# Saleem @ Sambha v. State of U.P

- **Citation:** (2024) 8 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-05
- **Case number:** Criminal Appeal No. 3149 of 2004
- **Bench:** Rajiv Gupta, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saleem-sambha-v-state-of-u-p-52479
- **Pages:** 23

## Headnote

A. Criminal Law - Indian Penal Code,1860
-- Culpable Homicide & Murder - S. 299
Culpable Homicide - S. 300 Murder - S.
300 "culpable homicide amounting to
murder", punishable under Section 302
I.P.C. - "culpable homicide not amounting
to murder" punishable under Section 304
I.P.C. - 'Culpable Homicide' is the genus
and 'Murder' is its species. All 'Murders'
are 'Culpable Homicides' but all 'Culpable
Homicides' are not 'Murders' - 'Intention'
and 'Knowledge' - Distinction between
the two expressions - Legislature has used
two different terminologies 'Intention'
and
'Knowledge'
and
separate
punishments
are
provided
for
acts
committed with intent to cause bodily
injury likely to cause death and for acts
committed with knowledge that the act is
likely to cause death without the intent to
cause such bodily injury - Knowledge is
awareness of the consequences of the act
-
Knowledge
of
the
consequences
resulting from an act is different from the
intention that such consequences should
result - When intention is not proved, the
offence will be culpable homicide if the
doer of the act causes death with
knowledge that his act is likely to cause
death - Intention - Requisite intention
must be proved by the prosecution. It
must be proved that the accused, by doing
the act, intended to cause death, or had
the aim of causing such bodily injury as
was likely to cause death - Intention is
inferred from the circumstances of the
case, considering the nature of the
weapon, part of the body injured, extent
of the injury, degree of force used,
manner of attack, and the circumstances
preceding and attending the attack -
(Para 57, 58, 60, 65, 67).

B. Criminal Law - Indian Penal Code -
Sections 302, 304 - Murder & Culpable
Homicide Not Amounting to Murder -
88 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 304 Part- I or Section 304 Part- II
- Appellant and the deceased were in the
same business of selling meat and had
cordial relations, with no prior enmity.
Dispute arose over an amount of Rs. 50/-
owed by the deceased. On the day of the
incident, the appellant called the deceased
to settle the matter and, during a
conversation, in a moment of provocation,
stabbed the deceased with a chhuri. Held
- Weapon of assault chhuri is a common
item which could be found in dwelling
houses, specially where selling of meat is
the
business.
incident
had
occurred
without any premeditation and on trivial
matter i.e. dispute regarding meager
amount of Rs.50/-. It could not be
inferred that appellant had a pre-planned
intention to kill the deceased. none of the
clauses of Section 300 I.P.C. are attracted
as intention of the appellants to cause
death was not proved. Offence committed
by the appellant would fall within the
meaning
of
"culpable
homicide
not
amounting to murder" under Section 304
I.P.C. - Intention was to pressurize by
brandishing the chhuri and not to cause
bodily injuries. Only one blow. In sudden
provocation, the single blow proved fatal.
Considering the intention of appellant,
mode of occurrence and weapon used,
nature of injury, act falls within the
province of Section 304 Part- II I.P.C.
Appellant not guilty of murder punishable
under Section 302 IPC but he is guilty of
committing homicide not amounting to
murder an offence which is punishable
under Section 304 Part II IPC (Para 69,
70, 71)

C. Criminal Law - Indian Evidence Act, S. 3
- 'Related' witness - 'interested' witness -
Relative witness - 'Related' witness is not
equivalent
to
'interested'
witness.
A
witness may be called 'interested' only
when he or she derives some benefit from
the result of a litigation; in a decree of a
civil case, or in seeing an accused person
punished. A witness who is a natural one
and is the only possible eye witness in the
circumstances of the case, cannot be said
to be 'interested'. If evidence of an eyewitness, is found truthful, it can not be
discarded simply because the witnesses
were relatives of the deceased. The only

## Text

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8 All. Saleem @ Sambha Vs. State of U.P.
87
by the prosecution and has passed the
impugned judgment and order against the
settled
principle
of
law
including
provisions of N.D.P.S. Act. This Court,
therefore, unable to uphold the conviction
and sentence of the appellant. The appellant
is entitled to be acquitted. The impugned
judgment and order is liable to be set aside
and accordingly, appeal is liable to be
allowed.

23. In view of the above, impugned
judgment and order dated 01.12.2006
passed by learned Additional Sessions
Judge / Fast Track Court No.1, Raebareli in
S.T. No.25/1998, Police Station Sareni,
District Raebareli, is set aside and
reversed and accused/appellant, namely,
Sohan Lal is acquitted of the charges
levelled against him. Consequently, the
appeal is allowed. His personal bond and
surety bonds are canceled and sureties are
discharged.

24. Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2024) 8 ILRA 87
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3149 of 2004

Saleem @ Sambha ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Mohd. Naushad Siddiqui

Counsel for the Respondents:
Govt. Advocate

A. Criminal Law - Indian Penal Code,1860
-- Culpable Homicide & Murder - S. 299
Culpable Homicide - S. 300 Murder - S.
300 "culpable homicide amounting to
murder", punishable under Section 302
I.P.C. - "culpable homicide not amounting
to murder" punishable under Section 304
I.P.C. - 'Culpable Homicide' is the genus
and 'Murder' is its species. All 'Murders'
are 'Culpable Homicides' but all 'Culpable
Homicides' are not 'Murders' - 'Intention'
and 'Knowledge' - Distinction between
the two expressions - Legislature has used
two different terminologies 'Intention'
and
'Knowledge'
and
separate
punishments
are
provided
for
acts
committed with intent to cause bodily
injury likely to cause death and for acts
committed with knowledge that the act is
likely to cause death without the intent to
cause such bodily injury - Knowledge is
awareness of the consequences of the act
-
Knowledge
of
the
consequences
resulting from an act is different from the
intention that such consequences should
result - When intention is not proved, the
offence will be culpable homicide if the
doer of the act causes death with
knowledge that his act is likely to cause
death - Intention - Requisite intention
must be proved by the prosecution. It
must be proved that the accused, by doing
the act, intended to cause death, or had
the aim of causing such bodily injury as
was likely to cause death - Intention is
inferred from the circumstances of the
case, considering the nature of the
weapon, part of the body injured, extent
of the injury, degree of force used,
manner of attack, and the circumstances
preceding and attending the attack -
(Para 57, 58, 60, 65, 67).

B. Criminal Law - Indian Penal Code -
Sections 302, 304 - Murder & Culpable
Homicide Not Amounting to Murder -
88 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 304 Part- I or Section 304 Part- II
- Appellant and the deceased were in the
same business of selling meat and had
cordial relations, with no prior enmity.
Dispute arose over an amount of Rs. 50/-
owed by the deceased. On the day of the
incident, the appellant called the deceased
to settle the matter and, during a
conversation, in a moment of provocation,
stabbed the deceased with a chhuri. Held
- Weapon of assault chhuri is a common
item which could be found in dwelling
houses, specially where selling of meat is
the
business.
incident
had
occurred
without any premeditation and on trivial
matter i.e. dispute regarding meager
amount of Rs.50/-. It could not be
inferred that appellant had a pre-planned
intention to kill the deceased. none of the
clauses of Section 300 I.P.C. are attracted
as intention of the appellants to cause
death was not proved. Offence committed
by the appellant would fall within the
meaning
of
"culpable
homicide
not
amounting to murder" under Section 304
I.P.C. - Intention was to pressurize by
brandishing the chhuri and not to cause
bodily injuries. Only one blow. In sudden
provocation, the single blow proved fatal.
Considering the intention of appellant,
mode of occurrence and weapon used,
nature of injury, act falls within the
province of Section 304 Part- II I.P.C.
Appellant not guilty of murder punishable
under Section 302 IPC but he is guilty of
committing homicide not amounting to
murder an offence which is punishable
under Section 304 Part II IPC (Para 69,
70, 71)

C. Criminal Law - Indian Evidence Act, S. 3
- 'Related' witness - 'interested' witness -
Relative witness - 'Related' witness is not
equivalent
to
'interested'
witness.
A
witness may be called 'interested' only
when he or she derives some benefit from
the result of a litigation; in a decree of a
civil case, or in seeing an accused person
punished. A witness who is a natural one
and is the only possible eye witness in the
circumstances of the case, cannot be said
to be 'interested'. If evidence of an eyewitness, is found truthful, it can not be
discarded simply because the witnesses
were relatives of the deceased. The only
caveat is that the evidence of relative
witnesses should be subjected to careful
scrutiny
and
accepted
with
caution.
Relationship is not a factor to affect the
credibility of a witness. A relation would
not conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyze evidence to find out whether it is
cogent and credible. (Para 30, 31, 36)

D. In the instant case all the witnesses
were related witnesses of the deceased.
Therefore, their evidence was viewed with
extra caution. All witnesses narrated the
prosecution story in a very intrinsic and a
natural way. PW-1, PW-2, PW-3, and PW4 firmly St.d that the appellant and the
deceased were engaged in a meat-selling
business, and a financial dispute of ₹50
led to the fatal altercation. The evidence
established that the appellant took the
deceased to settle accounts, where he was
stabbed. The prosecution's case was
corroborated by multiple witnesses, who
saw the appellant stabbing the deceased
and fleeing while brandishing the weapon.
No evidence at all on record that these
witnesses are inimical to the appellant
which could prompt them to rope him in
the said crime. (Para 38)

Allowed. (E-5)

List of Cases cited:

1. St. of Rajasthan Vs Smt. Kalki & anr.. (1981)
2 SCC 752

2. Daleep Singh Vs St. of Pun. AIR 1953 SC 364

3. Hari Obula Reddy Vs St. of A.P. (1981) 3 SCC
675

4. S. Sudershan Reddy & ors. Vs St. of A.P
(2006) 10 SCC 163

5. Rai Sandeep Vs St. (NCT of Delhi), (2012) 8
SCC 21
8 All. Saleem @ Sambha Vs. State of U.P.
89
6. Bhurey Singh Vs St. of U.P. 2008 (4) ALJ 772
Alld.

7. Maharaj Singh Vs St. of U.P. (1994) 5 SCC
188

8. Mohammad Muslim Vs St. of U.P. 2023 live
law (SC) 489

9. Stalin V/s The St. Through The Inspector Of
Police, AIR 2020 SC 718

10. Mahesh Balmiki @ Munna V/s St. Of M. P.,
AIR 1999 SC 3338

11. Rampal Singh Vs St. of U.P., (2012) 8 SCC
289

12. Smt. Mathri v. St. of Punjab , AIR 1964 SC
986

13. Basdev Vs St. of Pepsu, AIR 1956 SC 488

14. Pulicherla Nagaraju @ Nagaraja Reddy vs
St. of A.P., 2006 (11) SCC 444

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. The instant criminal appeal, under
Section 374 (2) Cr.P.C. emanates out of the
judgment and order dated 18.5.2004,
passed by Additional District & Sessions
Judge, Fast Track Court No. 4, Kanpur
Nagar, in Sessions Trial No. 178 of 2001,
State Vs. Saleem alias Sambha, (Case
Crime No. 11/2001, P.S. Ghatampur,
Kanpur Nagar), whereby the learned trial
court, convicted the accused/ appellant
Saleem alias Sambha under Section 302
IPC
and
sentenced
him
for
life
imprisonment, with a fine of Rs. 3,000/-. In
case of default, appellant was directed to
undergo an additional imprisonment for a
period of six months.

2. Bereft of unnecessary details, the
prosecution case, as culled out from the First
Information Report (FIR), undisputed facts
and other material on record, is that the
informant Lukman s/o Usman, R/o of
Mohalla- Hafizpur, town- Ghatampur, police
station- Ghatampur, District Kanpur Nagar,
presented a tehrir (Ext Ka-1), on 17.01.2001
at about 12.45 p.m. in the police station
Ghatampur, about the incident happened on
1701.2001 at about 11.30 a.m., scribing
therein that his maternal uncle (Mama) Aziz
and Saleem alias Sambha s/o Habib both R/o
Mohalla
Hafizpur,
Town-
Ghatampur,
District-Kanpur Nagar, were engaged in the
business of selling meat (gosht) some times
separately and some times jointly with each
other. Saleem alias Sambha alleged that Aziz
owed Rs. 50/- to him but Aziz denied it. On
17.01.2001 at about 11.30 a.m., Saleem alias
Sambha called Aziz from his house and had
taken him to the house of Balia s/o Badkan to
settle the account. The complainant Lukman,
along-with Faheem s/o Late Saleem and
Saeed s/o Majeed, followed them. Saleem
alias Sambha and Aziz went inside the house
of Balia and started talking about the disputed
transactions, while the persons accompanying
them, remained standing outside the door of
Balia's house. Both the parties were disputing
over the accounts, meanwhile Saleem alias
Sambha stabbed Aziz in his abdomen with a
chhuri (dagger), with an intention to kill him.
On hearing shrill and shriek, persons,
standing outside, entered into the house of
Balia and saw accused Saleem alias Sambha
coming outside brandishing blood soaked
dagger in his hand. He threatened them also.
They chased Saleem alias Sambha, but he
managed his escape good. Injured Aziz was
taken
to
the
government
hospital
at
Ghatampur
for
treatment,
where
he
succumbed to his injury.

3. On the basis of the aforesaid tehrir
a case crime no.11 of 2001 under Section
302 IPC was registered at Police Station
Ghatampur, District Kanpur Dehat (now
90 INDIAN LAW REPORTS ALLAHABAD SERIES
Kanpur
Nagar)
against
Saleem
alias
Sambha. Entries were drawn in Kaimi G.D.
(Ext. Ka-9) and the chik FIR (Ext. Ka-3) at
about
12:45
on
17.01.2001.
The
investigation was entrusted to S.H.O. R.K.
Sharma.

4. Thus, the investigation started
rolling. I.O. reached at the place of
occurrence
and
visited
at
C.H.C.,
Ghatampur along with police party, where
corpse of the deceased Aziz was kept. S. I.
Sarvesh
Kumar
launched
inquest
proceeding after nominating Mohd. Arif,
Mohd. Rafiq, Mohd. Usman, Shahbaz
Quresi and Devi Prasad the witnesses, on
17.11.2001 at about 12.45 pm. The
panchan remarked that there is a blood
plum injury on the left side of the chest
near pelvis region. The panches opined that
the cause of death is the injury inflicted
upon deceased Aziz, nevertheless in order
to ascertain the real cause of death, the
postmortem
may
be
conducted.
S.I.
Sarvesh Singh also subscribed the opinion
of the panches. Therefore, he prepared a
request letter to this effect to the CMO and
send the wrapped and sealed corpse of Aziz
through C- Brijnandan Singh and C- Rajesh
Kumar, along with copy of inquest report
(Ext. Ka- 10), reference slip to CMO (Ext.
Ka-11), Sample of seal (Ext. Ka-12),
Challan lash (Ext. Ka-14), Letter to the R.I.
(Ext. Ka-15) to Mortuary for autopsy. The
postmortem of the deceased was conducted
by Dr. M.K. Jain (PW- 5) on 18.01.2001 at
12.00 O' clock.

5. On 17.01.2001 I.O. proceeded at
place of occurrence and recorded the
statement of the witnesses under section
161 I.P.C. and collected blood soaked and
plain pieces of bricks, in the presence of
witnesses from the place of occurrence. He
also prepared recovery memo (Ext. Ka- 7)
for the same. He prepared site plan of place
of occurrence (Ext. Ka- 6), at the instance
of the complainant and other witnesses and
site plan of place of recovery of weapon of
assault (Ext. Ka- 8) in the presence of
witnesses. I.O. collected other relevant
evidences also.

6. I.O. was in search of the accused,
however, he surrendered on 25.01.2001 in
the court of CMM. Thereafter with the
leave of the court I.O. recorded the
statement of the accused on 29.01.2001 in
jail, wherein he confessed his guilt and
stated that he can get recovered the weapon
of assault, from the place, where he had
hidden it. Hence I.O. prayed and was
granted 24 hours police custody remand for
the purpose of recovery by the court.
Pursuant to the leave of the court, on
01.02.2001 at about 8.00 am in the
morning, the accused was taken in police
custody and as per disclosure of accused,
proceeded to the place, where he had
hidden the said weapon. He himself walked
towards a place in shrubs standing on
Bhadras road and took out a dried blood
stained on its front, chhuri in the presence
of the witnesses and handed over to I.O.
The recovery memo (Ext Ka-5) for the
same was prepared by the I.O, in his handwriting
and
signatures,
over
which
signatures of the witnesses were also
obtained. I.O. also prepared site plan (Ext
Ka-8) of the place of recovery. Chhuri
recovered and other materials was sent for
forensic examination. The FSL report of
which was received and is part of the
record as Ext Ka-16.

7. Investigating officer after due
investigation and collecting credible and
clinching material and evidence showing
the complicity of the accused appellant
submitted charge sheet under Section 302
8 All. Saleem @ Sambha Vs. State of U.P.
91
I.P.C. against the accused Saleem alias
Sambha, in the court of learned CJM,
Kanpur Dehat, who took the cognizance of
the case. Since the case was exclusively
triable by the court of sessions, CJM,
committed it to the court of sessions
Kanpur Nagar, vide its order dated
10.04.2001. In the court of sessions it was
registered as S.T. No. 178 of 2001, who in
turn transferred it to the court of additional
Sessions Judge, Fast Track Court No. 4
Kanpur, for trial.

8. The learned trial Sessions Judge
framed charge under Section 302 IPC,
against the accused/ appellant Saleem alias
Sambha. Accused appellant abjured the
charge, pleaded not guilty and claimed to
be tried.

9- In order to bring home guilt of the
appellant,
prosecution
has
examined
following witnesses in ocular evidence:-

SL
No.
Name of Witness
PW No.

i
ii
iii
1
Lukman (Informant)
PW-1
2
Mohd. Faheem (independent
witness)
PW-2
3
Sayeed (independent witness)
PW-3
4
Sadiq (independent witness)
PW-4
5
Dr. M.K. Jain (post-mortem)
PW-5
6
C.P.
Kameshwar
Mishra
(H.M.)
PW-6
7
SI
Maharaj
Singh
Tomar
(Witness
of
recovery
of
weapon of assault)
PW-7
8
Inspector
Vigilance
R.K.Sharma (I.O.)
PW-8
9
SI
Sarvesh
Kumar
Singh
(Inquest witness)
PW-9

10.

Besides,
aforesaid
ocular
evidence,
prosecution
has
adduced
following documentary evidence also-

Sl
No.
Particulars
Ext. Nos.
Proved by
i
ii
iii
iv
1
Tehrir
Ext. Ka-1
PW-5
2
Post-mortem
report
Ext. Ka-2
PW-5
3
Chik F.I.R.
Ext. Ka-3
PW-6
4
Corban copy of
tehrir
Ext. Ka-4
PW-6
5
Recovery memo
of knife
Ext. Ka-5
PW-7
6
site-plan
Ext. Ka-6
P.W-8
7
Recovery memo
blood
stained
and plain brick
Ext. Ka-7
P.W-8
8
Site plan place
of recovery of
weapons
Ext. Ka-8
P.W-8
9
Kaimi GD
Ext. Ka-9
P.W-6
10
Inquest Report
Ext.Ka10
P.W-8
11
Reference slip to
CMO
Ext.Ka11
P.W-9
12
Sample of seal
Ext.Ka12
P.W-9
13
Form no. 13
Ext.Ka13
P.W-
14
Photo lash
Ext.Ka14
P.W-9
15
Letter to the R.I.
Ext.Ka15
P.W-9
16
F. S. L. Report
Ext.Ka16
P.W-9

11. In further corroboration of its
story, prosecution has also produced
following material objects in evidence:-

SLNo
Particulars
Proved
by
Ext. No.
i
ii
iii
iv
1
Chhuri (dagger)
PW-7&8
Ext.-1
2
Vests,
tahmad,
under wear
PW-7&8
Ext.-2
3
Plain and blood
soaked pieces of
bricks
PW-7&8
Ext.-3

12. After conclusion of prosecution
evidence the accused was confronted with
the evidence on record and his statement
under Section 313 Cr.P.C. was recorded,
wherein he denied prosecution version and
stated that on 17.01.2001 the deceased Aziz
had gone to the house of Sadiq. Aziz had
illicit relationship with the wife of Sadiq.
At the relevant time, Sadiq and Balia also
reached there. Seeing Aziz present there
they started beating him. Sadiq stabbed him
in his abdomen and killed him. When he
reached, he saw that Aziz was injured,
while Sadiq and Balia were present there.
They screamed, that Saleem had killed
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Aziz. They also chased him Sadiq called
the family members of Aziz and blamed
him to be the assailant. In question no. 10,
the appellant has denied that he got
recovered any weapon of assault chhuri and
the recovery is planted.

13. Accused appellant examined DW-
1 Rakesh Kumar as defence witness.

14. The learned trial court, after
examining and scrutinizing testimonies of
prosecution witnesses and entire material on
record, came to the conclusion that there is a
complete chain of evidence pointing towards
guilt and the complicity of the accused/
appellant in the commission of said crime.
Thus, prosecution has proved its case beyond
reasonable
doubts
and
accordingly,
convicted, accused/ appellant Saleem alias
Sambha under Sections 302 I.P.C. and
sentenced him for the charge u/s 302 IPC R.I.
for life and fine of Rs. 3,000/- with default
stipulation, vide impugned judgment and
order dated 18.5.2004. Felt aggrieved, the
appellant has preferred the present appeal.

15. We have heard Sri Mohd. Naushad
Siddiqui, learned Amicus Curiae for the
appellant, Sri Arun Kumar Pandey, learned
A.G.A. for the State, in extenso and have
been taken through the entire material on
record.

16. Learned Amius Curiae appearing
for the appellant assailed the conviction and
sentence passed by impugned judgment dated
18.05.2004,
on
various
grounds
and
advanced several arguments in this behalf.
Let us test, examine, scrutinize and analyze
the contentions advanced by the learned
counsel for the parties, on the touchstone of
the evidence adduced, undisputed facts and
circumstances of the case. It bring us to view
the prosecution evidence.

17. PW- 1 Lukman who, claimed to
be an eye witness. He is informant of the
incident. He deposed that the incident took
place on 17.01.2001 at 11.30 a.m. He was
sitting on the spot. His maternal uncle, Aziz
s/o late Abdul Karim and Saleem alias
Sambha used to sell meat in Ghatampur.
Aziz was indebted Rs. 50/- of Saleem alias
Sambha. Aziz was taken to the house of
Baliya s/o Badkan for settlement of
account. He, Faheem and Saeed, also
followed them. Aziz and Saleem alias
Sambha went inside the house of Baliya for
settling the accounts. The other persons
remained standing talking outside the door
of Baliya. During talk about the dispute,
Saleem alias Sambha stabbed a knife in the
stomach of Aziz, with an intention to kill
him. Hearing the scream, they went inside
the house and saw that Saleem alias
Sambha has a bloodstained dagger, in his
hand. Saleem alias Sambha threatening
them came out of the house. He was
chased, but could not be found. He took his
injured uncle to Government hospital
Ghatampur, where he was declared dead.
Corpse of the deceased Saleem was kept in
the Government hospital. He got a tehrir
scribed by journalist Siraji on his dictation
which was signed by him in urdu, he
proved the tehrir as Ext. Ka.1. Tehrir was
given at the police station Ghatampur, on
which the case was registered. The said
witness was confronted with several
queries during his cross examination.

18. PW- 2 Mohd. Faheem has
deposed that it was a chilly cold weather.
The incident took place on 17th January,
2001. The deceased Aziz was his real uncle
(chacha). He was engaged in business of
meat (gosht) selling in partnership with
accused Saleem alias Sambha. Saleem
claimed that Aziz owed Rs.50/- to him. His
uncle denied his claim and expressed his
8 All. Saleem @ Sambha Vs. State of U.P.
93
willingness and readiness to settle the
account and make payment, if he owes any
amount towards Saleem alias Sambha. The
incident took place in the house of Badkan,
who is the father of Sadiq and Baliya and
where the deceased was taken for settling
the accounts. His uncle Aziz and Saleem
alias Sambha had gone inside the house of
Badkan, while they remained standing in
front of the door of the house. As the
accounts were being settled, suddenly
vulgar dialogues started between Aziz and
Saleem. We asked them for peaceful
settlement of accounts. Meanwhile, Saleem
alias Sambha took out a chhuri and stabbed
in the abdomen of his uncle Aziz. They
tried to catch hold of Saleem alias Sambha,
he brandished the chhuri to kill us too,
rushed towards the door, and came out
brandishing chhuri in his hand. They took
injured Aziz to the hospital. The doctor
stated that it is a police case and asked to
first lodge the report. Meanwhile, doctor
examined injured Aziz and declared him
dead. The report of this incident was
lodged by Lukman. The police had done
paper work regarding dead body of
deceased in the hospital itself. The SubInspector had recorded his statement with
regard to the incident. The witness
identified the accused/ appellant present in
the court, saying he is Salim alias Sambha,
who had killed his uncle Aziz. The said
witness
was
also
thoroughly
cross
examined.

19. PW- 3 Saeed has averred in his
examination that the deceased Aziz was his
elder uncle (bade baap). He was runing the
business of sale of meat severely and
sometimes jointly in partnership with the
accused Saleem alias Sambha. The incident
occurred 10-12 days before 26 January
2001. The incident occurred around 11:30
in the day. The incident took place in the
house of Baliya and Sadiq. Saleem alias
Sambha called Aziz and asked him to settle
the account. When these people were
going, he, Faheem and Lukman followed
them. All of them remained standing at the
door of Sadiq. Saleem alias Sambha and
Aziz went inside the house. Saleem alias
Sambha asked for payment of Rs. 50/-,
Aziz assured that he will give the amount
by tomorrow. During the course of
dialogue, Saleem alias Sambha stabbed
Aziz with chhuri with intention to eliminate
him. He took out the chhuri and threatened
us, saying that he would kill anyone who
spoke. They tried to catch him, but he made
his escape good. Saleem alias Sambha ran
away towards Kallu's hotel and could not
be arrested. They took Aziz to the hospital
where he expired. The police report of the
incident was lodged by Lukman. A subinspector had interrogated and recorded his
statement regarding the incident. The
witness identified accused present in the
court room stating that he is the Saleem
alias Sambha, who stabbed Aziz. The
witness was cross-examined, in extenso.

20. P.W.4, Sadiq has averred that the
incident occurred around 11:30 AM, one
year and nine months ago. He is well
acquainted with Saleem and Aziz. They
used to do the business of meat (gosht) in
partnership. Saleem alias Sambha and Aziz
had an accounting dispute between them
for a paltry sum of only Rs. 50/-, over
which they quarreled. Aziz had indebted
Rs. 50/- to Saleem alias Sambha. His house
is very big and he was present in his house
at the time of incident. The incident had
occurred outside his house on the road,
made up of bricks. He came outside on
hearing
the
screaming.
Saleem
alias
Sambha was holding a dagger (Churi) in
his hand. He stabbed it, in the abdomen of
Aziz. When they challenged him, he ran
94 INDIAN LAW REPORTS ALLAHABAD SERIES
away towards the Kallu's hotel. Then, they
took Aziz to the police chowki, where they
were asked to take him to the police station.
By that time Aziz was already dead. When
the incident occurred, he was in the
Verandah (Daalan) of his house. The
witness further deposed that Baliya is his
brother, both of them lived together. It is
not true that the incident occurred inside his
house and later on the deceased and Saleem
alias Sambha came outside. He also stated
that he was taking meal inside his house at
the time of occurrence. I.O. has recorded
his statement in this regard. Witness was
thoroughly cross examined also.

21. P.W.5 Dr M.K. Jain has deposed
that during his posting as Surgeon on
18.01.2001 at K. P. M. Hospital, he
conducted postmortem of the dead body of
the deceased Aziz, brought by C-1260
Rajesh Kumar Pandey and C- 2007 Brij
Nandan Singh of P. S. Ghatampur, at about
12.00 noon. During autopsy he found the
following injuries:-

(I)-External Examination:- The
deceased was a man of average height and
built. His mouth was half opened and eyes
were closed. Rigor- mortis was present in
both hands and legs.

(II)- Ante-mortem injuries -
During the course of autopsy postmaortem
surgeon found following ante-mortem
injuries on the person on the deceased-

Lacerated
and
perforating
wounds 3 cm x 1.5 cm x abdominal cavity
deep and the same was present on the upper
side of the abdomen below the ribs towards
the left side in a 10 O'clock position, 9 cm
above the umbilicus.

(III)-Internal
examination:-
Both the chambers of the heart were devoid
of blood. The abdominal walls and
membrane were torn. There were one and
half liters of blood in the body and clots
present in the stomach. The small intestine
was cut at two places, and it was cut across
at one place. There was also cut wound on
the spleen. There was six ounces of semi
digested food present in the stomach.

(IV)-Opinion :- PW-5, Dr. M. K.
Jain, opined that the deceased died about a
day before the postmortem was conducted,
due to excessive bleeding and shock, due to
pre-mortem injuries. The injury on the
body of the deceased would have been
caused by knife or Churi. The death of the
deceased is possible on 17.01.2001 at about
11.30 A.M. The witness prepared the post
mortem report in his own hand writing and
signature. He proved it as Ext. Ka- 2.

22. PW- 5 Dr. M.K. Jain deposed in
his cross-examination that there was only
one visible injury on the body of the
deceased. The wound's margin were sharp.
He marked it as incised wound. He did not
marked in PMR if the margins of the wound
margins were pointing, inward or outward. He
could not say whether blood was oozing out
from the dead body at the time of post-mortem
because it was in a supine position. Such
injuries could be caused to a person lying
down or in a sitting position. The direction of
attack was unclear as the wound was deep and
perforating. The rupture of the spleen below
the wound, indicate its direction almost
vertical. He could not tell about the length,
width and thickness (size) of the weapon, with
which the deceased was inflicted the said
injury but that weapon must be sharp edged
and its end should be pointed. He denied the
suggestion that the said injury could be caused
to the victim skinning a buffalo and that
weapon slipped from his hand and by the slip
of the dagger which skinning the buffalo.

23. P.W.6, C.P. Kamleshwar Mishra
has stated in his testimony that on
8 All. Saleem @ Sambha Vs. State of U.P.
95
17.01.2001,
he
was
deployed
as
a
Constable/clerk at P.S. Ghatampur. On that
day, on the tehrir of complainant Lukman,
he registered a Criminal Case vide Case
Crime No. 11/2001, u/s 302 IPC against
Saleem alias Sambha. He entered the
particulars of the case in kaimi GD and had
drawn chik FIR. The witness stated that
these documents are in his hand writing and
signature. He further stated that carbon
copy of the GD was prepared in the same
process with original. He proved Chick FIR
as Ext Ka-3 and kaimi GD as Ext ka -4.

24. In his cross-examination PW- 6
further stated that Lukman reached in the
police station at 12.45 P.M. to lodge the
FIR. The tehrir was scribed by Shiraji and
signed by Lukman. It took half an hour
lodging the FIR. SHO was informed about
the incident, who reached on the spot.

25. P.W.7, S.I. Maharaj Singh Tomar,
is the I.O. and one of the formal witnesses,
who deposed that he recorded the statement
of the accused Saleem alias Sambha. On
01.02.2001 he took accused Saleem alias
Sambha in police custody remand in
expectation of recovery of weapon of
assault used in the crime No. 11/ 2001. He
set out from the P.S. in the jeep, along with
SHO R.K. Sharma, SI Ramendra Kumar
Singh, C- Pawan Kumar, C- Sunil Kumar
jeep driver Abdul Rahman, at the place
disclosed by the accused. Accused Saleem
alias Sambha in presence of the witnesses
Kalaam and Umar Siddqui got recovered
chhuri and hand over the same to him. It
was a pointed iron weapon (chhuri),
measuring 1 pawn, 7 fingers. There were
spots of dry blood on its handle. The
Chhuri was recovered at the pointing out of
the accused at around 8 o'clock, which was
wrapped in a news paper and sealed at the
spot in the presence of the witnesses.
Accused Salim Alias Sambha stated that he
had murdered Aziz with this weapon only.
This witness has proved recovery memo of
knife as Ext Ka-5 as well as recovered
knife as material Ext-1.

26. PW- 7 S.I. Maharaj Singh also
exhibited the recovered chhuri, blood
stained clothes and two nos. of plain and
blood stained bricks. He proved them as
material Ext. 1, 2 & 3. He further stated
that these items were sent to FSL, Lucknow
for forensic examination

27. P.W. 8, Rakesh Kumar Sharma,
Inspector deposed before the court that he
took over the investigation of the present
Case Crime No. 11 of 2001, under Section
302 I.P.C. on 17.1.2001. This witness has
proved the entire proceedings conducted by
him during investigation. This witness
raided the house of accused Saleem alias
Sambha after recording the statement of
complainant but no one was found. S.I.
Ramendra Singh was sent in search of the
accused person. Thereafter spot inspection
was
conducted
at
the
instance
of
complainant and witnesses. Site plan (Ext
Ka- 6) was prepared and blood stained as
well as plain piece of brick were taken into
custody and memo was prepared. He
further stated that after conclusion of the
prosecution evidence, finding sufficient,
clinching and riveting evidence pointing
towards the guilt of the accused, he
submitted Charge sheet under Section 302
I.P.C against the accused Saleem alias
Sambha.. This witness has proved site plan
of spot as Ex Ka-6, recovery memo of brick
piece Ex Ka-7, site plans of the place of
occurrence and the place wherefrom
weapon used in the murder was recovered
as Ext. Ka-8), Charge Sheet No 35 dated
9.2.2001 (Ex Ka-9) as well as pieces of
blood stained and plain bricks Ex-2 and 3.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Sarvesh Kumar,S.I.(P.W.9) has
proved the inquest proceedings. Thereafter
Constable Rajesh Kumar and Constable
Brijnandan were sent with the dead body
along with documents for postmortem. This
witness has proved Inquest report as Ex
Ka-10, letter to C.M.O. Ex Ka-11, Sample
seal Ex Ka-12, Challan of the body Ex Ka13, photo Lash as Ex Ka-14 and letter
written by R.I. to C.M.O. Kanpur as Ex Ka15.

29. Learned Amicus Curiae for the
appellant audaciously argued that witnesses
produced by the prosecution are partisan,
inimical to the appellants and interested
witnesses and not independent witness.
They are unreliable witnesses and as such
no credence can be attached to their
testimony and their deposition is not
reliable and deserves to be discarded.
Learned A.G.A. refuted the contention of
the
learned
Amicus
Curiae
for
the
appellant. He submitted that ordinarily a
closed relative would not spare the real
culprit who has caused the death and
implicate an innocent person. It will be
beneficial to discuss law on the issue and
evaluation of testimonies such witnesses.

30. In case of State of Rajasthan Vs.
Smt. Kalki and Anr. (1981) 2 SCC 752
the Hon'ble Supreme Court distinguished
between the related and interested witness.
It held that 'Related' witness is not
equivalent to 'interested' witness. A witness
may be called 'interested' only when he or
she derives some benefit from the result of
a litigation; in a decree of a civil case, or in
seeing an accused person punished. A
witness who is a natural one and is the only
possible eye witness in the circumstances
of the case, cannot be said to be 'interested'.
In the present case the witnesses produced
have nothing to gain if the appellant is
convicted or acquittal. There is not even an
iota of evidence that any of these witnesses
will get some benefit out of litigation
between complainant and the accused.
They are eye witnesses. So, they are not
interested witnesses.

31. The aforesaid submission of the
learned Amicus Curiae for the appellant
that prosecution witnesses are partisan and
inimical to appellant, was thoroughly
considered by the Hon'ble Apex Court in
case of Daleep Singh Vs. State of Punjab
AIR 1953 SC 364 and enunciated the
following principles:-

"26. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
the accused, to wish to implicate him
falsely ordinarily, a close relative would be
the last to screen the real culprit and falsely
implicate an innocent person. It is true,
when feelings run high and there is
personal cause for enmity, that there is a
tendency to drag in an innocent person
against whom a witness has a grudge along
with the guilty, but foundation must be laid
for such a criticism and the mere fact of
relationship far from being a foundation is
often a sure guarantee of truth."

32. In a three Judges Bench of the
Supreme Court of India in Hari Obula
Reddy Vs. State of A.P. (1981) 3 SCC
675 observed as under:-

"13. ...it is well settled that
interested evidence is not necessarily
unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting
or rejecting sworn testimony. Nor can it be
laid down as an invariable rule that
8 All. Saleem @ Sambha Vs. State of U.P.
97
interested evidence can never form the
basis of conviction unless corroborated to a
material extent in material particulars by
independent evidence. All that is necessary
is that the evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution. If on such scrutiny,
the interested testimony is found to be
intrinsically reliable or inherently probable,
it may, by itself, be sufficient, in the
circumstances of the particular case, to base
a conviction thereon."

33. Again, in S. Sudershan Reddy
and others Vs. State of A.P (2006) 10
SCC 163, the Hon'ble Supreme Court has
held as under:-

"12. We shall first deal with the
contention regarding interests of the
witnesses for furthering the prosecution
version. Relationship is not a factor to
affect the credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyze evidence to find out whether it is
cogent and credible.

15. We may also observe that the
ground that the witness being a close
relative and consequently being a partisan
witness, should not be relied upon, has no
substance. This theory was repelled by this
Court as early as in Dilip Singh case in
which surprise was expressed over the
impression which prevailed in the minds of
the Members of the Bar that relatives were
not independent witnesses."

34. It is well known that there may be
three kinds of witnesses:-

(i) Wholly reliable,

(ii) Wholly unreliable,

(iii) Partly reliable and partly
unreliable,

There is no problem to evaluate
testimony of wholly reliable or wholly
unreliable witnesses, but it is different to
deal with the witness, who are partly
reliable and partly unreliable. The court has
to be very careful in evaluation of such
kind of witnesses.

35. The testimony of a reliable
witness must be of sterling quality on
which implicit reliance can be placed for
convicting the appellants. The Apex Court
in Rai Sandeep v. State (NCT of Delhi),
(2012) 8 SCC 21 has very vividly describe
the characteristics of a sterling witness as
under.

"22. In our considered opinion,
the "sterling witness" should be of a very
high quality and calibre whose version
should, therefore, be unassailable. The
court considering the version of such
witness should be in a position to accept it
for its face value without any hesitation. To
test the quality of such a witness, the status
of the witness would be immaterial and
what would be relevant is the truthfulness
of the statement made by such a witness.
What would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court. It
should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
98 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co- relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial evidence
where there should not be any missing link in
the chain of circumstances to hold the accused
guilty of the offence alleged against him. Only
if the version of such a witness qualifies the
above test as well as all other such similar tests
to be applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects should
match the said version in material particulars
in order to enable the court trying the offence
to rely on the core version to sieve the other
supporting materials for holding the offender
guilty of the charge alleged."

36. Thus, Hon'ble Apex Court in its
enumerable decisions has categorically
held that if evidence of an eye-witness, is
found truthful, it can not be discarded
simply because the witnesses were relatives
of the deceased. The only caveat is that the
evidence of relative witnesses should be
subjected to careful scrutiny and accepted
with caution.

37. It is germane to point out here that
prosecution in the present case has
examined as many as 9 witnesses in
support of its version. Out of which four
are the witnesses of facts and rest are
formal witnesses. PW-1 Lukman is the
complainant of the incident and nephew of
the deceased Aziz. Thus, admittedly
deceased Aziz is the maternal uncle of PW1 Lukman. PW- 2 Mohd. Faheem is also
nephew of the deceased. It is also
undisputed that deceased Aziz was real
elder uncle (bade baap) of PW- 3 Saeed.
PW- 4 Sadiq has admitted that deceased
Aziz was his relative and brother.