 504; Arms Act, 1959 - S. 25(1B)(b);
Code of Criminal Procedure, 1973 - S. 313

FACTS:
On 15.02.2009 at about 12.00 noon, at the Government Slaughter House, Police Station Kotwali Nagar,
District Aligarh, the appellant Raeesh arrived armed with a knife, accompanied by his brother Haji Munna
(appellant) and father Haji Rasheed (co-accused, since deceased). They entered the slaughter house and
demanded delivery of slaughtered goods already purchased by the first informant's side. On being refused,
Haji Rasheed and Haji Munna caught hold of the deceased Irshad (brother of the first informant), and Raeesh
inflicted a knife blow on his chest with intent to kill him. Irshad was taken to Malkhan Singh Government
Hospital, Aligarh, where he was declared dead. Raeesh was apprehended on the spot along with the knife. A
first information report was lodged by the first informant Bahar Ahmad @ Chhotey (P.W. 1) at 1.00 P.M. on
the same day. After investigation, charge-sheets were filed against the appellants.
The Sessions Court, Aligarh, by judgment and order dated 14.12.2010, convicted appellant Raeesh under
Section 302 I.P.C. and Section 25(1B)(b) of the Arms Act and convicted appellant Haji Munna under Section
302/34 I.P.C. and sentenced both to life imprisonment. Both the appellants challenged their conviction before
this Court.

ISSUES:
(i) Whether the prosecution witnesses, being close relatives of the deceased, are to be treated as interested
witnesses and their testimony discarded on that ground alone.
(ii) Whether the first information report was ante-timed.
(iii) Whether non-collection of blood-stained earth from the spot and non-examination of fingerprints on the
recovered knife vitiated the prosecution case.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) Whether the testimony of eye-witnesses P.W. 1 and P.W. 2 was reliable, consistent, and sufficient to
sustain conviction.
(v) Whether common intention under Section 34 I.P.C. was established against appellant Haji Munna.

HELD:
(i) Testimony of relative/interested witnesses - Mere relationship of witnesses with the deceased is
not by itself a ground to discard their testimony. In many cases, only relatives are available to depose,
particularly having regard to the prevailing trends in our society where persons other than relations are not
ready to depose before the court. Such testimony, however, must be subjected to scrupulous and careful
scrutiny and if, on such scrutiny, it inspires confidence, it cannot be rejected.
 Relied on: Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)
(ii) Prompt lodging of the FIR - The place of occurrence was the Government Slaughter House, situated
at a distance of 2 kilometres from the police station. The occurrence took place at about 12.00 noon. The first
information report was lodged at 1.00 P.M. on the same day. This constitutes a prompt report. The timeline
stated in the FIR stands corroborated by: the inquest report commencing at 2.30 P.M. and concluding at 4.30
P.M.; despatch of the dead body for post-mortem after 4.30 P.M.; and its receipt at the mortuary at 5.20 P.M.
The contention that the FIR was ante-timed is, therefore, unsustainable.
(iii) Non-collection of blood from spot - The occurrence took place in a government slaughter house
where blood of slaughtered animals had spread all over the premises. It was, therefore, virtually impossible to
segregate and collect blood attributable exclusively to the deceased. Non-collection of blood-stained earth
under such peculiar facts creates no doubt about the place of occurrence. Footwear left behind at the scene
by reason of the stampede that followed were, in fact, seized under a recovery memo by the Investigating
Officer.
(iv) Reliability of ocular testimony - The two eye-witnesses, P.W. 1 (first informant and brother of
deceased) and P.W. 2 (uncle of deceased), were naturally present at the slaughter house supervising
slaughtering work. Their presence at the spot is wholly consistent with the nature of their work and the time
of day. Their testimonies are consistent inter se and corroborate the contents of the first information report in
all material particulars. The specific description that, after the knife blow, the deceased did not fall
immediately but was caught by the witnesses while in the act of falling, is a detail that only persons actually
present on the spot could furnish. Cross-examination did not elicit any material contradiction. The defence's
own suggestion that the appellant Raeesh was caught by the first informant after a short chase amounts to
an implicit admission of the witnesses' presence at the spot.
 Medical evidence of Dr. S.K. Sharma (P.W. 3) corroborates the mode of assault - a single ante-mortem
stab wound, 4 cm × 2 cm × chest cavity deep, on the front of the chest on the left side - sufficient in the
ordinary course of nature to cause death. The doctor opined that death could have occurred between 12.00
noon and 12.15 P.M., which is consistent with the prosecution case and was not challenged in crossexamination.
(v) Common intention under Section 34 I.P.C. - The conjoint act of Haji Rasheed and appellant Haji
Munna in catching hold of both hands of the deceased Irshad - thereby immobilising him - while the
appellant Raeesh inflicted the knife blow establishes that all the accused persons were acting in furtherance of
a common intention to commit the offence. The manner and participation of the accused persons in the
incident leads to an inescapable inference of shared common intention.

RESULT:
Both the appeals lack merit and are accordingly dismissed. The judgment and order of conviction dated
14.12.2010 passed by the Sessions Judge, Aligarh, in Sessions Trial No. 395 of 2009 (under Sections 302 and
302/34 I.P.C.) and Sessions Trial No. 396 of 2009 (under Section 25(1B)(b) of the Arms Act) is upheld and
confirmed. The bail of appellant Haji Munna stands cancelled and his sureties are discharged. He is directed to
be taken into custody forthwith to serve out the remaining period of the sentence imposed upon him by the
trial court.
8 All. Raeesh Vs State Of U.P.
523
Cases Referred:
Birender Poddar v. State of Bihar, 2011 Cri. L.J. 3120 (S.C.)

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. By way of aforesaid Criminal Appeals, the two appellants Raeesh and Haji Munna, have
challenged the judgment and order of conviction dated 14.12.2010 passed by the Sessions Judge,
Aligarh in Sessions Trial No. 395 of 2009, arising out of case crime no. 43 of 2009 State Vs.
Raeesh and others under section 302, 302/34 I.P.C. and in Sessions Trial No.396 of 2009 arising
out of Case Crime No.44 of 2009 State Vs. Raeesh, under sub section 1 (b) Part (b) of Section 25
Arms Act, respectively, whereby the appellant Raeesh has been sentenced to life imprisonment
coupled with fine of Rs. 10,000/- under Section 302 IPC and three years rigorous imprisonment
coupled with fine of Rs.3000/- under sub section (1B) (b) of Section 25 Arms Act, and appellant
Haji Munna has been sentenced to life imprisonment coupled with fine of Rs.10,000/- under
Section 302/34 IPC, in case of default in payment of fine, additional simple imprisonment for two
months and one month, respectively. Sentences to run concurrently.

2. Heard Sri P.C. Srivastava, Sri R. K. Srivastava and Sri Manoj Kumar Srivastava, learned
counsel for the appellants, Sri S.G. Hasnain, learned Senior Advocate assisted by Sri Anil Kumar
Srivastava and Ms. Pinki Rani Singh, learned counsel for the complainant and Sri J.K. Upadhyay,
Sri N.K. S. Yadav, Km. Meena, Ms. Manju Thakur and Sri Rahul Asthana learned A.G.As. for the
State and perused the record.

3. The prosecution case as reflected from the record and particularly from first information
report appears to be that first informant Bahar Ahmad @ Chhotey son of Mohd. Tahir resident of
Nadir Mahal, Hathi Wala 'Pul', Police Station Delhigate District Aligarh, lodged a written report at
Police Station Kotwali Nagar District Aligarh on 15.2.2009 at about 1 P.M. against the aforesaid
appellants with allegations that contractor Hazi Zahir had engaged him to supervise work
(slaughtering of animals) at the govt. slaughter house. While supervising work, on 15.2.2009, at
that point of time, Muddasir son of Mohd. Yasin , Hazi Wahid son of late Hazi Mohd Sabir and
Hamid son of late Hazi Mohd. Safir, were also present over there and his brother Irshad was also
helping him in his work. Around 12 noon, Mohd. Raeesh son of Hazi Rasheed possessing knife in
his hand, accompanied by his brother Hazi Munna and his father Hazi Rasheed, came through the
door inside the slaughter house and hurled abuses and after coming close to the informant, they
insisted upon delivery of the goods which had already been purchased by the first informant. They
said that except them no one else can take the goods. First informant and his brother Irshad asked
them not to do the same, whereupon, Hazi Rasheed exhorted (co-accused) to kill and today they
would not spare them, whereupon, Hazi Mulla and Hazi Rasheed caught informant's brother Irshad
and Mohd. Raeesh inflicted knife blow on the chest of Irshad with intention to kill him.
Consequently, Irshad was seriously injured. He was taken to Malkhan Singh Government Hospital
Aligarh by Mumtaj and Arif Munshi by motorcycle where Irshad was declared dead. First
information report also contains description that Mohd. Raeesh was caught on the spot with knife
by the first informant, Muddassir, Hazi Wahid, and Hamid. However other, co-accused Hazi
524 INDIAN LAW REPORTS ALLAHABAD SERIES

Munna and Hazi Rasheed made their escape good towards Mathura Bye-pass. Number of people
arrived at the spot after hearing hue and cry. They also tried to nab the two culprits, but in vain. The
first infornant has come to lodge this report along with captured accused Mohd. Raeesh with
recovered weapon knife. Report be lodged and appropriate action be taken. This written report is
Ext. Ka. 1.

3A. Contents of this written report were taken down in the concerned check first
information report at case crime no. 43 of 2009, under sections 302, 504 I.P.C. and at case crime
no. 44 of 2009, under section 4/25 Arms Act (against Raeesh). Check FIR is Ext. Ka. 4.

4. On the basis of entries so made in the check FIR, the case was registered against the
appellants in G.D. Entry No. 22 at 1.00 P.M. under aforesaid sections of I.P.C. and Arms Act,
respectively, on 15.2.2009 at Police Station Kotwali Nagar, District Aligarh, which G.D. entry is
Ext. Ka. 5.

5. It is also reflected from record and particularly from the testimony of Amar Pal Singh
P.W. 4, that a recovery memo of knife was also prepared by him which memo of recovery is Ext.
Ka-2, while Knife is material Ext. 2.

6. Thereafter, investigation of the case followed and was initially taken over by Mohd. Faiz
Kamal P.W. 6. He proceeded to Malkhan Singh Government Hospital Aligarh along with the other
police personnels and got prepared inquest report through S.I. Balram Singh Yadav which inquest
report is Ext. Ka. 8. In the opinion of witnesses of inquest report it was thought appropriate to send
the dead body for post-mortem examination for ascertaining real cause of death. Relevant papers,
for sending the dead body for autopsy, were prepared. In the process relevant papers-letter to R.I.,
letter to the Chief Medical Officer Aligarh, challan of dead body, Photo Nash etc. were prepared
and these papers have been proved as Ext. Ka. 9 to Ka. 13 by Mohd. Faiz Kamal PW-6.

7. Thereafter, the post mortem examination on the dead body of the deceased Irshad, took
place at mortuary Aligarh at 5.30 P.M. on 15.2.2009 wherein one ante mortem injury was noted
which is extracted hereinbelow as:-

"Stabbed wound at front of chest left side 4 cm medial to nipple at 9.30 O'clock
position; size of wound is 4 cm x 2 cm x chest cavity deep; partly clotted blood oozing from the
wound."

8. In the opinion of doctor, cause of death was due to shock and haemorrhage as a result of
ante mortem injury. This post mortem examination report has been proved by Dr. S.K. Sharma
P.W. 3 as Ext. Ka. 3.

9. The Investigating Officer Faiz Kamal PW-6 also proceeded to spot and prepared the site
plan at the instance of first informant (Bahar Ahmad @ Chhotey) which site plan is Ext. Ka.14. He
also found certain shoes and slippers scattered on the spot, and prepared memo of the same which
8 All. Raeesh Vs State Of U.P.
525
is Ext. Ka. 15. Thereafter, investigation was taken over by another Inspector Veer Pal Sirohi P.W.
5. He recorded statement of prosecution witnesses of fact and formal witnesses during the course of
investigation besides recording statement of the accused persons. After completing the
investigation Charge-sheet against the appellants was filed at case crime no. 43 of 2009 under
section 302, 504 I.P.C. which is Ext. Ka. 6. Charge sheet no. 34/09 filed in case crime no. 44 of
2009 against accused Raeesh under section 4/25 of the Arms Act- which is Ext. Ka. 7.

10. Thereafter, the case of the prosecution was committed to the court of Session where the
appellants were tried under aforesaid sections of I.P.C. and Arms Act, respectively. In this regard,
two Sessions Trials were conducted i.e. Sessions Trial No.395 of 2009 dealt with offences arising
out of case crime no. 43 of 2009 and Sessions Trial No. 396 of 2009 arising out of case crime no.
44 of 2009 against accused Raeesh under section 4/25 Arms Act, Police Kotwali Nagar, district
Aligarh.

11. Relevant to mention that both the aforesaid sessions trials were connected with the
same incident, therefore, both were consolidated and were disposed of by common judgment and
order dated 14.12.2010 passed by the Sessions Court, Aligarh.

12. The trial court heard the appellants on point of charge and, prima facie, ground was
found existing for framing charges under section 302/34, 504 I.P.C. against the appellants and
section 25 Arms Act. The accused persons denied the charges and opted for trial. Thereafter, the
prosecution was asked to adduce its testimony, whereupon the prosecution produced six witnesses
out of whom Bahar Ahmad @ Chhotey- PW-1 and Hazi Abdul Wahid PW-2 are said to be the eye
witnesses of the incident and they have described the manner of happening of occurrence. Out of
the two witnesses, Bahar Ahmad @ Chhotey PW- 1 is first informant, and brother of deceased
Irshad and Hazi Abdul Wahid P.W. 2 is uncle of deceased. Dr. S.K. Sharma P.W. 3 conducted
autopsy on the dead body of Irshad and has proved the post mortem examination report (Ext. Ka3). Constable Amar Pal Singh P.W. 4 has made certain entries in the concerned check FIR and the
G.D. entry on 15.2.2009. Besides, he has also proved material Ext. 2, the alleged weapon (knife)
used in the incident. The first Investigating Officer, who initiated the investigation after the report
was lodged on 15.2.2009 till evening of 15.2.2009 is Mohd. Faiz Kamal P.W. 6 He got prepared
inquest report Ext. Ka. 8, besides completing various other formalities like preparing relevant
papers for sending dead body of Irshad for post mortem examination at mortuary Aligarh.
Subsequently, the second, Investigating Officer Inspector Veer Pal Singh Sirohi, who took over the
investigation on the very same day (15.2.2009) around 10.40 P.M. recorded statement of various
witnesses including accused persons and filed charge sheets against the appellants.

13. Thereafter, the evidence for the prosecution was closed and statement of accused
person was recorded under section 313 Cr.P.C. wherein they termed their implication false on
account of enmity and alleged that the witnesses of fact being relative of the deceased are highly
interested witnesses. The appellants, on their turn got examined Mohd. Mumtiyaz @ Mumtaj son
of Babu Khan as D.W. 1. He has testified to the fact that he was not present on the spot at the time
of occurrence. He reached at the slaughter house around 7.30 A.M. on 15.2.2009 where he saw
526 INDIAN LAW REPORTS ALLAHABAD SERIES

Irshad lying on the ground seeped with blood. He has been cross examined at length by the
D.G.C.(Crl.)

14. Learned trial court after hearing both the sides on merit, passed the aforesaid impugned
judgment and order of conviction dated 14.12.2010 against the appellants and imposed on them
sentences (aforesaid).

15. Consequently this appeal.

16. It would be pertinent to record at this stage that one of the co-accused Hazi Rasheed,
who had also preferred Criminal Appeal No. 250 of 2011 against same impugned judgment and
order of conviction (14.12.2010), died during pendency of this appeal, as such his aforesaid appeal
stood abated vide order of this Court dated 4.7.2016.

17. We have been persuaded vigorously on behalf of the appellants on several specific
counts by contending that prosecution witnesses are chance witnesses. Their presence on the spot is
doubtful. Their conduct on the spot is not natural. Their testimony contradicts each-other in
material particulars. If testimony of one witness of fact is taken to be correct, then, testimony of the
other witness of fact is rendered highly unreliable. The manner and style of the occurrence is not
proved. Accused Raeesh is an old person and had undergone surgical operation of his stomach and
he was not in a position to cause knife blow on the deceased Irshad.

18. On the motive count, it can be said that the same is weak and not sufficient for
committing murder. Testimony of witnesses is partisan and they being relatives of the deceased, are
highly interested witnesses, as such, their testimony is wholly unreliable. Testimony of witnesses of
fact is not corroborated by testimony of any independent witness. Neither blood stained earth nor
simple earth was collected from the spot which renders place of occurrence doubtful. The first
information report is ante timed. In fact, the relevant general diary entry was stopped and FIR was
lodged only after preparation of inquest report.

19. The entire investigation was mechanically done by the two Investigating Officers and
no worthy evidence was collected which may justify filing of chargesheet and the conviction
against present appellants. The distance from place of occurrence to the police station is stated to be
2 Kms. as per reference contained in the check FIR. However, the report was lodged after one hour
of the incident which is ante timed. No weapon, in fact, was recovered from the possession of the
accused Raeesh and nature of injury sustained by the deceased cannot be caused by use of such
weapon. The description of manner of the incident by so called eye-witnesses virtually throws
doubt on the entire testimony of the witnesses particularly in the circumstances, when the father
and one son escaped from the scene leaving behind the (other) son to be caught on the spot ! Under
the circumstances, it is obvious that the deceased was killed somewhere-else in the darkness of
night by some unknown persons and the present appellants have been roped in, in this case on
account of enmity and 'Partibandi'. No effort was made by the Investigating Officer to send the
alleged knife for examination of finger print existing on it.
8 All. Raeesh Vs State Of U.P.
527
20. Learned counsel summed up that the appellants have also produced D.W. 1 Mumtiyaj
@ Mumtaj who has correctly testified that he reached at the slaughter house at 7.30 a.m. in the
morning where he found crowd of 40 to 50 persons and deceased Irshad was lying on the spot
seeped with blood. This story is self explanatory of fact that the incident did not take place around
12 noon on 15.2.2009. D.W. 1 has denied fact that he ever saw any such incident and that he took
the deceased on his motor cycle to the concerned govt. hospital. He has also denied the fact that he
ever saw the appellant Raeesh being caught by the informant.

21. Per contra, the aforesaid arguments have been replied by the learned A.G.As. by
submitting that it is broad day light occurrence when murder was caused in government slaughter
house. The place of occurrence is definite i.e. govt. slaughter house. The cause/motive for
occurrence is also established that the appellants insisted for taking the already purchased flesh of
animals of informant's side and when refused, the appellants retaliated with force and caused death
of Irshad without any reason. The report was promptly lodged at concerned police station.

22. There is no doubt about the place of occurrence-the govt. slaughter house and at the
time of occurrence, number of animals had been slaughtered and pool of blood of animals was
scattered all over the spot and the ground was more or less soaked with animals' blood, therefore, it
was not possible for the Investigating Officer to collect any blood stained soil. Had it been so done,
that could have been artificial act on the part of the Investigating Officer and question mark would
have been raised on such investigation. However, slippers/shoes left behind after the incident were
collected by S.I. Mohd. Faiz Kamal, Investigating Officer PW-6 and recovery memo of the same
was prepared which is Ext. Ka. 15. Not only this, the accused Raeesh was also caught on the spot
after little chase, just after murder of Irshad. In this backdrop of events, there was hardly any
possibility for sparing real accused and naming falsely innocent persons like the present appellants
and there is no such strong motive for false implication of the appellants if they were unconcerned
with the incident. Moreover, the motivating force behind the offence arose on the spot and their
adamant behaviour that was very specific to the point that the accused persons insisted upon taking
animals' flesh which had already been purchased by the informant's side.

23. The various details of the incident and the manner of assault and particularly the fact
that the two accused caught hold of the deceased Irshad and Raeesh gave knife blow on his chest,
stands corroborated by the medical testimony, therefore, it cannot be said that the testimony of the
prosecution witnesses of fact is not worthy of credence. On the contrary, their testimony on the
whole, is consistent, clinching and inspiring confidence. The presence of the prosecution witnesses
(of fact) on the spot is natural and there is no whisper from the circumstances or fact that the
incident was caused by some unknown persons in the darkness of night. Merely because, the
witnesses are close relatives of the deceased, will not be a ground for throwing away the
prosecution case in absence of any determination that these witnesses are highly inimical towards
the accused persons and were interested in ensuring conviction of the accused persons. Therefore,
the prosecution has proved its case beyond reasonable doubt against the appellants. Death of the
deceased cannot be said to have occurred during night, because, the doctor witness has himself
stated that the death of the deceased could have taken place between 12 noon to 12.15 p.m.
528 INDIAN LAW REPORTS ALLAHABAD SERIES

24. We have also considered above rival submissions.

25. The moot point that arises for our consideration is primarily confined to fact whether
the prosecution has been able to establish its case against the appellants beyond reasonable doubt?

26. The very foundation of the prosecution case is grounded in the written report Ext. Ka. 1
wherein allegations have been made against the appellants to the ambit that the occurrence took
place on 15.2.2009 around 12.00 noon and place of occurrence is govt. slaughterhouse and the
contractor of this slaughterhouse was Hazi Jaheer who had asked the first informant Bahar Ahmad
@ Chhotey to supervise work in the slaughterhouse. It is stated that while the work was under
progress, the accused persons namely Mohd. Raeesh son of Hazi Rasheed bearing knife in his hand
and his brother Hazi Munna son of Haji Rasheed in company with his father Hazi Rasheed son of
Jaleel came on the spot and insisted insolently upon purchasing goods (animals' flesh), which had
already been purchased and they were adamant that they alone will take all the above goods. The
first informant and his brother Irshad asked them not to do so whereupon Hazi Rasheed exhorted to
kill them and they should not be spared alive. At this stage, Hazi Munna and Hazi Rasheed caught
informant's brother Irshad and Mohd. Raeesh with intent to kill, gave knife blow on the chest of
Irshad due to which Irshad was seriously injured and he was taken to Malkhan Singh Government
Hospital Aligarh by Mumtaj son of Babu and Arif Munshi where, the doctor declared him dead.
The written report also alleges the fact that the first informant caught one of the accused Mohd.
Raeesh with knife on the spot with the help of Muddassir, Hazi Wahid and Hamid. Accused Haji
Munna and Haji Rasheed made their escape good towards Mathura Bye Pass Road. In the last line
of this report, it has been stated that informant has come to lodge this report with the captured
accused Mohd. Raeesh bearing knife.

27. Thereafter, the investigation ensued and Mohd. Faiz Kamal P.W. 6 was initially
entrusted with the investigation. He arrrived at the spot and took note of the situation and prepared
site plan and before doing so he rushed to Malkhan Singh Hospital where he got prepared the
inquest report. Preparation of inquest report commenced at 2.30 p.m. and ended at 4.30 p.m. on
15.2.2009 at Malkhan Singh Government Hospital Aligarh. Besides, the Investigating Officer also
prepared memo of certain slippers and shoes that were left over on the spot as a result of stampede
that followed the alleged incident.

28. Now, in such scenario, we may appraise and dip into factual testimony qua
circumstances of the case and particularly testimony of the two eye witnesses- PW-1 and PW-2 i.e.
Bahar Ahmad @ Chhotey and Hazi Abdul Wahid, respectively. Cummulative reading of their
testimony corroborates the contents of FIR when they say that the incident took place around 12
noon on 15.2.2009. At that point of time, Hazi Wahid, Muddassir, Hamid and deceased Irshad were
present in the concerned slaughterhouse. P.W. 1 (Bahar Ahmad @ Chhotey) was supervising work
over there and a number of traders had come for slaughtering of their animals. First informant P.W.
1 had purchased the slaughtered goods. Informant's brother Irshad was assisting the work. In the
meanwhile, the accused persons Hazi Munna Hazi Rasheed and Raeesh came over there abusing.
Raeesh was possessing knife in his hand and they insisted that none else, except they alone, will
8 All. Raeesh Vs State Of U.P.
529
take the goods and with such utterance they forcibly started taking away the goods (slaughtered
flesh), first informant (Bahar Ahmad @ Chhotey) and his brother Irshad opposed the same. Then
Hazi Rasheed exhorted to kill them and, in the meanwhile, Hazi Rasheed and Hazi Munna caught
hold of two hands of the deceased Irshad and Raeesh with intent to kill, pierced knife into his chest.
P.W. 1 and 2 and two others chased Raeesh and caught him with knife while Hazi Rasheed and
Haji Munna the other co-accused secured their escape good towards Mathura bye-pass.

29. It has also come in their testimony (PW-1 and PW-2) that the deceased was taken to
Malkhan Singh Government Hospital Aligarh by Arif and Mumtaj on motorcycle and thereafter
report was lodged at the police station where Raeesh was kept in confinement and seizure/recovery
memo of knife was also prepared. PW-1 Bahar Ahmad @ Chhotey has proved written report Ext.
Ka. 1 and also recovery memo of knife- Ext. Ka. 2. Testimony of both the above eye- witnesses
discloses fact that Irshad died in Malkhan Singh Government Hospital Aligarh. Both these
witnesses have been cross examined. In their cross examination, certain facts have emerged relating
to routine work of the government slaughterhouse that ordinarily, work begins at the
slaughterhouse around 7 a.m. but on the day of occurrence it started at 11.00 a.m. On that day
Bahar Ahmad @ Chhotey (PW- 1) went to slaughter house at 7.00 a.m. It also emerges from their
cross examination that on that day the goods (animals meant for slaughtering) were supplied
around 11.00 a.m. therefore, the work started at 11.00 a.m. and the incident took place around 12
noon when lot of work had been accomplished. A number of specific questions have been asked
from both the witnesses on the point of time, manner of assault and presence of accused on the
spot, which have been specific replied by the eye-witnesses; but nothing adverse emerged which
may throw any doubt on their testimony. Presence on the spot of the two eye-witnesses also
appears natural.

30. Perusal of their testimony (PW-1 and PW-2) on the whole appears to be clinching and
consistent on the point of description of the occurrence. It has not been suggested by the defence
that PW 1 Bahar Ahmad @ Chhotey was engaged somewhere-else in some other work. The
distance of police station from the place of occurrence has been stated to be 2 kms. Therefore,
lodging of the FIR at 1.00 P.M. after the incident took place around 12.00 noon, at police station
Kotwali Nagar District Aligarh, is found to be prompt one.

31. Perusal of the inquest report, Ext. Ka. 8, indicates that all the relevant details i.e. case
crime numbers, sections of I.P.C. commencement of preparation of inquest report at 2.30 p.m. and
its closure at 4.30 p.m. also indicates that prompt action was taken by the police soon after the
report was lodged about the incident in question.

32. Argument has been advanced that the FIR is ante time but such contention, in the face
of testimony and circumstances of this case, appears to be unsustainable in view of the fact that the
time of preparation of inquest report, suitably matches the relevant time of lodging of the FIR. At
this stage, it would be relevant to take note of the fact that the post mortem examination on the
dead body was done at 5.30 p.m. on 15.2.2009 itself. Police Form No. 13 challan of dead body Ext.
Ka. 10 reflects that the dead body was sent for post mortem examination after 4.30 p.m. on
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15.2.2009 and the same was received at mortuary at 5.20 p.m. Each and every relevant paper made
during course of investigation has been proved by the prosecution witnesses. Therefore, argument
that the first information report is ante time, cannot be accepted under the facts and circumstances
of the case.

33. A number of questions have been asked regarding non presence of these two witnesses
(PW-1 and PW-2) on the spot whereupon, it has been testified by both the witnesses P.W. 1 and 2
that at that relevant point of time, they were engaged in slaughtering of animals at the govt.
slaughterhouse. Their presence at any other place at that point of time, can not be inferred from
their cross examination and examination in chief.

34. Relevant to mention that doubt has been tried to be raised regarding place of
occurrence because no blood stained earth/soil and simple earth/soil was collected by the
Investigating Officer from the spot. But testimony has come forth from Mohd. Faiz Kamal PW- 6
that he prepared site plan at the instance of first informant PW- 1. He has been cross examined on
the relevant point of collection of blood stained earth from place of occurrence wherein he has
stated that blood in plenty was spread all over the places and certainly this blood was due to the
slaughtering of animals in the concerned slaughter house, therefore, it was virtually impossible to
collect exclusively any blood sample from the spot. Moreover, the witnesses of fact have also been
cross examined on this point and they have stated that the blood had not spilled on the ground but it
remained confined to the clothes of the deceased. Therefore, collection of blood from the spot was
not possible. Moreso, regarding presence of the prosecution witnesses and particularly presence of
Raeesh on the spot is virtually admitted to the defence when it suggested that Raeesh in fact was
caught at a distance of 50-60 steps by the first informant, which suggestion has been denied that
this is not correct to say that the first informant ran for about 50-60 steps and then caught Raeesh. It
has been testified by P.W. 1 on page-33 of the paper book that Raeesh was chased and caught after
running 5-6 steps. This way, by extending particular suggestion, defence has admitted the presence
of the witnesses of fact on the spot. Both the witnesses have testified in their cross examination that
the place of the occurrence has been shown to the Investigating Officer, who visited the spot at 5.30
p.m. on 15.2.2009, therefore, presence of both the witnesses of fact P.W. 1 and P.W. 2, on the spot
is established.

35. Now, so far as the motive point of the offence is concerned, it can be conveniently
observed, that motive has got no significance in view of the ocular testimony of the offence by the
two witnesses of fact. However, motive suggested is quite relevant that accused persons said that
they will take away the goods which had already been purchased by the first informant and on the
refusal of the same, the accused persons became adamant and insisted for delivery of the goods and
started taking away the goods and in the process the offence was committed. Therefore, the motive
to commit crime was act of the accused themselves on the spot and it just preceded the incident and
this fact has been satisfactorily proved by the two prosecution witnesses of fact.

36. One particular aspect of the case engages our attention that both the witnesses have
described the incident, manner of assault and have stated that after the assault was caused on the
8 All. Raeesh Vs State Of U.P.
531
chest of deceased Irshad, he did not fall down on the ground, but the witnesses caught him while he
was in the process of falling down. This particular description of occurrence is very special and
persons who were present on the spot alone, can describe the incident in such a manner. We are
conscious of fact that certain minor contradictions are bound to be there but both the witnesses of
fact have proved comprehensively about the manner and style of the occurrence, which testimony,
under facts and circumstances, is unimpeachable, therefore, we see no reason to disbelieve their
version.

37. Our attention has also been invited to the testimony of P.W. 2 Hazi Abdul Wahid in the
last paragraph of his cross examination as appearing on Page 59 of the paper book when this
witness has stated that Irshad deceased came on the spot around 11.00 a.m., whereas, in the
testimony of PW-1, it has been described that Irshad had accompanied him to the concerned
slaughter house from the house. But, this variation cannot be said to have any relevance about
absence of the deceased at the relevant point of occurrence which took place around 12.00 noon.
Therefore, the statement so appearing in the cross examination of P.W. 2 does not effect the fact of
presence of deceased Irshad on the spot. This statement may be taken as an isolated aberration and
will not have any relevance on the actual occurrence.

38. At this stage, it would be relevant to have appraisal of testimony of doctor witness P.W.
3 S.K. Sharma who conducted post mortem examination on the body of deceased Irshad in order to
assess the approximate time of death of the deceased as to when death of Irshad took place. This
doctor witness has testified that he conducted the post mortem examination on the dead body of
Irshad on 15.2.2009 around 5.30 p.m., on the date when the incident took place. Only one ante
mortem injury in form of stab wound on front of chest left side 4 cm medial to nipple on 9.30
O'clock position measuring 4 cm x 2 cm x cavity deep was found. Wound was partly clotted and
blood oozing from the wound. Duration of death was stated to be within six hours. Cause of death
was due to shock and haemorrhage as a result of aforesaid ante mortem injury. It has come in the
testimony of prosecution witnesses of fact particularly P.W. 1 that he cannot say whether the
deceased had taken any break fast in the morning of 15.2.2009 or not. The Doctor has submitted
that the deceased might have taken food 4-5 hours before his death. However, in the post mortem
report, stomach has been shown to be empty. Therefore, opinion of doctor that the deceased might
have taken food 4-5 hours before his death remains an opinion based on his personal knowledge
and cannot be applied squarely in this case and it cannot be said whether the deceased had taken
any food or breakfast in the morning of fateful day or not. Doctor has himself opined in the last line
of his examination in chief that death in question could have occurred around 12.00 noon to 12.15
P.M. This specific testimony regarding time of death has neither been challenged nor put to any
doubt in cross examination by the appellants. In this view of the matter, there is no doubt regarding
approximate time of death that coincides with occurrence and we have discussed above about the
incident that it took place around 12 noon on 15.2.2009.

39. Now, we may also consider and analyze the attendant circumstances of the case as
appearing in the testimony on record vis a vis the fact of the case. Obviously, the first informant
used to supervise slaughtering work of animals at the govt. slaughter house where work in fact
532 INDIAN LAW REPORTS ALLAHABAD SERIES

started around 11.00 A.M. though the routine work at the govt. slaughterhouse usually began at
7.00 a.m., but on the day of occurrence, the goods/material (animals) meant for slaughtering was
received late around 11.00 a.m., therefore, work on the day of the incident began at 11.00 a.m. and
when the major part of slaughtering work had been over, three accused persons arrived on the spot
amongst whom Raeesh was possessing knife, thereafter the accused persons became insolent and
adamant and demanded purchased goods (i.e. animals' flesh) which demand was resisted by the
informant's side and this was the motivating factor for causing assault, injury and death of Irshad
by the appellants. Here, conjoint act on the part of all the accused and particularly two accused who
caught hold of the hands of the deceased shows that the act was done in furtherance of common
intention of all the accused persons who had the common intention to commit the offence which
they intended.