# Saleem Ahmad v. State of U.P

- **Citation:** (2023) 10 ILRA 49
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-27
- **Case number:** Criminal Appeal No. 30 of 2014
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-ahmad-v-state-of-u-p-49458
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 323/149 & 325/149 -
Criminal Procedure Code, 1973 - Section
374(2) - Evidence Act, 1872 - Section 154
- Hostile Witnesses - Burden of Proof -
Presumption of Innocence - Contradiction
Between Ocular and Medical Evidence -
False
Implication-The
appellant,
Saleem
Ahmad, challenged the judgment and order
dated 11.12.2013 passed by the Additional
Sessions Judge, Sitapur, convicting him under
Sections 147, 148, 323/149, and 325/149 IPC
for rioting, armed rioting, causing hurt, and
causing
grievous
hurt,
respectively,
with
sentences ranging from one to three years of
simple imprisonment and fines.

Held: (1) The appeal was allowed, and the
impugned judgment was set aside, acquitting
50 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant of all charges. (2) The prosecution
failed to prove the appellant's guilt beyond
reasonable doubt, as the evidence was marred
by contradictions, particularly between the
ocular testimony of PW-1 (complainant) and
PW-2
(injured
witness)
and
the
medical
evidence, which showed only simple injuries
despite allegations of a severe assault. (3) PW-2
and PW-3, declared hostile, either contradicted
the prosecution's version or admitted to tutoring
and political rivalry, rendering their testimony
unreliable, as per Khujji @ Surendra Tiwari Vs
St. of M.P. and Sucha Singh Vs St. of Punj.. (4)
The absence of specific allegations against the
appellant,
combined
with
the
lack
of
independent witnesses and evidence of a prior
land dispute and political rivalry, indicated false
implication due to personal vendetta. (5) The
medical evidence did not support the claim of
grievous injury (parietal bone fracture) under
Section 325 IPC, as the prosecution failed to
prove it beyond reasonable doubt due to
discrepancies in the medical report and absence
of the examining doctor. (6) The trial court
erred in relying on presumptions and the
testimony of the investigating officer (PW-6)
without corroborative evidence, violating the
principle that conviction cannot be based on
conjectures, as per Amar Singh Vs St. of Punj.
and Viram Vs St. of M.P.. (7) The maxim falsus
in uno, falsus in omnibus does not apply in
India, but the court must separate reliable
evidence from unreliable, and the prosecution's
failure to establish a conclusive chain of
circumstances warranted acquittal.

Case Law Cited:

## Text

10 All. Saleem Ahmad Vs. State of U.P.
49
any court or otherwise to secure the ends of
justice."

14.
While
no
one
with
a
legitimate cause or grievance should be
prevented from seeking remedies available in
criminal law, a complainant who initiates or
persists with a prosecution, being fully
aware that the criminal proceedings are
unwarranted and his remedy lies only in
civil
law,
should
himself
be
made
accountable,
at
the
end
of
such
misconceived
criminal
proceedings,
in
accordance with law. One positive step that
can be taken by the courts, to curb
unnecessary prosecutions and harassment of
innocent parties, is to exercise their power
under Section 250 CrPC more frequently,
where they discern malice or frivolousness or
ulterior motives on the part of the
complainant. Be that as it may."

10. प्रस्तुत िािले िें भी ऐसा प्रतीत होता है मक
व्यावसामयक मववाि िें मववामित िनरामश प्राप्त करने के मलए प्रार्थी पर
अनुमचत िबाव डालने के उद्देश्य से मशकायतकताा ने आपरामिक
प्रमक्रया का िुरुपयोग मकया है। यमि इसके मलए प्रार्थी अनुबिंि की शतों
के अनुसार िाध्यस्र्थि कायावाही प्रारिंभ करता तो इसके मलए उसको
मवमि अनुसार िेय शुल्क अिा करना होता जो मक आपरामिक
प्रमक्रया सिंमस्र्थत करके मशकायतकताा ने बचा मलया। यद्यमप प्रार्थी
के एक अन्द्य केस का आपरामिक इमतहास सुसिंगत तथ्य है
मकन्द्तु यह तथ्य उपरोक्त तथ्यों से अमिक प्रभाव रखता है। ररर्
यामचका सिंख्या 23120 सन 2021 आपरामिक प्रकृमत के
िािले से सिंबिंमित नहीं है तर्था उसिें पाररत आिेश अमिि
जिानत के प्रार्थाना पत्र के मनस्तारण हेतु सुसिंगत नहीं है।

11. उपरोक्त तथ्यों को दृमष्टगत रखते हुए प्रार्थी अमिि
जिानत पाने का अमिकारी है।

12. उपरोक्त िुकििा अपराि सिंख्या िें आवेिक की
मगरफ्तारी / न्द्यायालय के सिक्ष उपमस्र्थमत की िशा िें उसे
सिंबिंमित र्थाने के भारसािक अमिकारी/ न्द्यायालय की सिंतुमष्ट के
अनुसार व्यमक्तगत बिंि पत्र एविं िो प्रमतभू प्रस्तुत करने पर परीक्षण के
अिंमति रूप से मनस्तारण तक, मनम्न शतों के अिीन अमिि जिानत पर
ररहा मकया जाएगा:-

क- आवेिक, यमि आवश्यक होगा तो पुमलस
अमिकारी द्वारा जााँच हेतु अपेमक्षत सिय पर उपमस्र्थत होगा।

ख- आवेिक िािले के तथ्यों से पररमचत मकसी व्यमक्त
या पुमलस अमिकाररयों को प्रत्यक्ष या परोक्ष रूप से कोई ििकी, वािा
या प्रलोभन नहीं िेगा मजससे मक वह ऐसे तथ्य को न्द्यायालय के सिक्ष
या मकसी पुमलस अमिकारी के सिक्ष प्रकर् न करने पर िान जाए।

ग- आवेिक मववेचना एविं मवचारण के िौरान सहयोग
करेंगे और जिानत की स्वतिंत्रता का िुरूपयोग नहीं करेगा।
----------
(2023) 10 ILRA 49
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 30 of 2014

Saleem Ahmad .. .Appellant
Versus
State of U.P. .. .Respondent

Counsel for the Appellant:
Nadeem Murtaza

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 323/149 & 325/149 -
Criminal Procedure Code, 1973 - Section
374(2) - Evidence Act, 1872 - Section 154
- Hostile Witnesses - Burden of Proof -
Presumption of Innocence - Contradiction
Between Ocular and Medical Evidence -
False
Implication-The
appellant,
Saleem
Ahmad, challenged the judgment and order
dated 11.12.2013 passed by the Additional
Sessions Judge, Sitapur, convicting him under
Sections 147, 148, 323/149, and 325/149 IPC
for rioting, armed rioting, causing hurt, and
causing
grievous
hurt,
respectively,
with
sentences ranging from one to three years of
simple imprisonment and fines.

Held: (1) The appeal was allowed, and the
impugned judgment was set aside, acquitting
50 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant of all charges. (2) The prosecution
failed to prove the appellant's guilt beyond
reasonable doubt, as the evidence was marred
by contradictions, particularly between the
ocular testimony of PW-1 (complainant) and
PW-2
(injured
witness)
and
the
medical
evidence, which showed only simple injuries
despite allegations of a severe assault. (3) PW-2
and PW-3, declared hostile, either contradicted
the prosecution's version or admitted to tutoring
and political rivalry, rendering their testimony
unreliable, as per Khujji @ Surendra Tiwari Vs
St. of M.P. and Sucha Singh Vs St. of Punj.. (4)
The absence of specific allegations against the
appellant,
combined
with
the
lack
of
independent witnesses and evidence of a prior
land dispute and political rivalry, indicated false
implication due to personal vendetta. (5) The
medical evidence did not support the claim of
grievous injury (parietal bone fracture) under
Section 325 IPC, as the prosecution failed to
prove it beyond reasonable doubt due to
discrepancies in the medical report and absence
of the examining doctor. (6) The trial court
erred in relying on presumptions and the
testimony of the investigating officer (PW-6)
without corroborative evidence, violating the
principle that conviction cannot be based on
conjectures, as per Amar Singh Vs St. of Punj.
and Viram Vs St. of M.P.. (7) The maxim falsus
in uno, falsus in omnibus does not apply in
India, but the court must separate reliable
evidence from unreliable, and the prosecution's
failure to establish a conclusive chain of
circumstances warranted acquittal.

Case Law Cited:

1. Khujji @ Surendra Tiwari Vs St. of M.P.,
AIR 1991 SC 1853;

2. Sucha Singh Vs St. of Punj., AIR 2003 SC
3617;

3. Paramjeet Singh Vs St. of Uttarakhand, AIR
2011 SC 200;

4. Amar Singh Vs St. of Punj., (1987) 1 SCC
679; Viram Vs St. of M.P., (2022) 1 SCC 341;

5. Ram Narain Singh Vs St. of Pun., (1975) 4
SCC 497.
(Delivered by Hon'ble Shamim Ahmed,
J.)

1. List of cases has been revised and
the case is being taken up in the revised
call for hearing.

2. Heard learned counsel for the
parties and perused the record.

3. The instant Criminal Appeal
under Section 374(2) Cr.P.C. has been
moved on behalf of the appellant against
the Judgment and Order dated 11.12.2013
passed by learned Additional Sessions
Judge, Court No.7, Sitapur in Sessions
Trial No.161 of 2008, arising out Case
Crime No.107 of 2001, lodged at Police
Station-Laharpur,
District-Sitapur,
whereby the appellant has been convicted
under Sections 147, 148, 323/149 and
325/149 and sentenced under Section 147
I.P.C. for two years simple imprisonment
and fine of Rs.1,000/- and in default of
payment of fine, two months additional
simple imprisonment, under Section 148
I.P.C.
for
three
years
simple
imprisonment and fine of Rs.1,000/- and
in default of payment of fine, two and a
half months simple imprisonment, under
Section
323/149,
one
years
simple
imprisonment and fine of Rs.500/- and in
default of payment of fine, fifteen days'
simple imprisonment and under Section
325/149 I.P.C. for three years simple
imprisonment and fine of Rs.2,000/- and
in default of payment of fine, three
months simple imprisonment.

4. The prosecution case in brief is that
on 29.04.2001, the complainant Mukhtar
Ahmad submitted a written report to the
Police Station Laharpur, District Sitapur,
wherein it had been stated that there was
some old enmity in between the parties
10 All. Saleem Ahmad Vs. State of U.P.
51
with respect to a Gramin Samaj Land, on
which the accused persons were allegedly
constructing a wall, which was not
permissible. In this regard, the complainant
made several complaints to the concerned
authorities and the accused persons were
stopped from constructing a wall over the
said land. On the date of incident at about
07:00 P.M., the concerned officials visited
the site and removed the boundary wall
illegally
constructed
by
the
accused
persons, thereafter, the concerned officials
returned but this action of the concerned
officials agitated the accused persons
against the complainant. Thereafter, the
accused persons reached the house of the
complainant armed with deadly weapons
and started abusing the complainant with
caustic words, when the complainant
stopped them to do so, they started beating
the complainant and his nephew. In the said
incident, the nephew of the complainant
fell unconscious and the complainant also
received severe injuries.

5. On the basis of written report,
submitted by the first informant, the first
information report was lodged as Case
Crime No.107 of 2001, under Sections 147,
148, 323, 504, 506 and 308 at Police
Station Laharpur, District Sitapur.

6. The case was handed over to
Investigating Officer, who visited the place
of occurrence, recorded the statement of the
witnesses and prepared the site plan and
after
completing
the
investigation,
submitted the charge sheet against the
appellants under Sections 323, 504, 506,
308 and 325 I.P.C.

7. On the basis of Charge-sheet
appellant-accused were summoned by the
Court and charges were framed against
them under Sections 323/34, 325/34,
308/34, 504 and 506 I.P.C. The appellantsaccused denied the charges and claimed to
be tried.

8. Prosecution in order to substantiate
the charges against appellants-accused
examined
Mukhtar
Ahmad,
the
complainant as P.W.-1, Raees as P.W.-2,
Munnawar as P.W.-3, Dr. M.H. Usmani as
P.W.-4, Constable Umesh Kumar Dixit as
P.W.-5, S.I. Retd. Ganga Ram Gautam as
P.W.-6 and Dr. Sant Raj as P.W.-7.

9. After closing of the evidence,
statement of accused / appellants under
section 313 Cr.P.C. was recorded by the
trial court explaining the entire evidence
and other circumstances, in which the
appellants denied the prosecution story and
the entire prosecution story was said to be
wrong and concocted.

10. No witness in defence was
adduced by the accused persons before the
trial court.

11. After having heard the rival
submissions of parties, the Trial Court
found appellants-accused guilty, therefore,
convicted under Sections 147, 148, 323/149
and 325/149 and sentenced under Section
147
I.P.C.
for
two
years
simple
imprisonment and fine of Rs.1,000/- and in
default of payment of fine, two months
additional simple imprisonment, under
Section 148 I.P.C. for three years simple
imprisonment and fine of Rs.1,000/- and in
default of payment of fine, two and a half
months
simple
imprisonment,
under
Section
323/149,
one
years
simple
imprisonment and fine of Rs.500/- and in
default of payment of fine, fifteen days'
simple imprisonment and under Section
325/149 I.P.C. for three years simple
imprisonment and fine of Rs.2,000/- and in
52 INDIAN LAW REPORTS ALLAHABAD SERIES
default of payment of fine, three months
simple imprisonment.

12. Feeling aggrieved by the
judgment of conviction and sentence
passed by Trial Court, the appellantaccused has preferred this appeal.

13. Learned Counsel for the appellant
has contended that the judgment and order
passed by the Trial Court is wrong both on
facts and law. The learned trial court had
misread and misconstrued the statements of
prosecution witnesses. The findings of the
learned court below is based on conjectures
and surmises. Benefits of latches of
prosecution is accorded to the prosecution
by the learned court below.

14. Learned counsel for the appellant
has further contended that the learned court
below has not considered the explanations
of circumstances submitted on behalf of the
defence while passing the impugned
judgment and order of conviction. The
learned trial court has not considered the
fact that some of the prosecution witnesses
have been declared hostile and had wrongly
relied upon the fact that when a witness has
been declared hostile, his statement could
be relied upon with some extent. As such,
he submits that the learned court below has
erred in law and passed the impugned
order, therefore, the same is liable to be set
aside and the instant appeal is liable to be
allowed.

15. Opposing the contention of
learned Counsel for the appellant-accused,
the learned A.G.A. has contended that
sufficient evidence was given by the
prosecution to prove the factum of
assaulting the injured by the accused
persons. The prosecution witnesses have
also proved the commission of offence, as
such, the impugned order does not require
any interference by this Court and the
appeal is liable to be dismissed.

16. Through out the web of the
Criminal Jurisprudence, one golden thread
is always seen that it is the duty of the
prosecution to prove the guilt of the
accused.
This
burden
of
proof
on
prosecution to prove guilt is also known as
presumption
of
innocence.
The
presumption of innocence, sometimes refer
to by the latin expression "ei incumbit
probatio qui dicit, non qui negat" (the
burden of proof is on one who declares, not
to one who denies) is the principle that one
is considered innocence unless proven
guilt. In criminal jurisprudence every
accused is presumed to be innocent unless
the guilt is proved. The presumption of
innocence
is
a
human
right.
The
prosecution
may
obtain
a
criminal
conviction only when the evidence proves
the guilt of accused beyond reasonable
doubt.

17. In the present case, almost all the
prosecution witnesses have supported the
prosecution story but PW-2 and PW-3 have
been declared hostile. It is based on
testimony of hostile prosecution witnesses
from which guilt of accused may be
inferred.

18. Witnesses may be categorized into
three distinct categories. They may be
wholly reliable. Similarly there may be
witnesses who can be considered wholly
unreliable. There is no difficulty in placing
reliance or disbelieving his evidence when
an evidence is wholly reliable or wholly
un-reliable, but difficulty arises in case of
third category i.e. where witness is neither
wholly reliable nor wholly unreliable.
Hostile witness ordinarily falls in category
10 All. Saleem Ahmad Vs. State of U.P.
53
of those witnesses who are neither wholly
reliable nor wholly un-reliable. Hon'ble
Apex Court in Khujji @ Surendra Tiwari
Vs. State of M.P. AIR 1991 SC page 1853
was pleased to observe as under :-

"The evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witnesses cannot be
treated as effaced or washed off the record
altogether, but the same can be accepted to
the extent their version is found to be
dependable on a careful scrutiny thereof."

19. The term "hostile witness" does
not find place in Evidence Act 1872 (herein-after referred as Act of 1872 for brevity).
It is a term borrowed from English Law.
Though in English Law to allow a party to
contradict its own witness was not
acceptable
view.
The
theory
of
contradicting its own witness was resisted
on the ground that party should be
permitted to discard or contradict his own
witness, which turns unfavorable to party
calling him, however, this rigidity of rule
was sought to be relaxed by evolving a
term "hostile" or "un-favourable witness"
in common law.

20. It is relevant to quote Section 154
(1) of the Act of 1872, which reads as
under:-

"the Court may, in its discretion,
permit the person who calls a witness to
put any question to him, which might be put
in cross examination by the adverse party".

21. Sub-Section (2) of Section 154 of
Act of 1872, further provides that:-

"Nothing in this section shall
disentitle the person so permitted under
sub-section (1), to rely on any part of
evidence of such witness".

22. Thus discretion is vested in Court
to permit a person to put such question,
which may be put by adverse party, if Court
deems it appropriate. Thus the term "hostile
witness" has been borrowed from English
Law and developed in through case Laws.

23. The principle of "falsus in uno
falsus in omnibus" (false in one thing,
false in everything) has no application in
India. It is duty of Court to separate grain
from chaff. Keeping in view the above
principles Hon'ble Apex Court in the case
of Sucha Singh v. State of Punjab, AIR
2003 SC 3617 was pleased to observe as
under :-

"even if major portion of the
evidence is found to be deficient, in case
residue is sufficient to prove guilt of an
accused, it is the duty of the court to
separate grain from chaff. Falsity of
particular material witness or material
particular would not ruin it from the
beginning to end. The maxim falsus in uno
falsus in omnibus (false in one thing, false
in everything) has no application in India
and the witness cannot be branded as a
liar. In case this maxim is applied in all the
cases it is to be feared that administration
of criminal justice would come to a dead
stop. Witnesses just cannot help in giving
embroidery to a story, however, truth is the
main. Therefore, it has to be appraised in
each case as to what extent the evidence is
worthy of credence, and merely because in
some respects the court considers the same
to be insufficient or unworthy of reliance, it
does not necessarily follow as a matter of
54 INDIAN LAW REPORTS ALLAHABAD SERIES
law that it must be disregarded in all
respects as well."

24. Similarly in Paramjeet Singh v.
State of Uttarakhand; AIR 2011 SC 200
also Hon'ble Apex Court was pleased to
observe as under:-

"When the witness was declared
hostile at the instance of the public
prosecutor and he was allowed to cross
examine
the
witness
furnishes
no
justification for rejecting embloc the
evidence of the witness. However, the court
has to be very careful, as prima facie, a
witness who makes different statements at
different times, has no regard for the truth.
His evidence has to be read and considered
as a whole with a view to find out whether
any weight should be attached to it. The
court should be slow to act on the
testimony of such a witness; normally, it
should look for corroboration to his
testimony".

25. On perusal of the statement of
witness P.W.-1: Mukhtar Ahmad; The
Witness is the Informant of the case and is
the relative of the Appellant and has
dragged his name along with other Accused
persons owing to political rivalry and land
dispute existing between them. The witness
in his entire testimony is silent about any
specific role attributed to the Appellant.
Moreso, the witness further states that the
genesis of the case pertains to civil dispute
with respect to alleged encroachment of a
property between one Sagir, co-accused
and this witness and aggrieved by the
same he gave written complaint to the
office of S.D.M, which enraged the coaccused Sagir who along with other coaccused persons allegedly assaulted the
Informant and PW2. However, it is
imperative to mention that in his crossexamination the witness has accepted that
no documentary evidence was given to
support the abovementioned action.

26. Moreover, the witness in his
cross
examination
has
categorically
mentioned that the Accused persons
assaulted
him
with
lathi-danda
for
approximately 10 minutes, however, the
ocular
testimony
is
in
complete
contradiction with the medical evidence
on record wherein as per the Medical
Report, the PW1 sustained two injuries
which are all simple in nature: This clearly
shows that the way and manner in which
the assault on the Informant is alleged to
have taken place whereby as per allegation
Informant was assaulted by 8 men with
lathi and danda for 10 minutes, does not
conform with the medical reports as nature
of the injuries would be serious in nature.
The medical evidence renders the ocular
testimony of the Informant improbable.

27. In support of the abovementioned
averment reliance is placed upon Amar
Singh v. State of Punjab, (1987) 1 SCC
679, and the relevant portion of the
judgment is extracted hereinunder.

"10.... Thus the evidence of PW 5
is totally inconsistent with the medical
evidence. This Court in Ram Narain Singh
v. State of Punjab [(1975) 4 SCC 497:
1975 SCC (Cri) 571 AIR 1975 SC 1727]
has laid down that if the evidence of the
witnesses for the prosecution is totally
inconsistent with the medical evidence, this
is a most fundamental defect in the
prosecution case and unless reasonably
explained, it is sufficient to discredit the
entire case. There is no explanation for the
apparent total inconsistency between the
evidence of PW 5 and the medical
evidence,"
10 All. Saleem Ahmad Vs. State of U.P.
55

28. The same principal was reiterated
in Viram v. State of M.P., (2022) 1 SCC
341,
relevant
portion
is
reproduced
hereinunder:

"13. The oral evidence discloses
that there was an indiscriminate attack by
the accused on the deceased and the other
injured eyewitnesses. As found by the
courts below, there is a contradiction
between the oral testimony of the witnesses
and the medical evidence. In Amar Singh v.
State of Punjab [Amar Singh v. State of
Punjab, (1987) 1 SCC 679: 1987 SCC (Cr)
232], this Court examined the point
relating to inconsistencies between the oral
evidence and the medical opinion. The
medical
report
submitted
therein.
established that there were only contusions,
abrasions and fractures, but there was no
incised wound on the left knee of the
deceased
as
alleged
by
a
witness.
Therefore, the evidence of the witness was
found to be totally inconsistent with the
medical evidence and that would be
sufficient to discredit the entire prosecution
case."

29. Further, the Witness in his crossexamination has categorically accepted that
the disputed land was sold by one Irfan and
Gufran to the co-accused Sagir via Sale
deed and the witness had filed a civil case
against Sagir and others wherein he had
lost the case. Further, the witness has also
accepted that there was political rivalry
between the Accused and Informant, this
clearly shows the ulterior motive behind
the registration of the FIR.

30. P.W.-2 Raees (Declared Hostile)
is an alleged Eye-witness of the incident
and also an injured witness, who is the
nephew of the Informant. The witness in
his testimony before the Learned Trial
Court on 24.06.2009 has supported the
version of the prosecution, however, when
the witness was recalled to testify in the
light of Section 319 Cr.P.C. on 30.06.2010,
the witness accepted that he was tutored by
PW1, namely Mukhtar, who happens to be
his uncle, and further he conceded that
there exists political rivalry between the
Accused persons and the Informant. The
witness was declared hostile by the
Learned Trial Court, however, the Learned
Trial Court relied upon the testimony of the
witness to the extent it was corroborated.
Further.
It
is
submitted
that
the
corroborated part of the testimony does not
level any allegation against the Appellant.

31. Further, the Court observed that
the witness in his entire testimony has not
leveled any specific allegation against the
Appellant. The role of throwing the ita
(brick) which caused the head injury has
been assigned to co-accused Sagir. The
witness has been declared hostile by the
Prosecution. This further shows that he is
an interested witness wherein he has
concocted the entire story along with PW1
to falsely implicate the Appellant

32.

Further
PW3,
Munnawar
(Declared Hostile), is an alleged eyewitness of incident. The witness in his
testimony
has
categorically
denied
witnessing the alleged incident as he has
stated that he was not present at the place
of occurrence and did not see Accused
persons assaulting the alleged victims with
lathi-danda.

33. Further the PW-3, who has been
declared hostile by the Learned Trial Court,
and in light of the contradiction ought to
efface altogether and no reliance could be
placed on his testimony to convict the
Appellant as the prosecution utterly failed
56 INDIAN LAW REPORTS ALLAHABAD SERIES
to prove its case qua Appellant beyond
reasonable doubt and if any benefit
accruing out of it must be given in the favor
of the Appellant.

34. PW4 Dr. M.H. Usmani is a
formal witness who performed the medical
examination of the alleged victim PW1,
namely Mukhtar, on 29.04.2001. The
witness in his testimony before the Learned
Trial Court has stated that PW1 sustained
two injuries, which were a simple in nature.
The witness also examined PW2, namely
Raees, who sustained 3 injuries, out of
which one was inflicted was on the left side
of the head and X-ray was recommended
for the same. However, the witness
categorically
stated
that
the
general
condition of PW2 was normal, which
clearly shows that the nature of injury
sustained was not serious. The testimony of
this witness highlights the discrepancies in
the testimony of the alleged witnesses PW1
and
PW2
rendering
their
testimony
unworthy of any credence as PW1 has
stated that PW2 was in an unconscious
state for about 20 days, however, in the
absence of any ocular, medical and
documentary evidence to support, the same
has no legs to stand.

35. PW5, Umesh Kumar Dixit, is the
scriber of the FIR and he made the GD
entry. The witness has stated that the
informant, PW1, brought the written
tehreer (Complaint) at the police station
which again shows that the PW1 was not
the scriber of the complaint and the FIR
was an afterthought to falsely implicate the
Appellant to settle his old rivalry.

36. P.W.-6 Gangaram Gautam
(Investigating Officer): The witness, now
a retired police officer, is the investigating
officer of the instant case. The witness also
prepared the site map of the alleged
incident at the instance of the Informant.

37. PW7: Dr. Santraj At the outset
has mentioned that the X-ray of PW2,
namely
Raees,
was
performed
by
radiologist.

38. Dr. O.P. Pandey, who was
summoned by the Learned Trial Court but
could not be produced for his testimony to
be recorded owing to his old age. On
account of his absence, PW7, the then on
duty radiologist was examined. Further, the
opinion given by PW7 is based on the
limited material which are X-Ray Plate and
Medical Report

39. The witness in his testimony
before the Learned Trial Court stated that
Injury No.2 sustained by PW2 on the left
side of the head caused the Parietal bone
fracture. However, the witness during his
cross examination has accepted that the
Medical Report bears only the thumb
impression not the name of the victim who
was examined. Moreover, the Learned Trial
Court owing to the absence of name of the
victim examined on the X-Ray Report and
the fact that the Doctor, namely Dr. O.P.
Pandey, who had examined the witness
could not be examined by the Learned
Court, held that the Prosecution has failed
to prove the injury sustained by PW2 on his
head which resulted in parietal bone
fracture was not proven beyond reasonable
doubt.

40. In the light of the abovementioned
facts, the negation of parietal bone fracture
sustained by PW2 renders the Prosecution
story unsustainable as the rest of the
injuries sustained by the victims, namely
Mukhtar and Raees, are simple in nature. In
the instant case, the Learned Additional
10 All. Saleem Ahmad Vs. State of U.P.
57
Sessions Judge has convicted the Accused
persons under Section 325 as the injury
attracted clause eighthly of grievous hurt
defined in Section 320 IPC. The Learned
Additional Sessions Judge has relied
testimony of PW6, the Investigating officer,
who stated that the alleged date of incident
is 29.04.2001 and the statement of PW2
was recorded on 15.07.2011 after the
passage of almost 2.5 months wherein he
was unable to speak properly. The Learned
Trial Court erred in solely relying on the
testimony of investigating officer and
further
presumed
that
the
delay
in
recording the statement of PW2 was
because of bodily pain. The Learned
Additional Sessions Judge has erred in
presuming the failure to record the
statement can be because of some other
unfavorable circumstances or owing to the
busy schedule of the Investigating Officer,
moreover, the failure to take into account
the testimony of PW4, Dr. M.H. Usmani,
who categorically stated that the general
condition of PW2 was normal shows non
application of judicial mind. Further, such
presumption without any documentary
evidence to show that the PW2 was
admitted in Hospital for 20 or more days
goes against the settled principle of law.

41. Since, the instant case is case
where no direct evidence came forward
during the trial, the Trial Court could
not have based the conviction of the
Appellant on conjecture and surmises.
In the instant case the chain of
circumstances
which
form
the
conclusion of guilt is to be drawn from
the evidences brought on record which
has not been fully established; however,
the facts so established are to be
consistent only with the hypothesis of
the guilt of the accused and the
circumstances should be of conclusive
nature so as to rule out every possible
hypothesis except the one to be proved
i.e. the complicity of the accused.

42. Further, the instant case is a
classic example of false implication of
the Appellant due to personal vendetta
wherein the entire Prosecution version
is concocted and the reliance has been
placed
upon
interested
witnesses,
further,
Prosecution
has
failed
to
produce any independent witness for
corroboration of its own version.

43. In view of the aforesaid
discussions, it would be expedient in
the interest of justice that the impugned
Judgment and Order passed by the
learned Trial Court is liable to be set
aside and the Appellant be acquitted.

44. Thus in view of above, after
analysis of circumstances of present
case in the light of aforesaid settled
legal
principles,
I
come
to
the
conclusion that the trial court has erred
passing the impugned judgment and
order, therefore, this appeal succeeds
and is allowed. The judgment and order
dated 11.12.2013 passed by learned
Additional Sessions Judge, Court No.7,
Sitapur in Sessions Trial No.161 of
2008, arising out Case Crime No.107 of
2001,
lodged
at
Police
StationLaharpur, District-Sitapur is set aside
and reversed. The appellants, namely,
Saleem Ahmad is acquitted of charges
under Sections 147, 148, 323/149 and
325/149 I.P.C. His personal bonds and
surety bonds are canceled and sureties
are discharged.

45. Let record of lower Court be
sent back to Court concerned along with
58 INDIAN LAW REPORTS ALLAHABAD SERIES
copy
of
judgment
and
order
for
information.
----------
(2023) 10 ILRA 58
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.09.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Appeal No. 91 of 2001

Kailash . ..Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
J.P. Yadav, Arvind Kumar Shukla, Atul
Verma, R.L. Yadav

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code, 1860 -
Sections 307 & 324 - Criminal Procedure
Code, 1973 - Section 374(2) - Evidence
Act, 1872 - Section 134 - Attempt to
Murder - Firearm Injury - Delay in FIR -
Motive and Mens Rea - Testimony of
Related
Witnesses
-
Independent
Witnesses - Credibility of Evidence - The
appellant, Kailash, challenged the conviction and
seven-year rigorous imprisonment sentence
under Section 307 IPC (attempt to murder)
passed by the Additional Sessions Judge,
Unnao, on 27.01.2001, for shooting the
victim, Sushil Kumar, in the face on
08.09.1994.

Held: (1) The appeal was dismissed, and
the conviction and sentence under Section
307 IPC were affirmed. (2) The prosecution
proved the case beyond reasonable doubt
through consistent testimonies of PW-1
(informant, father of the victim), PW-2
(Ramesh Kumar, uncle), and PW-3 (Sushil
Kumar, injured), supported by medical
evidence from PW-4 (Dr. Rajeev Khare)
confirming a firearm injury on the victim's
right cheek with blackening and scorching,
indicating
close-range
firing.
(3)
The
alleged delay in lodging the FIR (filed on
09.09.1994 at 5:30 p.m. for an incident at
11:30 p.m. on 08.09.1994) was justified, as
the informant prioritized hospitalizing the
injured victim, who was examined at 1:55
a.m., negating claims of undue delay. (4)
The absence of independent witnesses was
not fatal, as the testimonies of related
witnesses
(PW-1,
PW-2,
PW-3)
were
credible and natural, given the incident's
occurrence near their residence during a
temple worship event, and public reluctance
to testify in criminal cases was noted, as
per Bhagwan Jagannath Markad Vs St. of
Mah. and Mukesh Vs St. (NCT of Delhi). (5)
The
motive
was
established
through
evidence of prior enmity over a land dispute
and the appellant's demand for money,
supported by the appellant's admission
under Section 313 Cr.P.C. of a dispute
regarding a door opening toward the
informant's
brother's
garden.
(6)
The
argument that the injury was simple and
warranted conviction under Section 324 IPC
(voluntarily causing hurt by dangerous
weapon) instead of Section 307 IPC was
rejected, as the firearm injury on a vital
part (face) with blackening, tattooing, and
scorching indicated intent to kill, satisfying
Section 307 IPC requirements, as per Bipin
Bihari Vs St. of M.P. and Jage Ram Vs St. of
Har.. (7) Discrepancies regarding the firing
distance (5-6 steps per PW-1 and PW-2 vs.
8 steps per site plan) were reconciled, as
the medical evidence confirmed close-range
firing (within 6 feet), and the use of a
country-made pistol reduced the effective
distance, aligning with Mohd. Mian Vs St. of
U.P.. (8) The appellant's claim of false
implication due to the victim's criminal
history was dismissed, as no evidence
supported
the
involvement
of
other
assailants, and the victim's past did not
justify the attack. (9) The testimony of the
injured witness (PW-3) was reliable, and
conviction could be based on a single credible
witness under Section 134 of the Evidence Act,
as per Sudip Kr. Sen Vs St. of W.B.. (10) The
trial court's sentence of seven years without a
fine was deemed appropriate, requiring no
interference.