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

- **Citation:** (2020) 10 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-15
- **Case number:** Criminal Appeal No. 1581 of 2002
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/safat-in-jail-v-state-of-u-p-45367
- **Pages:** 9

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Section 134 - The trustworthy evidence
given by a single witness would be
enough to convict the accused whereas
the
evidence
given
by
half-a-dozen
witnesses which is not trustworthy, would
not be enough to sustain conviction.

It is the quality and not the quantity of evidence
that is important and the court can record
conviction on the basis of a solitary witness
provided the evidence is trustworthy and
credible.

Evidence Law - Indian Evidence Act, 1872-
Section
134
-
Solitary
witness-
Contradictions- Absence of corroboration-
Other witnesses hostile- The presence of
P.W.-1 at the shop of the deceased-No
convincing reason for his presence at the
place of occurrence coupled with the fact
that he claims that his pant had sustained
blood stains which were not disclosed by
him to the Investigating Officer and even
the Investigating Officer did not see the
same on his clothes with the further fact
that the two eye witnesses mentioned by
him in the F.I.R., P.W.-2 and P.W.-3, have
not supported the prosecution case and
have been declared hostile, the presence
of P.W.-1 at the place of occurrence is
highly doubtful. Recovery as shown of a
country-made pistol of 12 bore and one
empty cartridge embedded in the same,
no charge under the Arms Act has been
framed, the charge sheet also has not
10 All. Safat Vs. State of U.P.
9
been submitted by the police under any
provisions of the Arms Act- No sanction on
record of the District Magistrate for
prosecuting the appellant under the Arms
Act. The appellant was not tried under the
Arms Act. The report of ballistic expert
even does not corroborate the use of the
said weapon. The testimony of P.W.-1
remains uncorroborated with any other
evidence.
P.W.-1

is
an
interested,
artificial and unnatural witness and was
not present at the place and time of
occurrence and is thus totally unreliable.
The conviction of the appellant on the
basis of sole testimony of P.W.-1 by the
trial court is not sustainable in the eyes of
law.

Where the presence of the solitary witness at
the place of the occurrence is doubtful and his
testimony fails to get corroboration from other
evidence,
the
other
witnesses
have
not
supported the story of the prosecution, then the
conviction of the accused on the basis of such
testimony cannot be secured.

Criminal Appeal allowed. (Para 19, 23, 24,
25, 26, 27, 28) (E-3)

Case law relied upon/ Discussed:-

## Text

8 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficient to conclude that five or more
persons were involved in the offence and
not sufficient to convict appellants, who are
three in numbers under the offence of
dacoity.

14. In view of above, prosecution has
completely failed, in the present case,
either to prove the participation of five or
more persons in commission of offence or
establish their identity. Therefore, in my
considered
view
the
conviction
and
sentence of appellants is being repugnant to
letter and spirit of Sections 391 and 396
IPC, the same cannot be sustained.

15. In the result, appeal is allowed.
Judgment and order dated 11.03.1983
passed by Sri D.C. Srivastava, Judge
Special Court (Dacoity), Kanpur Dehat in
Session Trial No. 467 of 1981 (State vs.
Balbir and others), is hereby set aside. The
appellants are acquitted of the charges and
are hereby ordered to be set at liberty
forthwith. The bail bonds stand discharged.

16. Lower Court record alongwith a
copy of this judgment be sent back
immediately to District Court concerned for
compliance and further necessary action.

17. Before parting, this Court
appreciates the assistance given by Sri
Pranvesh,
Advocate
appearing
for
appellants, though he was initially hesitant
to argue this appeal, being his first criminal
appeal before this Court.
----------
(2020)10ILR A8
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1581 of 2002

Safat ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Petitioner:
Sri S. Alim Shah, Sri M.J. Akhtar, Sri Tiwari
Abhishek Rajesh, Sri V.M. Zaidi

Counsel for the Opposite Party:
A.G.A., Sri Siddharth Sinha, Sri Siddharth
Srivastava

Evidence Law - Indian Evidence Act, 1872-
Section 134 - The trustworthy evidence
given by a single witness would be
enough to convict the accused whereas
the
evidence
given
by
half-a-dozen
witnesses which is not trustworthy, would
not be enough to sustain conviction.

It is the quality and not the quantity of evidence
that is important and the court can record
conviction on the basis of a solitary witness
provided the evidence is trustworthy and
credible.

Evidence Law - Indian Evidence Act, 1872-
Section
134
-
Solitary
witness-
Contradictions- Absence of corroboration-
Other witnesses hostile- The presence of
P.W.-1 at the shop of the deceased-No
convincing reason for his presence at the
place of occurrence coupled with the fact
that he claims that his pant had sustained
blood stains which were not disclosed by
him to the Investigating Officer and even
the Investigating Officer did not see the
same on his clothes with the further fact
that the two eye witnesses mentioned by
him in the F.I.R., P.W.-2 and P.W.-3, have
not supported the prosecution case and
have been declared hostile, the presence
of P.W.-1 at the place of occurrence is
highly doubtful. Recovery as shown of a
country-made pistol of 12 bore and one
empty cartridge embedded in the same,
no charge under the Arms Act has been
framed, the charge sheet also has not
10 All. Safat Vs. State of U.P.
9
been submitted by the police under any
provisions of the Arms Act- No sanction on
record of the District Magistrate for
prosecuting the appellant under the Arms
Act. The appellant was not tried under the
Arms Act. The report of ballistic expert
even does not corroborate the use of the
said weapon. The testimony of P.W.-1
remains uncorroborated with any other
evidence.
P.W.-1

is
an
interested,
artificial and unnatural witness and was
not present at the place and time of
occurrence and is thus totally unreliable.
The conviction of the appellant on the
basis of sole testimony of P.W.-1 by the
trial court is not sustainable in the eyes of
law.

Where the presence of the solitary witness at
the place of the occurrence is doubtful and his
testimony fails to get corroboration from other
evidence,
the
other
witnesses
have
not
supported the story of the prosecution, then the
conviction of the accused on the basis of such
testimony cannot be secured.

Criminal Appeal allowed. (Para 19, 23, 24,
25, 26, 27, 28) (E-3)

Case law relied upon/ Discussed:-

1. Masalti Vs St. of U.P., AIR 1965 SC 202

2. Vadivelu Thevar Vs St. of Madras, AIR 1957
SC 614

3. Laxmibai (Dead) thru Lrs. & anr Vs
Bhagwantbuva (Dead) thru Lrs. & ors, (2013) 4
SCC 97

(Delivered by Hon'ble Samit Gopal, J.)

1. This appeal has been preferred
against the judgement and order dated
4.3.2002 passed by the Additional Sessions
Judge, Court No. 8, Moradabad in Sessions
Trial No. 1408 of 2000 (State of U.P. Vs.
Safat and two others) whereby Safat has been
convicted and sentenced under Section 302
I.P.C. for life imprisonment along with a fine
of Rs.5,000/- and in default of payment of
fine, he has been directed to undergo six
months additional rigorous imprisonment. In
so far as the other two accused persons who
were tried before the trial court namely,
Firasat and Liyaqat are concerned, they have
been acquitted by the same judgement and
order of the charges levelled against them
under Sections 302/34 of Indian Penal Code,
1860.

2. The prosecution case as per the first
information report lodged by Jamal (P.W.-1)
is that his nephew Nasiruddin had an enmity
with Safat as Safat wanted the shop of
Nasiruddin to be closed. On the fateful night
i.e. 18.9.2000 at about 10.15 P.M. Nasiruddin
was standing outside his shop in mohalla
Chaudhary Sarai, Sambhal near Bhatthi and
was talking to the first informant and Rasid
Hussain wherein Safat who was armed with
country-made pistol along with Firasat and
Liyaqat came and Safat said that Nasiruddin
will not close his shop and as such he will be
finished and further, Safat fired on the hip
region of Nasiruddin with an intention to kill
him as a result of which he received injury
and fell down on the road. It is stated that the
said incident was witnessed by the first
informant Jamal P.W.-1, Mohd. Subhan, who
was examined as P.W.-2 and Rasid Husain,
who was examined as P.W.-3, who had come
there to meet the first informant, in the light
of a lantern, which was burning there and
spreading ample light. It is stated that the
accused persons then ran away threatening all
the three persons present there. It is then
stated that Nasiruddin in an injured condition
was taken to the hospital from where the
doctor referred him to Moradabad. The
condition of Nasiruddin was stated to be
precarious.

3. The first information report was got
registered by Jamal on 18.9.2000 at 23.10
hours under Section 307 I.P.C. The same is
10 INDIAN LAW REPORTS ALLAHABAD SERIES
Ex. Ka-9 of the records. An application dated
18.9.2000 was given by Jamal for lodging of
the F.I.R. which is marked as Ex. Ka-1 of
which Gopal Shukla is the scribe and the
same has been registered as Case Crime No.
375 of 2000 at Police Station Kotwali
Sambhal, District Moradabad which is
having distance of about two kilometers from
the place of occurrence. Nasiruddin is the
deceased in the present matter and his post
mortem examination was conducted on
19.9.2000 at 02.40 P.M. by Dr. Mohammad
Tareek Ali (P.W.-5) which is marked as Ex.
Ka-5. The doctor found the following ante
mortem injuries on the body of the deceased:-

(a) A gun shot wound of entry on
the back of the left side of abdomen. Size of
wound of entry is 3.0x3.0 cm X cavity deep.
Blackening around the wound present.
Wound is 8.0 cm below the scapular region.
About 1.5 litre blood in the abdominal cavity
and one cap plastic and 13 small metallic
pellets recovered from the abdominal cavity.
15 small metallic pellets from left lung and 5
small metallic pellets from left kidney
recovered.

The cause of death has been opined
to be shock due to haemorrhage as the result
of anti mortem injuries.

4. Investigation in the present matter
was taken up and a charge sheet being
Charge Sheet No. 158 of 2000 dated
06.10.2000 was submitted against all three
accused persons under Section 302 I.P.C. The
same is marked as Ex.Ka-6 to the records.

5. The trial court on 3.3.2001 framed
charges against all three accused persons
under Section 302 I.P.C. The accused
pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove
its case examined Jamal P.W.-1 the first
informant and the uncle of the deceased as
an eye witness, Mohd. Subhan P.W.-2 a covillager as another eye witness and Rasid
Hussain P.W.-3 who is also a co-villager as
an eye witness of the occurrence and
Rakesh Pratap Singh being the second
Investigating Officer from 20.9.2000 till
conclusion of the same as P.W.-4, Dr.
Mohamnad Tareeq Ali, who conducted the
post mortem examination as P.W.-5,
Surendra
Singh
Barach,
the
first
Investigating Officer up to 19.9.2000 only
as P.W.-6 and Ms. Rajeshwari Saxena,
Assistant Sub-Inspector, who conducted the
inquest on the body of the deceased at
mortuary at Sadar Hospital, Moradabad on
the information of sweeper of the hospital
as P.W.-7. The accused denied the
occurrence and claimed false implication
due to enmity. No defense evidence was
led.

7. The trial court after considering the
entire evidence on record came to the
conclusion that murder of Nasiruddin was
committed by the accused-appellant Safat by
firing upon him from a country-made pistol
which he was carrying at the time and the
place of occurrence and the manner as stated
by the prosecution, convicted him whereas
found that the implication of Firasat and
Liyaqat is not borne out and thus, acquitted
them of the charges levelled against them.

8. We have heard Sri Tiwari
Abhishek Rajesh, learned counsel for the
appellant-Safat and Ms. Kumari Meena,
learned A.G.A. for the State of U.P. and
perused the entire record including the
impugned
judgement
and
order
of
conviction. Sri Siddharth Sinha and Sri
Siddharth Srivastava, learned counsels for
the first informant are not present though
the matter has been called out in the revised
list.
10 All. Safat Vs. State of U.P.
11

9. In the present case Safat was
arrested on 24.9.2000 and it is alleged that
he gave his confessional statement to the
police and further stated that he will get the
weapon of assault recovered and it is stated
that on his information he was taken to the
said place and then from somewhere
around the root of a tree in a bush he took
out a polythene having some articles which
were found to be a country made pistol of
12 bore having one empty cartridge in it.
The recovery memo of the same is Ex. Ka3 to the records.

10. Learned counsel for the appellant
has made the following submissions:

(i) The presence of P.W.-1 Jamal
is doubtful and as a matter of fact he was
not present at the time and the place of
occurrence so as to witness the said
incident as stated by him.

(ii) The reason for murder is other
than that mentioned by the prosecution
which has been specifically put to P.W.-1
in the cross-examination though it has been
denied by him.

(iii) The alleged recovery of
country made pistol along with empty
cartridge
in
it
is,
in
no
manner,
incriminating. The alleged recovery is
manipulated as the police did not even
make an attempt to secure any independent
witness to the said recovery which thus is
not supported by the evidence of any
independent witness. The same was alleged
to be recovered from an open place easily
accessible by all. The the alleged recovered
weapon
was
sent
for
the
ballistic
examination and the ballistic report which
is Ex. Ka-19 does not, in any manner, opine
that the said weapon was used in the
present
murder.
It
is
thus
argued
cumulatively that the alleged recovery of
said weapon is not incriminating, in any
manner, and the use of the said weapon
does
not
find
corroboration
in
the
prosecution case at all.

(iv) The conduct of P.W.-1 is
wholly unjustified which would clearly go
to show that he was not present at the place
of occurrence.

11. Learned A.G.A., on the other
hand, opposed the submissions of learned
counsel for the appellant by arguing that
the presence of P.W.-1 cannot be doubted
and he is a natural witness to the incident.
It is argued that though he is a related
witness but same would not, in any manner,
go to show that he is not a credible witness.
His testimony is of the nature of true and a
truthful witness. The appeal lacks merit
which is liable to be dismissed.

12. P.W.- 1 Jamal is the first
informant of the present case. He is a
relative of the deceased and has stated the
deceased was his nephew (bhanja). He
claims himself to be an eye witness of the
incident. While being examined in trial
court in the examination-in-chief, he has
stated that the deceased Nasiruddin had no
enmity with anyone. He further in his
statement stated that he does not know as to
which accused was armed with which
weapon as he was standing there and
talking. While assigning the roles to the
accused persons in the examination-inchief later on he has stated that accused
Liyaqat and Firasat (two acquitted persons)
had caught hold of Nasiruddin and Safat
had shot him. While being cross-examined
regarding motive for the appellant to
commit the offence, he has stated that the
deceased had no enmity with any person.
He is the resident of the same village and
stated to be known to the accused persons.
He stated to be present at the place of
occurrence for drinking milk. He further
12 INDIAN LAW REPORTS ALLAHABAD SERIES
states that in spite of the fact that he also
has a shop of milk, he had on the fateful
night come at around 9.00 P.M. at the shop
of the deceased to drink milk and had no
other work. While being cross-examined he
has admitted the fact that had he not come
to drink milk he would not have seen the
occurrence. The purpose regarding the
presence of P.W.-1 being present at the
place of occurrence is missing in the F.I.R.
and was also missing in his statement
recorded during investigation. The same
has been stated by him for the first time in
the trial court while being cross-examined.
Further he states that blood had spilled over
on his pant which he was wearing at the
time of occurrence but he did not show the
same to anyone and even to the police. He
states that the police arrested Safat on the
same night and he was kept at the police
station for about two days and then he was
challaned and a recovery of weapon was
effected on his pointing out. On a
suggestion to him that he has not seen the
occurrence and is not an eye witness, he
denied the same.

13. Mohd. Subhan who has been
mentioned as one of the eye witnesses in
the F.I.R. and in the statement of P.W.-1,
was examined as P.W.-2 who has at the
very
outset,
denied
his
seeing
the
occurrence and his presence at the place of
occurrence. He has been then declared
hostile by the prosecution and was crossexamined by the prosecution but no benefit
could be drawn from his statement by the
prosecution.

14. Even Rasid Hussain who has been
examined
as
P.W.-3
and
was
also
mentioned as an eye witness to the incident
in the F.I.R. and in the statement of P.W.-1,
has also denied his seeing the occurrence
and his presence at the place of occurrence.
He has been then declared hostile by the
prosecution and was cross-examined by the
prosecution but no benefit could be drawn
from his statement by the prosecution.

15. Now after the evidence of P.W.-2
Mohd. Subhan and P.W.-3 Rashid Hussain
was completed and they were declared as
hostile witnesses by the prosecution, the
present case rests on the sole testimony of
P.W.-1 Jamal who is the first informant and
the maternal uncle of the deceased as the
sole eye witness of the incident.

16. Surendra Singh Barach P.W.-6 is
the first Investigating Officer of the present
matter. He took up the investigation from
the date of lodging of the first information
report i.e. 18.9.2000 and the matter
remained with him till the next day i.e.
19.9.2000. While proceeding with the
investigation he states to have recorded the
statement of scribe of the first information
report and the first informant and he then
proceeded
along
with
Sub-Inspector
Shivraj Singh to the place of occurrence
and inspected the spot of the occurrence at
the pointing out of the first informant. He
further
states
to
have
recorded
the
statement of other witnesses and prepared
the site plan which is marked as Ex. Ka-7
to the records. He collected the blood
stained mud and plain mud and also took in
his possession the lantern which was said to
be the source of light at the place of
occurrence. The recovery memo of the said
lantern is marked as Ex. Ka-2 and the
recovery memo of the mud is marked as
Ex.Ka-8. He then took steps for arrest of
the accused persons and on receiving of
information regarding the death of the
deceased
Nasiruddin
the
matter
was
converted into one under Section 302 I.P.C.
The case was then taken over from him. In
his cross-examination he has stated that
10 All. Safat Vs. State of U.P.
13
Jamal did not inform him that he was
drinking milk at the time of occurrence
while he was being interrogated under
Section 161 Cr.P.C. He further stated that
he did not see blood stains on the clothes of
Jamal and if he would have seen the blood
stains, then he would have surely taken
them in his custody.

17. Rakesh Pratap Singh the second
Investigating Officer was examined as
P.W.-4. He took up the investigation of the
case from 20.9.2000. He states to have
arrested Firasat and Liyaqat on the same
day and then later on recorded the
statement of the witness of recovery of
lantern. He states to have arrested the
appellant-Safat on 24.9.2000 and had
recorded his statement and in furtherance
of the same proceeded for recovery of the
weapon of assault on the pointing out of
Safat. He states that Safat from the bushes
and roots of a tree took out a country-made
pistol and a cartridge wrapped in polythene
for which recovery memo was prepared by
him which is marked as Ex. Ka-3 to the
records. He then states to have recorded
certain statement of some witnesses on
1.10.2000 and prepared the site plan of the
place of recovery, sent the recovered
material to the ballistic expert on 4.10.2000
and later on submitted a charge sheet no.
158 of 2000, which is marked as Ex. Ka-6
to the records. He was shown the countrymade pistol and cartridge which he
identifies in the court as that which was got
recovered on the pointing out of accusedappellant Safat. In his cross-examination he
states that he did not make any public
person as witness to the recovery which is
situated at about two kilometers away from
the police station and is at the end of
Abadi. Further he states that there is no
signature of the accused on the recovery
memo (Ex.Ka-3) and he does not know
whether a copy of the same was given to
the accused and receipt was taken from
him. On the suggestion to him that the
accused was not arrested on the said date
he denied the same. Further on the
suggestion that the said recovery is a false
recovery he denied even the same. He
further denied the suggestion that the first
information
report
was
lodged
in
consultation with the police and is ante
timed.

18. Section 134 of the Indian
Evidence Act, 1872 reads as under:

"134. Number of witnesses.--No
particular number of witnesses shall in any
case be required for the proof of any fact."

19. The law regarding the case where
there is a single witness, has been well
settled by the Hon'ble Apex Court in the
case of Masalti Vs. State of U.P., AIR
1965 SC 202 wherein it has been held that
under the Evidence Act the trustworthy
evidence given by a single witness would
be enough to convict the accused whereas
the
evidence
given
by
half-a-dozen
witnesses which is not trustworthy, would
not be enough to sustain conviction.

20. Dealing with a situation where the
case rests on the testimony of a single
witness, in the case of Vadivelu Thevar Vs.
State of Madras, AIR 1957 SC 614, the
Hon'ble Apex Court has laid down the test
to assess the quality of oral evidence led by
the prosecution for proving or disproving a
fact. It was held therein that "..........
Generally speaking oral testimony in this
context may be classified into three
categories, namely (1) wholly reliable (2)
wholly unreliable and (3) neither wholly
reliable nor wholly unreliable. In the first
category of proof, the Court should have no
14 INDIAN LAW REPORTS ALLAHABAD SERIES
difficulty in coming to its conclusion either
way- it may convict or may acquit on the
testimony of a single witness, if it is found
to be above reproach or suspicion of
interestedness,
incompetence
or
subornation. In the second category, the
court equally has no difficulty in coming to its
conclusion. It is in the third category of
cases, that the court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial. There is another danger in
insisting
on
plurality
of
witnesses.
Irrespective of the quality of the oral evidence
of a single witness, if courts were to insist on
plurality of witnesses in proof of any fact,
they
will
be
indirectly
encouraging
subornation of witnesses. Situations may
arise and do arise where only a single person
is available to give evidence in support of a
disputed fact. The court naturally has to
weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free
from all taints which tend to render oral
testimony open to suspicion, it becomes its
duty to act upon such testimony. There are
exceptions to this rule, for example, in cases
of sexual offences or of the testimony of an
approver; both these are cases in which the
oral testimony is, by its very nature, suspect,
being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable."

21. Further in the case of Laxmibai
(Dead) through Lrs. and Another Vs.
Bhagwantbuva (Dead) through Lrs. and
others, (2013) 4 SCC 97, it has been held
by the Hon'ble Apex Court as under:

"39. In the matter of appreciation
of evidence of witnesses, it is not the
number of witnesses but quality of their
evidence which is important, as there is no
requirement in law of evidence that any
particular number of witnesses is to be
examiprotectionned to prove/disprove a
fact. It is a time honoured principle that
evidence must be weighed and not counted.
The test is whether the evidence has a ring
of truth, is cogent, credible and trustworthy
or otherwise. The legal system has laid
emphasis on value provided by each
witness, rather than the multiplicity or
plurality of witnesses. It is quality and not
quantity, which determines the adequacy of
evidence as has been provided by Section
134 of the Evidence Act. Where the law
requires the examination of at least one
attesting witness, it has been held that the
number of witnesses produced do not carry
any weight."

22. In the present matter the
testimony of P.W.-1 Jamal is only left to be
examined by this Court as he is the sole eye
witness supporting the prosecution case
after P.W.-2 Mohd. Subhan and P.W.-3
Rashid Hussain have been declared hostile
and the prosecution could not gain any
advantage even by cross examining them.

23. In the F.I.R. lodged by P.W.-1
Jamal it has been mentioned that there was
an enmity of the deceased with the present
appellant Safat in regard to shop being run
by the deceased. While being crossexamined he has stated that there was no
enmity of the deceased with any shop
keeper. In so far as the presence of P.W.-1
Jamal at the place of occurrence is
concerned, he has stated that he had
reached the shop of the deceased which is
the place of occurrence to take milk and
has further stated that even he has a shop of
milk, but on the fateful night had come to
the shop of the deceased to consume milk.
The fact regarding the reason for the
10 All. Safat Vs. State of U.P.
15
presence of P.W.-1 Jamal at the place of
occurrence is conspicuously missing in the
first information report and even in his
statement given before the Investigating
Officer during investigation.

24. He further states that his pant
sustained blood of the deceased in the
process of his being shifted to the hospital
in an injured condition but he did not show
the
same
to
the
police.
Even
the
Investigating Officer P.W.-6 Surendra
Singh Barach, who is the first Investigating
Officer, has in his statement stated that he
did not see any blood stains in the clothes
of Jamal and had he seen the blood stains,
he would have certainly taken the same in
custody.
Except
for
the
reason
of
consuming milk on the fateful night as for
substantiating the presence of P.W.-1 Jamal
at the shop of the deceased, that too, which
was not as a routine by him, there is no
other convincing reason for his presence at
the place of occurrence coupled with the
fact that he claims that his pant had
sustained blood stains which were not
disclosed by him to the Investigating
Officer and even the Investigating Officer
did not see the same on his clothes with the
further fact that the two eye witnesses
mentioned by him in the F.I.R. being
Mohd. Subhan P.W.-2 and Rashid Hussain
P.W.-3 have not supported the prosecution
case and have been declared hostile, the
presence of P.W.-1 Jamal at the place of
occurrence is highly doubtful.

25. Coming to the recovery as shown
of a country-made pistol of 12 bore and one
empty cartridge embedded in the same, no
charge under the Arms Act has been
framed and even, the charge sheet also has
not been submitted by the police under any
provisions of the Arms Act. There is also
no sanction on record of the District
Magistrate for prosecuting the appellant-
Safat under the Arms Act. The appellant
was not tried under the Arms Act. P.W.-4
Rakesh Pratap Singh, who is the second
Investigating
Officer,
has
in
his
examination-in-chief
stated
about
the
recovery of the said weapon and has proved
the recovery memo as Ex. Ka-3, but while
being cross-examined he has admitted the
fact that he did not make any public person
as a witness to the said recovery. Even
from perusal of Ex. Ka-3 which is the
recovery memo of the recovery of the
alleged weapon, it is clear that the
Investigating Officer did not make any
effort whatsoever to secure the presence of
any
public
witness.
In
the
crossexamination he has admitted that in the Ex.
Ka-3 there is no signature of the accused
and he does not know as to whether any
copy of the same was given to him or not
and any receipt was taken from him or not.
It has been lastly suggested to him that the
entire process of recovery is false and there
was, as matter of fact, no recovery on the
pointing out of the appellant-Safat. The
report of ballistic expert which is Ex. Ka19 to the records even does not corroborate
the use of the said weapon. While giving
opinion after scientific examination the
ballistic expert came to a conclusion that it
is impossible to decipher as to whether the
death of the deceased is from the cartridge
found in the recovered weapon which has
been marked as EC-1.

26. The testimony of P.W.-1 Jamal
remains uncorroborated with any other
evidence. In the F.I.R. he had assigned the
role of exhortation to Firasat and Liyaqat
who have been acquitted of the charges
levelled against them and has assigned the
role of shooting upon the deceased by the
appellant, but later on while being
examined in the court he has assigned the
16 INDIAN LAW REPORTS ALLAHABAD SERIES
role of catching hold of the deceased to
Liyaqat and Firasat. He has even in his
examination-in-chief stated in specific
terms that the deceased Nasiruddin did not
have any enmity with anyone, but in the
F.I.R. had stated that he was having enmity
with the appellant- Safat due to the reason
of his running a shop.

27. Hence this Court comes to the
conclusion that P.W.-1 Jamal is an
interested, artificial and unnatural witness
and was not present at the place and time of
occurrence and is thus totally unreliable.

28. Thus the conviction of the
appellant on the basis of sole testimony of
P.W.-1 Jamal by the trial court is not
sustainable in the eyes of law. The trial
court committed error in recording the
conviction and sentence of the appellant.
Hence the impugned judgement and order
dated 4.3.2002 passed by the trial court is
liable to be set aside, which is accordingly
set aside.

29. The present appeal is allowed.

30. The appellant- Safat is in jail in
pursuance of non-bailable-warrant issued
by this Court vide order dated 18.9.2019,
he is directed to be released forthwith
unless wanted in any other case.

31. Keeping in view the provisions of
Section
437-A
Cr.P.C.
the
accusedappellant Safat is directed to forthwith
furnish a personal bond in terms of Form
No. 45 prescribed in the Code of Criminal
Procedure of a sum of Rs.25,000/- with two
reliable sureties in the like amount before
the court concerned which shall be
effective for a period of six months along
with an undertaking that in the event of
filing of Special Leave Petition against the
instant judgement or for grant of leave, the
aforesaid appellant on receipt of notice
thereof shall appear before the Hon'ble
Supreme Court.

31. The lower court record along with
a copy of this judgement be sent back
immediately to the trial court concerned for
compliance and necessary action.

32. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad
before
the
concerned
Court/Authority/Official.

33. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

34.

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.
----------
(2020)10ILR A16
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Appeal No. 2102 of 1983

Lakhan Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P.N. Misra, Sri A.N. Dayal, Sri Apul
Misra, Sri Sarvesh, Ms. Anjali Singh, Sri
Anoop Trivedi