# Sarafat & Anr v. State of U.P. 402 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 6 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-01
- **Case number:** Criminal Appeal No. 61 of 2010
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarafat-anr-v-state-of-u-p-402-indian-law-reports-allahabad-series-48778
- **Pages:** 26

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 504, 506 , The Code of
criminal
procedure,
1973
-
Section
161,313
,
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3 (2) (v).

Three persons murdered father of informant
(P.W.1, witnesses of fact) - by inflicting injuries
of sword upon his neck - time of incident
18/19.4.2004 - small kerosene oil lamp (Dibbi)
was burning - cause of death - autopsy report of
the deceased - shock and haemorrhage as a
result of ante-mortem injuries - trial court
acquitted convicts/appellants for the offences
under Sections 504, 506 (2) I.P.C. and Section 3
(2) (v) of the S.C./S.T. Act - convicted and
sentenced them under Section 302 read with
Section 34 I.P.C. (Para -2,6,11, )

(B) Criminal Law - Delay in lodging F.I.R. -
mere delay in lodging the FIR may not
prove fatal in all cases - but in the given
circumstances of the case delay in lodging
the FIR can be one of the factors which
may
corrode
the
credibility
of
the
prosecution version - but delay in lodging
the FIR cannot be a ground itself for
throwing away the entire prosecution
version as given in the FIR - later
substantiated by the evidence, unless
there are indications of fabrication - held -
some delay in lodging F.I.R. - same cannot be
attributed to the informant or can be said to be
deliberate with the object of implicating the
convicts/appellants - has been satisfactory
explained by P.W.1 and P.W.2.(Para -31,35 )

(C) Criminal Law - Evidence of 'interested
witnesses' - mere fact that relatives of the
deceased are the only witnesses is not
sufficient
to
discredit
their
cogent
testimonies
-
distinction
between
"interested" and "related" witnesses -
mere fact that the witnesses are related to
the
deceased
does
not
impugn
the
credibility of their evidence if it is
otherwise credible and cogent - held - no
basis to discredit the presence of the three eyewitnesses i.e. P.W.1, P.W.2 and P.W.3 - nothing
has been elicited out in the course of the crossexamination to doubt their presence - nature of
the injuries found to have been sustained by the
deceased
is consistent with the account
furnished by the eye-witnesses. (Para -
39,40)

(D) Criminal Law - Contradictions in the
statements of the eye-witnesses P.W.1,
P.W.2 and P.W.3 - the Indian Evidence
Act, 1872 - Section 145 - manner in
which
cross-examination
of
the
witnesses is to be made as to any
previous statement made in writing -
only contradictions in material particulars
and not minor contradictions can be a
ground to discredit the testimony of the
witnesses - held - version given by P.Ws-1, 2
and 3 broadly bears up the same story without
any vital contradictions and therefore, their
evidence is found to be trustworthy. (Para -
42,46,47 )

(E) Criminal Law - Motive - held - trial Court
rightly concluded that there was motive on the
part of the

## Text

_Characters 0–39,927 of 87,107. This is a partial read: ask again with offset=39927 for what follows._

6 All. Sarafat & Anr. Vs. State of U.P.
401

8. The other order of which recall was
sought is the one dated 14.12.2021. It reads
:

14.12.2021

Called out.

Counsel on behalf of pf. present.

Df. did not turn up.

Put up on 03-01-2022 for exparte arguments, as BAR proposed no work
from 17-12-2021 due to elections of BAR.

9. Again on 14.12.2021, the Members
of the Bar abstained from judicial work,
because Bar Elections were going on. It is
beyond imagination that the work of a Court
would be brought to a grinding halt, because
the elections of a registered society are to be
held. No doubt, learned Members of the Bar
are superior officers of the Court, but the Bar
Association is no more than a registered
society established for the welfare of the
learned Members of the Bar and to positively
contribute to the functioning of its individual
Members. The Bar Association is not
established to obstruct functioning of the
Court and interfere with the discharge of its
sovereign functions. The Trial Court was,
therefore, absolutely right when it made the
order dated 14.12.2021, directing the suit to
come up for address of arguments ex-parte.

10. It must be noted that on 14.12.2021,
learned Counsel for the plaintiff was present.
Had the learned Counsel for the plaintiff not
been present on 14.12.2021, the Trial Court
would have dismissed the suit in default also.
But, it was the defendant's Counsel alone
who was absent and not the plaintiff. The
order dated 14.12.2021, like the order dated
26.10.2021, is unexceptionable. It must be
noted that on 26.10.2021 also, the plaintiff,
along with his Counsel, was present. The
Revisional Court has upheld the order on the
ground of limitation, besides taking the
conduct of the defendant into account, though
not eloquently said in the order impugned
passed by the learned Additional District
Judge.

11. For the added reasons mentioned,
this Court concurs in the conclusion reached
by the two Courts below unanimously.

12. In the result, this petition fails and
stands dismissed.

13. There shall, however, be no order as
to costs.

14. The Registrar General is directed to
circulate this order to all the learned District
Judges, the Presiding Officers of Land
Acquisition, Rehabilitation and Resettlement
Tribunals, the Principal Judges of Family
Courts, the Presiding Officers of Motor
Accident Claim Tribunals and the Chairman,
Board of Revenue.
----------
(2022)06ILR A401
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.06.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 61 of 2010
connected with
Criminal Appeal No.120 of 2010

Sarafat & Anr. ...Appellant
Versus
State of U.P. ...Respondent
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Rahul Agnihotri, Sri Amrendra Singh, Sri Anil
Kumar Mishra, Sri Brijesh Kumar, Sri Kamaljeet
Mani Mishra, Sri Nadeem Murtaza, Sri Vivek
Kumar Singh

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Sections 302, 504, 506 , The Code of
criminal
procedure,
1973
-
Section
161,313
,
the
Scheduled
Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3 (2) (v).

Three persons murdered father of informant
(P.W.1, witnesses of fact) - by inflicting injuries
of sword upon his neck - time of incident
18/19.4.2004 - small kerosene oil lamp (Dibbi)
was burning - cause of death - autopsy report of
the deceased - shock and haemorrhage as a
result of ante-mortem injuries - trial court
acquitted convicts/appellants for the offences
under Sections 504, 506 (2) I.P.C. and Section 3
(2) (v) of the S.C./S.T. Act - convicted and
sentenced them under Section 302 read with
Section 34 I.P.C. (Para -2,6,11, )

(B) Criminal Law - Delay in lodging F.I.R. -
mere delay in lodging the FIR may not
prove fatal in all cases - but in the given
circumstances of the case delay in lodging
the FIR can be one of the factors which
may
corrode
the
credibility
of
the
prosecution version - but delay in lodging
the FIR cannot be a ground itself for
throwing away the entire prosecution
version as given in the FIR - later
substantiated by the evidence, unless
there are indications of fabrication - held -
some delay in lodging F.I.R. - same cannot be
attributed to the informant or can be said to be
deliberate with the object of implicating the
convicts/appellants - has been satisfactory
explained by P.W.1 and P.W.2.(Para -31,35 )

(C) Criminal Law - Evidence of 'interested
witnesses' - mere fact that relatives of the
deceased are the only witnesses is not
sufficient
to
discredit
their
cogent
testimonies
-
distinction
between
"interested" and "related" witnesses -
mere fact that the witnesses are related to
the
deceased
does
not
impugn
the
credibility of their evidence if it is
otherwise credible and cogent - held - no
basis to discredit the presence of the three eyewitnesses i.e. P.W.1, P.W.2 and P.W.3 - nothing
has been elicited out in the course of the crossexamination to doubt their presence - nature of
the injuries found to have been sustained by the
deceased
is consistent with the account
furnished by the eye-witnesses. (Para -
39,40)

(D) Criminal Law - Contradictions in the
statements of the eye-witnesses P.W.1,
P.W.2 and P.W.3 - the Indian Evidence
Act, 1872 - Section 145 - manner in
which
cross-examination
of
the
witnesses is to be made as to any
previous statement made in writing -
only contradictions in material particulars
and not minor contradictions can be a
ground to discredit the testimony of the
witnesses - held - version given by P.Ws-1, 2
and 3 broadly bears up the same story without
any vital contradictions and therefore, their
evidence is found to be trustworthy. (Para -
42,46,47 )

(E) Criminal Law - Motive - held - trial Court
rightly concluded that there was motive on the
part of the convicts/appellants to commit the
murder of the deceased. (Para - 50)

(F) Criminal Law - Non-examination of
Independent Witness - merely because
prosecution
did
not
examine
any
independent
witness,
would
not
necessarily lead to conclusion that
accused
was
falsely
implicated
-
examination of independent witnesses
is not an indispensable requirement and
such non-examination is not necessarily
fatal
to
the
prosecution
case
-
conviction can even be based on the
testimony of a sole eyewitness - held -
P.W.1, P.W.2 and P.W.3 have fully supported
the case of the prosecution and, therefore,
non-examination of the aforesaid persons
shall not be fatal to the case of the
prosecution. (Para -52,53,54,55,56 )
6 All. Sarafat & Anr. Vs. State of U.P.
403
(G) Criminal Law - Source of Light on Spot
- FIR is not an encyclopedia of the entire
case - It may not and need not contain all
the details - Naming of the accused
therein may be important but not naming
of an accused in FIR may not be a ground
to doubt the contents thereof in case the
statement of the witness is found to be
trustworthy - held - non-mentioning the
availability of ''Dibbi' (a kerosene oil lamp) and
torch by the informant P.W.1 in the written
report is not fatal for the prosecution. (Para -
58,59)

(H) Criminal Law - Medical Evidence - FIR
is certainly the starting point of the
investigation, but it is well within the
rights of the prosecution to produce
witness statements as they progress
further into the investigation and unearth
the specific roles of accused persons -
FIR
only
sets
the
investigative
machinery, into motion - plea of the
appellants
in
this
regard
has
no
substance - evidence of P.W.1 & P.W.2 shows
that convicts/appellants dragged the deceased
on the way; pushed him on the ground; and
assaulted him with sword - conclusion of trial
court - injuries no. 5 and 6 i.e. contusions
could be attributable to the deceased - held - it
cannot be said that medical evidence does not
corroborate the testimonies of the prosecution
witnesses.(Para -66,67,68)

HELD:-Prosecution has proved its case beyond
reasonable doubt against convicts/appellants
and their conviction and sentence for the
murder of deceased in the intervening night of
18/19.4.2004 by the impugned judgment is fully
justified.(Para - 69,70)

Criminal Appeals dismissed. (E-7)

List of Cases cited:-

1. Ravinder Kumar & anr. Vs St. of Punj. , AIR
2001 SC 3576

2. St. of H.P. Vs Gian Chand , AIR 2001(1) SC
2075

3. Mohd. Rojali Vs St. of Assam , (2019) 19 SCC
567
4. V. K. Mishra & anr. Vs St. of Uttarakhand &
anr. , (2015) 9 SCC 588

5. Narayan Chetanram Chaudhary & anr. Vs St.
of Mah. , (2000) 8 SCC 457

6. Surinder Kumar Vs St. of Punj. , (2020) 2 SCC
563

7. Rizwan Khan Vs St. of Chhattisgarh , (2020) 9
SCC 627

8. Gulam Sarbar Vs St. of Bihar , (2014) 3 SCC
401

9. St. of U.P. Vs Naresh & ors. , (2011) 4 SCC
324

10. Nathuni Yadav Vs St. of Bihar , (1998) 9
SCC 238

(Delivered by Hon'ble Ramesh Sinha, J.)

(A) Introduction

(1) Three accused persons, Sarafat,
Noor Mohammad and Ajay, were tried by
the Additional Sessions Judge/F.T.C.-4,
Lakhimpur Kheri in Sessions Trial No. 879
of 2004 : State Vs. Sarafat and two others,
arising out of Case Crime No. 130 of 2004,
under Sections 302, 504, 506 Indian Penal
Code, 1860 (in short, "I.P.C.") and Section
3 (2) (v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (in short, "S.C./S.T. Act"),
Police Station Nighasan, District Kheri.

(2) Vide judgment and order dated
14.12.2009,
the
learned
Additional
Sessions Judge/F.T.C.-4, Lakhimpur Kheri,
acquitted Sarafat, Noor Mohammad and
Ajay, for the offences under Sections 504,
506 (2) I.P.C. and Section 3 (2) (v) of the
S.C./S.T. Act, however, convicted and
sentenced them under Section 302 read
with Section 34 I.P.C. to undergo life
imprisonment and fine of Rs.7,000/- each.
404 INDIAN LAW REPORTS ALLAHABAD SERIES
In default of payment of fine, to undergo
additional two years imprisonment.

(3) Aggrieved by their aforesaid
conviction
and
sentence,
convicts/
appellants,
Sarafat
and
Noor
Mohammad, preferred before this Court
Criminal Appeal No. 61 of 2010, whereas
convict/appellant Ajay preferred Criminal
Appeal No. 120 of 2010.

(4) Since both the above-captioned
appeals arise out of a common factual
matrix and impugned judgment and order
dated 14.12.2009, hence this Court is
disposing of the above-captioned appeals
by a common judgment.

(B) Factual Matrix

(5) Shortly stated the prosecution case
runs as under :-

Informant Brahmadeen (P.W.1)
had filed a written report (Ext. Ka.1) before
Police Station Nighasan, District Kheri on
19.04.2004, at 10:00 a.m., alleging therein
that
in
the
intervening
night
of
18/19.04.2004, at about 02:00 a.m., Sarafat,
Noor
Mohammad
and
Ajay
(convicts/appellants) came in front of his
house and started to drink water by plying
handpump installed in front of his house,
upon which his father (deceased Kadhiley)
objected. Thereafter, all three persons
(convicts/appellants) used abusive language
against his father (deceased Kadhiley) and
when his father (deceased Kadhiley)
objected them from use of abusive
language,
then,
all
three
persons
(convicts/appellants) brought his father
(deceased Kadhiley) towards road. Seeing
that, he (P.W.1) and his sister Maina Devi
(P.W.2) ran to save their father (deceased
Kadhiley)
but
all
three
persons
(convicts/appellants) murdered his father
(deceased
Kadhiley)
with
sword
by
inflicting it on his neck. On hue and cry,
Gauri Shanker (P.W.3), Tulsi and a large
number of other persons came there and
challenged the convicts/appellants, then, all
three persons (convicts/ appellants), while
threatening them to kill, ran towards south
direction of the village. On account of fear,
he did not go to lodge report in the night,
however, he went to lodge report in the
morning.

(6) The informant (P.W.1) got the
aforesaid report scribed from one person,
namely, Ramesh, outside the police station
Nighasan,
district
Kheri,
who
after
scribing, read it over to him. He, thereafter,
affixed his thumb impression on it and
lodged at police station Nighasan, district
Kheri.

(7) The evidence of H.C. Bachnesh
Singh (P.W.5) shows that on 19.04.2004,
he was posted as Constable Moharrir at
police station Nighasan, district Kheri. On
the said date, at 10:00 a.m., on the basis of
written report (Ext. Ka.1), he prepared chik
F.I.R., bearing No. 84 of 2004, and
registered a case crime no. 130 of 2004,
under Sections 302, 504, 506 I.P.C. and
Section 3 (2) (v) of the S.C./S.T. Act,
against the accused persons. He proved
F.I.R. (Ext. Ka.10).

In cross-examination, P.W.5 had
deposed that no date has been mentioned in
the order passed by the Circle Officer on
the Chik F.I.R. He denied the suggestion
that F.I.R. was lodged after 10:00 a.m.

(8) A perusal of the chik FIR shows
that the distance between the place of
incident and police station Nighashan,
district Kheri was 13 kilometers. It is
6 All. Sarafat & Anr. Vs. State of U.P.
405
significant to mention that the perusal of
chik FIR also shows that on its basis, case
crime no. 130 of 1994, under Sections 302,
504, 506 I.P.C. and Section 3 (2) (v) of
S.C/S.T.
Act
was
registered
against
convicts/appellants,
Sarafat,
Noor
Mohammad and Ajay.

(9) The evidence of P.W.4-S.I.
Satyendra Kumar Verma shows that on
19.04.2004, he was posted as Sub-Inspector
at Police Station Nighasan. On the said
date, he sealed the corpse of the deceased
Kadhiley and sent it for post-mortem after
preparing
''panchayatnama'
and
other
relevant papers viz speciman seal, challan
lash, paper no.33, photo lash, report to
C.M.O. He proved Ext. Ka.2 to Ext. Ka. 8.
He collected blood stained soil and plain
soil in separate containers, sealed it and
prepared recovery memo (Ext. K.9) in the
presence of witnesses.

In cross-examination, P.W.4 had
denied the suggestion that chik F.I.R. was
not
with
him
till
the
time
of
''panchayatnama'. He also deposed that
Circle Officer met him at the place of the
incident but he did not remember the time
of arrival of Circle Officer at the place of
the incident.

(10) The evidence of P.W.7-Athar
Hussain shows that the investigation of
Case Crime No. 130 of 2004, under
Sections 302, 504, 506 I.P.C. and Section 3
(2) (v) of S.C./S.T. Act was conducted by
Circle Officer of Polia, namely, Shri Ashok
Kumar Verma and site plan of the aforesaid
case (Ext. Ka. 13) was in his handwriting
and signature. He identified the signature
and handwriting of CO Shri Ashok Kumar
Verma. He further deposed that chargesheet (Ext. Ka.14) was also in the
handwriting and signature of CO Shri
Ashok Kumar Verma.

In cross-examination, P.W.7 had
deposed that Circle Officer Ashok Kumar
Verma was posted in the office of D.G.P.
Brahmdeen (P.W.1), in his statement under
Section 161 Cr.P.C., stated that three
persons murdered his father by inflicting
injuries of sword upon his neck. At the time
of the incident, small kerosene oil lamp
(Dibbi) was burning.

(11) The post-mortem of the corpse of
the deceased Kadhiley was conducted on
20.04.2004, at 03:00 p.m., by Dr. J.P.
Bhargav (P.W.6), who found on his person
the
ante-mortem
injuries,
enumerated
hereinafter :-

1. I.W. 3 cm x 1 cm x bone deep
over left ear.

2. I.W. 3 cm x 1 cm x bone deep
over Rt. ear.

3. I.W. 1 cm x 1 cm x muscle
deep over upper lip just below nose.

4. I.W. 3 cm x 1 cm x bone deep
over lower lip and below front 3 incisor
teeth found cut.

5. Contusion 30 cm x 20 cm over
front of chest below Rt. collor bone on
dissection underlying 1st to 4th ribs on both
sides found fractured. Both pleurae, both
lungs found lacerated & 1 litre clotted and
fluid blood present in chest cavity.

6. Contusion 15 cm x 6 cm over
Rt. side of head and 3 cm above Rt. ear.
Underlying Rt. temporal parietal bone,
occipital bone & left temporal & parietal
406 INDIAN LAW REPORTS ALLAHABAD SERIES
bone found fractured. Brain and its
membrane found lacerated."

The cause of death spelt out in
the autopsy report of the deceased Kadhiley
was shock and haemorrhage as a result of
ante-mortem injuries.

(12) It is significant to mention that in
his deposition in the trial Court, Dr. J.P.
Bhargav (P.W. 6) has reiterated the said
cause of death and stated that ante-mortem
injuries suffered by the deceased person
could be attributable by a sharp edged
weapon like sword on 18/19.04.2004 at
2:00 a.m. He also deposed that the antemortem injuries of the deceased could also
be caused during altercation or by pushing
or hit by a hard object. He proved the postmortem report (Ext. Ka. 12).

In cross-examination, P.W.6 had
deposed that it is clear from the antemortem injuries that ante-mortem injuries
could be attributable by two types of
objects like sharp edged weapon and blunt
object. Injuries no. 5 and 6 could be
attributable when a person be hit by a big
stone or became injured on falling on it.

(13) The case was committed to the
Court of Sessions by the Chief Judicial
Magistrate,
Lakhimpur
Kheri
on
19.08.2004 and the trial Court framed
charges against appellants under Sections
302/34, 504, 506 (2) I.P.C. and Section
3(2) (v) of S.C./S.T. Act. They pleaded not
guilty to the charges and claimed to be
tried. Their defence was of denial.

(14) During trial, in all, the
prosecution examined seven witnesses viz.
P.W.1-Brahmadeen, who is the informant
of the case and son of the deceased
Kadhiley; P.W.2-Maina Devi, who is the
daughter of the deceased, P.W.3-Gauri
Shanker, who is the nephew of the
deceased Kadhiley, P.W.4-S.I. Satyendra
Kumar
Verma,
who
has
prepared
''panchayatnama', photo lash, challan lash
etc. and sent the corpse of deceased
Kadhiley for post-mortem; P.W.5-H.C.
Bachnesh Singh, who has lodged F.I.R.
(Ext. Ka.10) on the basis of the written
report (Ext. Ka.1); P.W.6-Dr. J. P.
Bhargav, who conducted the post-mortem
of the corpse of the deceased Kadhiley; and
P.W.7-Athar Hussain, who has proved the
fact that the investigation of the case was
conducted by CO Sri Ashok Kumar Verma.

(15) Reverting to the testimony of the
witnesses of fact, P.W.1-Brahmdeen, who
is the informant of the case and son of the
deceased Kadhiley, had deposed before the
trial Court in his examination-in-chief that
before one year ago, at 02:00 a.m., when
Sarafat,
Noor
Mohammad
and
Ajay
(convicts/appellants) were drinking water
by plying handpump installed near to his
house, his father (deceased Kadhiley) made
objection, upon which convicts/appellants
used abusive language against his father
Kadhiley (deceased). Thereafter, when his
father Kadhiley (deceased) asked the
convicts/appellants not to use abusive
language, convicts/appellants brought his
father towards road. After that, when he
(P.W.1) and his sister Maina (P.W.2) ran to
save their father, then, convicts/appellants
murdered their father by inflicting injuries
on the neck of their father with sword.
Meanwhile, Gauri Shanker (P.W.3) and
Tulsi
came
there
and
upon
being
challenged
by
them,
the
convicts/
appellants
fled
away
towards
south
direction threatening them. Thereafter, on
account of fear, he did not go to lodge the
report in the night. In the morning, he got
the report scribed from a person outside the
6 All. Sarafat & Anr. Vs. State of U.P.
407
police station on his own dictation and after
scribing, the scribe read it over to him. He,
thereafter, affixed his thumb impression on
it and lodged it at police station Nighasan.
He proved the written report (Ext. Ka.1).

In
cross-examination,
P.W.1Brahmadeen had deposed that on the date
and time of the incident, his mother
Shakuntala, his brother Sunder Lal and his
wife went to attend marriage function of
brother-in-law of his brother Sunder Lal at
Munna Purwa, which is situated at a
distance of 3 Kms. from his village. He,
therefore, sent an information of the
incident to them at 06:00 a.m. at village
Munna Purwa, however, he deposed that he
did not remember from whom the said
information was sent to Munna Purwa. All
the aforesaid family members came from
Munna Purwa at 07:00 a.m. After reaching
home, his brother Sunder Lal enquired
from him about the incident. He further
deposed that when his brother Sunder Lal
came at home, he went after one hour of
sunrise to police station Nighasan, which is
situated about 18 Kms. away from his
village, on foot and reached Nighasan at
about 09:00 a.m. On the crossroad of
Nighasan, he found a person named
Ramesh. He narrated the whole incident to
Ramesh, who after bringing paper and pen
from stationery shop, scribed the report on
his dictation. After that he affixed his
thumb impression on the report and
proceeded to lodge it to police station
Nighasan. He further deposed that half an
hour was spent in scribing the written
report and after that he went to police
station, where he sat about half an hour and
thereafter, report was lodged. After lodging
the report, the Inspector came along with
him at the place of occurrence on Jeep at
11:30 a.m. The Circle Officer did not come
with the Inspector.

In cross-examination, P.W.1 had
deposed that he went from the police
station
before
the
Inspector
through
bicycle. He went alone to lodge the report
and returned back from there alone. He
came home at about 12:00 O'clock. After
one hour of reaching his house, the
Inspector came. The corpse was lying there
till he (P.W.1) and Inspector reached there.
The Inspector sealed the corpse before him.

P.W.1 had further deposed in his
cross-examination that eight years ago, a
countrymade pistol 12 bore was not
recovered from him. However, he went to
jail in relation to a case pertaining to the
said pistol and that case is still going on.
Before 11 years ago, his father had lodged
a case under Section 307 I.P.C. against
Kamlesh and his son. The father of Ajay
(convict/appellant), namely, Kamlesh, was
the forest guard in his area and after that he
became Forester therein. He denied the
suggestion that he and his father Kadhiley
were caught by Kamlesh while cutting
wood in the forest. He also denied the
suggestion that after cutting wood, he
supplied that to Nepal. He also denied the
suggestion that due to monitoring by
Kamlesh of his family, his business of
wood was closed. However, he himself
stated that he went to the forest to cut
''wasti' (by which wood is collected).

P.W.1 had further deposed in his
cross-examination that hand-pump was
installed 10-12 steps to the southern
direction of the corridor. Anyone can drink
water from handpump. His house and
thatch are adjacent to corridor and his
house is at a distance of 5-6 steps north of
it. He was not living in this house. The
house in which he was living, was 5-6 steps
north of that house and at the time of
incident, he was living in this house. His
408 INDIAN LAW REPORTS ALLAHABAD SERIES
father Kadhiley (deceased) and his sister
Maina Devi (P.W.2) used to live in thatch
adjacent to corridor and none else were
living there. First of all, sound of screaming
of his father Kadhiley (deceased) came and
after that sound of screaming of his sister
Maina Devi (P.W.2) came. Maina Devi
(P.W.2) was with his father. When he
reached there, he saw the three accused
(convicts/appellants) were assaulting his
father. He saw a sword in the hand of
Sarafat (convict/appellant no.1) and he did
not see any weapon with the other accused.
He saw Sarafat only (convict/appellant
no.1) cutting his father's neck with sword
and other two accused (Noor Mohammad
and Ajay) caught hold his father Kadhiley
(deceased). He did not see all three accused
persons inflicting injuries on the neck of his
father with sword.

P.W.1 had further deposed in his
cross-examination that at the time of the
incident, ''Dibbi' (a kerosene oil lamp),
which was placed on ''Kathla' (box made
with soil), was burning inside the thatch.
The sword injuries were inflicted upon
Kadhiley (deceased) after his falling on
earth. When sword was inflicted upon
Kadhiley (deceased), Kadhiley (deceased)
was fallen flatways. Except sword, none of
the convicts/appellants were having lathi
and danda. He did not remember the
number of sword blows inflicted upon the
deceased Kadhiley.

P.W.1 had further deposed in
cross-examination that Noor Mohammad
and Sarafat (convicts/appellants) were
working in Forest Department. Before the
incident, he (P.W.1) and his father
Kadhiley (deceased) brought small pieces
of wood, then, Noor Mohammad and
Sarafat (convicts/appellants) caught them
(P.W.1 and his father Kadhiley). He denied
the suggestion that as Noor Mohammad
and Sarafat (convicts/appellants) restrained
him (P.W.1) from bringing wood, hence he
falsely implicated them.

(16) P.W.2-Maina Devi, who is the
sister of the informant P.W.1 Brahmadeen
and daughter of the deceased Kadhiley, had
deposed in her examination-in-chief that
hand-pump was stationed in front of her
house. One year and one month ago, at 02:00
a.m.,
Sarafat,
Noor
Mohammad
(convict/appellant) of her village and their
companion Ajay (convict/appellant) were
drinking water by plying handpump. When
her
father
(deceased
Kadhiley)
made
objection to it, convicts/appellants used
abusive language against him. Thereafter, her
father Kadhiley asked the convicts/appellants
not
to
use
abusive
language,
then,
convicts/appellants
brought
her
father
(Kadhiley). Thereafter, she and her brother
Brahamadeen (P.W.1) ran to save their father
Kadhiley and raised alarm. On alarm, Gauri
Shanker (P.W.3) and Tulsi came there.
Meanwhile,
three
accused
(convicts/appellant) murdered her father
Kadhiley by cutting neck of her father
(Kadhiley) with sword. Thereafter, on
challenging,
accused
persons
(convicts/appellants), while threatening to kill
them, fled away towards south direction.

In cross-examination, P.W.2 had
deposed that at the time of the incident, she
did not solemnize her third marriage. After
the death of her second husband, she used
to reside at her parents' home (ek;dk) and
not at her in-laws' home. Her relation with
in-laws was cordial. It is not so that in-laws
had driven away her. Her second husband
hanged himself.

P.W.2 had further deposed in her
cross-examination that when police reached
6 All. Sarafat & Anr. Vs. State of U.P.
409
at the place of occurrence, she was present
near the deadbody of her father (Kadhiley).
The police did not record the statement of
her brother Brahmadeen (P.W.1) before
her. After 21⁄2 months of the incident, the
police recorded her statement and during
21⁄2 months, he used to reside at her
parental home and the police came at her
parental home frequently.

P.W.2 had further deposed that
her brother (P.W.1) did not go to lodge
report in the night. She further deposed that
her brother (P.W.1) was going to lodge
report but her brother (P.W.1) saw the
accused persons barricading the way, hence
her brother returned back to home. She
further deposed that when she saw the
convicts/appellants assaulting her father, at
that moment, her father was lying on the
back. Noor Mohammad (convict/appellant)
caught hold the leg of her father Kadhiley
(deceased); Ajay (convict/appellant) caught
hold the hand of her father Kadhiley;
Sarafat (convict/appellant) assaulted her
father
with
sword.
Sarafat
(convict/appellant) inflicted three blows of
sword upon her father Kadhiley; one on her
father's neck; second one on her father's
nose; and third one was, the sword was
pierced on her father's ear. Except sword,
her father was not assaulted with any other
weapon.

P.W.2 had further deposed that
Pummy is her niece and the daughter of
Sunder. At the time of incident, Pammi was
sleeping near her father Kadhiley, whereas
she was sleeping along with her sister
Kanyawati on a cot inside the room. At the
time of incident, there was no source of
light. Her brother Brahmadeen (P.W.1) was
having torch at the time of incident and she
had also stated the same to the Circle
Officer but if the same was not written in
her statement recorded under Section 161
Cr.P.C., then, she could not tell reasons for
it. The said torch was seen by the Circle
Officer, in her presence in the morning. She
further deposed that at the time of incident,
she was standing in the corridor and her
brother (P.W.1) also came behind her. She
disclosed the place from where she saw the
incident, to the Circle Officer. She further
deposed that when convicts/appellants fled
away, Gauri Shanker (P.W.3) and Tulsiram
came there. She further deposed that houses
of her brothers Sunder and Brahmadeen
(P.W.1) were in the same premises
partitioned with ''Deharia' (wall made with
soil). At the time of incident, her brother
Brahamadeen (P.W.1) did not come to
wake up her nor she went to wake up to her
brother Brahmadeen (P.W.1).

(17) P.W.3-Gauri Shanker, who is the
nephew of the deceased Kadhiley, had
deposed in his examination-in-chief that the
incident had occurred three years ago. His
house is adjacent to the house of Kadhiley
(deceased). On the date of incident, he was
sleeping in his house. At about 02:00 a.m., on
noise, he woke up; came outside his house;
and saw towards the house of Brahmadeen
(P.W.1) in the light of torch that Sarafat,
Noor
Mohammad
and
Ajay
(convicts/appellants), while using abusive
language, were dragging Kadhiley (deceased)
and at the same time, Maina Devi (P.W.1)
ran to save Kadhiley (deceased). Then,
Sarafat,
Noor
Mohammad
and
Ajay
(convicts/appellants) hit on the neck of
Kadhiley with a sword, as a consequence of
which, Kadhiley (deceased) died on the spot.
Thereafter,
convicts/appellants,
while
threatening to kill, ran away. Tulsi came there
on alarm raised.

In cross-examination, P.W.3 had
deposed that his house is on the western
410 INDIAN LAW REPORTS ALLAHABAD SERIES
side of the house of Kadhiley. He denied
that he reached on the spot when assailants
fled away. He reached on the spot when
accused assaulted the deceased. He denied
that Brahmadeen (P.W.1) told the name of
murderers to him. The exit of his house is
towards southern direction. At the time of
the incident, he was not sleeping in his
house but he was awake; his family
members were sleeping; he returned from
the field after sprinkling medicine on
wheat; and after taking food, he had just
lying on the bed. He came outside the
house on hearing the noise of Maina Devi
(P.W.2). He did not listen the alarm of
Kadhiley (deceased) ''Maar dala maar dala'.
When he reached the spot, Maina Devi
(P.W.2) and Pammi were there and apart
from them, no one was present in the
house. When he came from home, he saw
that Kadhiley was dead and was lying on
the back; Maina Devi and Pammi were
crying on clinging the deadbody of
Kadhiley; and there were blood on their
cloths.

P.W.3 had further deposed that
there was no light on the spot but he had a
torch. The police personnel did not see his
torch nor memo of his torch was prepared.
Apart from him, he did not see the torch of
anyone. He further deposed that before this
case, Kadhiley (deceased) had lodged a
case under Section 307 I.P.C. against the
accused, in which he was a witness. He was
not aware whether the accused were
acquitted or not in the said case. In the said
case, he had deposed before the Court that
he had not seen the incident. He further
deposed that Kadhiley (deceased) had
lodged another case under Section 307
I.P.C. against the accused, wherein he was
also a witness. He further deposed that
from the place where the deadbody of
Kadhiley was lying, inner portion of the
house of Kadhiley was visible and a lamp
was lighting inside the house of Kadhiley.

P.W.3 had further deposed that
after cutting forest wood, he was preparing
''Jhabai'.
Kamlesh
(father
of
convict/appellant Ajay), who was working
as Forester, caught him once and asked him
not to cut the wood again and since then, he
had stopped the work of cutting wood. He
denied the suggestion that on account of the
aforesaid, he falsely deposed against the
son of Kamlesh, namely, Ajay. He also
denied that the incident did not occur
before him.

P.W.3 had further deposed in his
cross-examination
that
the
deceased
Kadhiley was the elder brother of his
father. At the time of incident, Noor
Mohammad
and
Sarafat
(convicts/
appellants) were working as ''Watch-man'
in the forest. When he used to prepare
''Jhabai' after cutting the wood from forest
and sold that, his business was going on but
when
Noor
Mohammad
and
Sarafat
(convicts/appellants) did strictness, then,
his business of preparing ''Jhabai' after
cutting the wood from forest was stopped.
He denied the suggestion that on account of
the aforesaid, he falsely deposed against
Noor
Mohammd
and
Sarafat
(convicts/appellants). He also denied that
he had not seen any incident.

P.W.3 had also deposed in his
cross-examination
that
Inspector
had
recorded his statement. The Investigating
Officer of the case had recorded his
statement after 1-11⁄2 month from the date
of incident. When the ''panchayatnama' of
the deadbody was prepared, he was present
but his statement was not recorded by the
Inspector,
who
was
preparing
the
''panchayatnama' of the deadbody. His
6 All. Sarafat & Anr. Vs. State of U.P.
411
statement was recorded by another police
personnel. The place where he was
standing at the time of incident, was shown
by him to the Inspector.

(18)

After
completion
of
the
prosecution evidence, statement of the
convicts/appellants
under
Section
313
Cr.P.C. was recorded in which they have
denied the entire prosecution case and had
stated that Sarafat and Noor Mohammad
(convicts/appellants) were the ''Watchman'
in the Forest Department, whereas father of
Ajay (convict/appellant), namely, Kamlesh,
was the Forester in the Forest Department.
The informant (P.W.1) and his family
members used to cut wood of forest
stealthily,
therefore,
they
(convicts/appellants
Sarafat,
Noor
Mohammad and father of convict/appellant
Ajay, namely, Kamlesh) restrained the
informant (P.W.1) and his family members
from cutting the wood in the forest and due
to this reason, the convicts/ appellants were
falsely implicated in the instant case.

(19) The learned trial Court believed
the evidence of Brahmadeen (P.W.1),
Maina Devi (P.W.2) and Gauri Shanker
(P.W.3) and found the appellants guilty for
the offence punishable under Section 302
read
with
Section
34
I.P.C.
and,
accordingly, convicted and sentenced the
appellants
in
the
manner
stated
in
paragraph-2 here-in-above. The trial Court,
however, acquitted the appellants for the
offences punishable under Sections 504,
506 (2) I.P.C. and Section 3(2)(v) of the
S.C./S.T. Act.

(20) It is pertinent to mention that the
State of U.P. has not preferred any appeal
under Section 378 (1) of the Code of
Criminal Procedure against the acquittal of
the appellants under Sections 504, 506 (2)
I.P.C. and Section 3 (2) (v) of the S.C./S.T.
Act.

(21) As mentioned earlier, aggrieved by
their
conviction
and
sentences,
convicts/appellants
Sarafat
and
Noor
Mohammad preferred Criminal Appeal No.
61
of
2010
before
this
Court
and
convict/appellant Ajay also preferred another
appeal i.e. Criminal Appeal No. 120 of 2010.

(22) Heard Shri Nagendra Mohan
assisted by Shri Anil Kumar Mishra, learned
Counsel for the convicts/appellant Ajay in
Criminal Appeal No. 120 of 2010, Shri
Nadeem Murtaza, learned Counsel for the
convicts/appellants
Sarafat
and
Noor
Mohammad in Criminal Appeal No. 61 of
2010
and Smt. Smiti
Sahai,
learned
Additional Government Advocate for the
respondent/State.

(23) Shri Abhishek Mishra, learned
Counsel for the complainant did not appear.

(C) ARGUMENTS ON BEHALF OF
THE CONVICTS/ APPELLANTS

(24) Shri Nagendra Mohan assisted by
Shri Anil Kumar Mishra, learned Counsel for
the convicts/appellant Ajay in Criminal
Appeal No. 120 of 2010 has argued as under
:-

I. The alleged incident was said
to be occurred on 18/19.04.2004, at 02:00
a.m., whereas the F.I.R. of the alleged
incident was lodged on 19.04.2004 at 10
a.m. The distance between the place of the
incident and police station Nighasan was
13 Kms. Thus, there was an unexplained
delay of about eight hours in lodging the
FIR which indicates that the alleged
eyewitnesses i.e. P.W.1, P.W.2 and P.W.3
were not present at the scene of occurrence;
412 INDIAN LAW REPORTS ALLAHABAD SERIES

II. There was no motive on the
part of the convicts/ appellants to commit
the murder of the deceased Kadhiley.
However, motive for falsely implicating the
convicts/appellants was available on the
part of the informant (P.W.1) and his
family members inasmuch as informant
(P.W.1) and his family members used to
cut the wood of forest by theft and the
convicts/appellants
Sarafat,
Noor
Mohammad and father of convict/appellant
Ajay, namely, Kamlesh, being Watchman
and Forester, respectively, used to restrain
the informant (P.W.1) and his family
members from cutting the wood from the
forest illegally.

III. P.W.1, P.W.2 and P.W.3, the
alleged eyewitnesses, were son, daughter
and nephew of the deceased Kadhiley and
they were interested witnesses, hence
testimonies of all three eyewitnesses being
interested
testimony
cannot
be
said
trustworthy;

IV. Though at the time of
incident, the prosecution had alleged that
the independent witnesses were also
present but none of the independent witness
was produced by the prosecution to prove
the prosecution case.

V. The alleged incident occurred
on 18/19.04.2004, at 02:00 a.m. in a dark
night
and,
hence
identification
of
convicts/appellants was not possible as
there was no source of light available.
Prosecution story of ''Dibbi' (a kerosene oil
lamp), placed on ''Kuthla' (box made with
soil) in the thatch of the deceased Kudhiley
burning and P.W.3 Gauri Shanker armed
with torch at the time of incident, is
incredible as during investigation also no
alleged ''Dibbi' (a kerosene oil lamp) and
no torch were seized by the Investigating
Officer and therefore, in absence of any
source of light, claim by the witnesses that
they had identified the convicts/appellants,
was impossible and is not creditworthy.

VI. The evidence of PW-1, PW-2
and PW-3 indicates that there was prior
enmity between the deceased Kadhiley and
convicts/appellants because of which false
implication cannot be ruled out;

VII. The investigation of the case
was tainted as the blood stained clothes
were not seized by the Investigating Officer
at the time of panchayatnama. P.W.3-Gauri
Shanker
had deposed
in
his
crossexamination that when he reached at the
place of occurrence, Maina Devi (P.W.2)
and Pammi were crying by clinging the
deadbody of the deceased Kadhiley and
stains of blood was present on the cloths of
Maina Devi (P.W.2) and Pammi. But the
Investigating Officer did not seize the
clothes of Maina Devi (P.W.2) and Pammi;

VIII. The prosecution story does
not find any corroboration from medical
evidence. In the F.I.R., it was alleged that
all the three convicts/appellants murdered
the deceased Kadhiley by inflicting injuries
with sword. All the alleged three eyewitnesses had deposed before the trial
Court that at the time of incident, Sarafat
(convict/appellant) assaulted the deceased
with sword, whereas other two convicts,
namely, Noor Mohammad and Ajay only
caught hold the legs and hands of the
deceased Kadhiley. However, injuries no. 5
and 6, are contusions, which could be
attributable by blunt object like lathi and
danda but the prosecution had denied the
use of any blunt object like lathi and danda
in the alleged incident. Hence, looking to
the
aforesaid
contradictions,
convicts/
appellants be granted benefit of doubt.
6 All. Sarafat & Anr. Vs. State of U.P.
413