# Sayeed @ Sahid & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 279
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-27
- **Case number:** Criminal Appeal No. 6693 of 2010
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sayeed-sahid-anr-in-jail-v-state-of-u-p-47570
- **Pages:** 15

## Headnote

Criminal Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302/34 , 307/34 - The Code of
criminal procedure, 1973 - Section 313,
Arms Act, 1959 - Sections 25/4 - oral
testimony
of
a
witness
cannot
be
discarded or ignored merely on the
ground that he is an interested witness
or a related witness - witness cannot be
totally disbelieved merely because there
is some false statement in his testimony
- entire oral testimony is to be
appreciated as a whole and only then
any
conclusion
about
his
trustworthiness can be drawn - defects
in the investigation itself cannot be a
ground
for
acquittal
so
these
discrepancies or omissions will not in
any
way
adversely
affect
the
prosecution case - in case of direct
evidence, motive becomes irrelevant but
if the prosecution assigns any motive
then it has to prove it.(Para -12,
14,18,20)

Complainant (PW-1) along with his father &
3 brothers - after offering Namaz - coming
out from the Mosque - accused-persons
armed with knives/ chhura - saying that
today no one should be let alive suddenly
with the intention to kill, attacked them - All
the four accused persons seriously injured
three brothers of complainant - Injured
brothers were taken to the District Hospital
by the complainant and his father with the
aid of other villagers - 2 brothers dead -
PW-2 (another brother) under treatment -
incident witnessed by complainant and his
father and other villagers in the electric
light. (Para - 3)

HELD:-Oral testimony of accused informant/
eye witness (P.W.-1) and injured witness
(P.W.-2) is reliable, both these witnesses
have supported the prosecution case and
have corroborated the FIR version and their
oral testimony is fully corroborated by medical
evidence and there is no contradiction
between the two. Eye witness account of the
incident produced by the prosecution is
reliable and trustworthy and also gets support
from the medical evidence. Weapons used in
the incident have been recovered at the
instance of the accused and recovery is also
proved
which
further
corroborates
the
prosecution case. So from evidence on record
the prosecution case stands proved. No
perversity or illegality in the findings recorded
by the trial court. Findings of conviction
recorded by trial court are liable to be upheld.
Sentence awarded is also appropriate and
needs no interference. Criminal appeal is
liable to be dismissed.(Para - 22)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

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9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
279
(2021)09ILR A279
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 6693 of 2010

Sayeed @ Sahid & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Smt. Nayan Shri, Sri I.M. Khan, Sri
Sudhanshu Srivastava

Counsel for the Opposite Party:
A.G.A.

(A)
Criminal Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302/34 , 307/34 - The Code of
criminal procedure, 1973 - Section 313,
Arms Act, 1959 - Sections 25/4 - oral
testimony
of
a
witness
cannot
be
discarded or ignored merely on the
ground that he is an interested witness
or a related witness - witness cannot be
totally disbelieved merely because there
is some false statement in his testimony
- entire oral testimony is to be
appreciated as a whole and only then
any
conclusion
about
his
trustworthiness can be drawn - defects
in the investigation itself cannot be a
ground
for
acquittal
so
these
discrepancies or omissions will not in
any
way
adversely
affect
the
prosecution case - in case of direct
evidence, motive becomes irrelevant but
if the prosecution assigns any motive
then it has to prove it.(Para -12,
14,18,20)

Complainant (PW-1) along with his father &
3 brothers - after offering Namaz - coming
out from the Mosque - accused-persons
armed with knives/ chhura - saying that
today no one should be let alive suddenly
with the intention to kill, attacked them - All
the four accused persons seriously injured
three brothers of complainant - Injured
brothers were taken to the District Hospital
by the complainant and his father with the
aid of other villagers - 2 brothers dead -
PW-2 (another brother) under treatment -
incident witnessed by complainant and his
father and other villagers in the electric
light. (Para - 3)

HELD:-Oral testimony of accused informant/
eye witness (P.W.-1) and injured witness
(P.W.-2) is reliable, both these witnesses
have supported the prosecution case and
have corroborated the FIR version and their
oral testimony is fully corroborated by medical
evidence and there is no contradiction
between the two. Eye witness account of the
incident produced by the prosecution is
reliable and trustworthy and also gets support
from the medical evidence. Weapons used in
the incident have been recovered at the
instance of the accused and recovery is also
proved
which
further
corroborates
the
prosecution case. So from evidence on record
the prosecution case stands proved. No
perversity or illegality in the findings recorded
by the trial court. Findings of conviction
recorded by trial court are liable to be upheld.
Sentence awarded is also appropriate and
needs no interference. Criminal appeal is
liable to be dismissed.(Para - 22)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Abdul Sayeed Vs St. of M.P., (2010) 10 SCC
259

2. Jarnail Singh Vs St. of Pun., (2009) 9 SCC
719

3. Baleshwar Mahto Vs St. of Bihar, (2017) 2
SCC (crl.26)

4. Rajesh Singh Vs St. of U.P., (2011) 11 SCC
(page-144)
280 INDIAN LAW REPORTS ALLAHABAD SERIES
5. C. Muniappan & ors. vs St. of T.N.u, (2010)
9 SCC 567

6. U.O.I. Vs Prakash P. Hinduja & anr. , AIR
2003 SC 2612

7. Sambhu @ Bijoy Das & anr. Vs St. of
Assam, AIR 2010 SC 3300

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri I.M. Khan, learned
counsel for the appellants, learned A.G.A.
for the State and perused the record.

2. This criminal appeal has been filed
against the common judgment and order
dated 26.08.2010 passed by the Additional
Sessions Judge, court no.6 Saharanpur in
S.T.s No. 742 of 2005 (State vs. Sayeed
alias Shahid) in case crime no.448/05
under Section 302 and 307 IPC, S.T.
No.744 of 2005 (State vs. Sayeed alias
Shahid) in case crime no.453/05 under
Sections 25/4 of Arms Act, and S.T.
No.746 of 2005 (State vs. Zahid) Case
Crime No.470/05, under Section 25/4 of
Arms Act, P.S. Kotwali Dehat, District-
Saharanpur,
convicting
the
accusedappellants (Sayeed @ Shahid and Zahid)
under Section 302/34 and sentencing each
of them to undergo life imprisonment, and
a fine of Rs.5000/- and in default of
payment of fine, three months simple
imprisonment, under Section 307/34 to
undergo rigorous imprisonment for seven
years and fine of Rs. 3,000/- and in default
of payment of fine, three months simple
imprisonment and further convicting the
accused-appellant
(Sayeed
@
Shahid)
under Section 25/4 of Arms Act and
sentencing
him
to
undergo
rigorous
imprisonment for one year and a fine of
Rs.1000/- and in default of payment of fine,
one month simple imprisonment and
accused-appellant (Zahid) under Section
25/4 of Arms Act and sentencing him to
undergo rigorous imprisonment for one
year and imposing a fine of Rs.1000/- and
in default of payment of fine, one month
simple imprisonment. All the sentences to
run concurrently.

3. In brief the prosecution case is that
complainant-
Furkan
gave
a
written
information dated 09.09.2005 at Police
Station-
Kotwali
Dehat,
District-
Saharanpur that today on 09.09.2005 at
about 7:00 p.m. he along with his father
Rashid Ahmad and brothers Nasir, Kabir
and Abdul Qadir after offering Namaz were
coming out from the Mosque situated at
pooja road, village- Rasoolpur when
accused-persons
Islam,
Shahid,
Zahil
(correct name-Zahid) and Israr who are the
resident of the same village armed with
knives/ chhura and saying that today no one
should be let alive suddenly with the
intention to kill, attacked them. His
brothers Nasir and Kabir got seriously
injured and Abdul Qadir also received
serious injuries. Fear and panic prevailed.
The devotees coming out from the Mosque
ran helter-skelter bare footed to save their
lives and the neighbourers out of fear shut
the doors and windows of their houses. All
the four accused persons seriously injured
the three brothers of the complainant.
Complainant and his brothers ran towards
their house to save their lives, the accusedpersons chased them and entered into their
house because of which the female
members of the house ran outside towards
the forest to save their lives. Injured Nasir,
Kabir and Qadir were taken to the District
Hospital by the complainant and his father
with the aid of other villagers where the
doctor declared Nasir and Kabir dead while
Abdul Qadir is under treatment. The
incident has been witnessed by the
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
281
complainant and his father and other
villagers in the electric light.

4.

On
the
aforesaid
written
information, case crime no.448 of 2005
under Sections 307 and 302 IPC was
registered against Islam, Sayeed, Zahil and
Israr
all
sons
of
Phullu
and
the
investigation
commenced,
the
inquest
report and related papers of the dead bodies
of Nasir and Kabir were prepared, the dead
bodies were sealed and sent for postmortem. The Investigating Officer visited
the place of occurrence and collected the
blood stained and plain soil from the spot
and sealed it in separate containers,
prepared the site plan, recorded the
statement
of
complainant
and
other
witnesses.

During
the
course
of
the
Investigation on 14.09.2005, the police party
comprising Investigating Officer S.O. Vijay
Kumar
Yadav, HCP
Madanlal Singh,
Constable- Sudhir Kumar, Constable- Sunil
Kumar and Constable (driver)- Surendra
Singh at about 4:30 a.m. arrested the accused
Sayeed and Islam and on interrogation they
furnished the information that the knife and
Chhuri used by them in the incident was
concealed and on the aforesaid information,
one knife was recovered at instance of
accused Sayeed alias Shahid under the trees
towards west of Kothi situated at Maqbool
Nursery and another knife was recovered at
the instance of Islam from other place in
presence of public witnesses Furkan Ahmed
and Mohd. Ishaq at about 6:30 a.m. The
recovered knives were sealed on the spot and
recovery memo was prepared and on the
basis of recoverey memo, a separate FIR case
crime no.453 of 2005 under Section 4/25 of
Arms Act against Sayeed alias Shahid and
case crime no.454 of 2005 under Section 4/25
of Arms Act against Islam were registered on
14.09.2005 at 8:30 a.m. at police stationKotwali Dehat, Saharanpur.

Further on 20.09.2005, the police
party comprising Investigating Officer S.O.
Vijay Kumar Yadav, HCP- Madanlal Singh,
Constable-
Rajveer
Singh,
Constable-
Dalchandra, Constable (driver)- Surendra
Singh arrested accused Zahid at 7:00 am and
on his interrogation he also disclosed that he
has concealed the knife used in the incident
and on his instance the same was recovered at
about 7:50 am from the western boundary of
Moonji field of Maqbool. The recovery
memo was prepared on the spot and the knife
was sealed and a case crime no.470 of 2005
under Section 4/25 of Arms Act was
registered against accused-Zahid.

The investigation of the aforesaid
two cases was conducted by S.I.- Ashok
Kumar and S.I.- Adesh Kumar respectively
who visited the place of occurrence, prepared
the site plan, recorded the statement of
witnesses and submitted the charge-sheets.

The investigation of the main case
under Section 302 and 307 was completed by
Inspector
Vijay
Kumar
Yadav-
SHO,
Kotwali Dehat, Saharanpur and he submitted
the charge-sheet against all accused-persons
namely Israr, Islam, Sayeed alias Shahid and
Zalim alias Zahid under Section 307 and 302
IPC.

5. Accused Israr and Islam being
juvenile, their cases were separated and
transmitted to Juvenile Justice Board for
further proceedings. Accused Sayeed alias
Shahid and Zalim alias Zahid were tried for
offence under Sections 307 and 302 IPC and
also under Section 4/25 of Arms Act in the
three Sessions Trial which have been
consolidated and decided by the impugned
common judgment.

6. The trial court framed the charges
under Section 302/34 and 307/34 IPC
282 INDIAN LAW REPORTS ALLAHABAD SERIES
against accused Sayeed alias Shahid and
Zalim alias Zahid and the separate charge
under Section 4/25 of against each accused
Sayeed alias Shahid and Zahid. Accused
denied the charges and claimed for trial.
The prosecution has examined 10 witnesses
who have proved 33 prosecution papers
marked as Ex.Ka-1 to Ex.Ka-33. Four
material exhibits (Ex.1 to 4) were also
produced before the trial court. The
statement of accused were recorded under
Section 313 Cr.P.C. in which they have
denied the prosecution case. The accused
have also stated that injury report and Bed
Head Ticket (BHT) of injured Qadir have
been fabricated on legal advice, the
Investigation has been conducted showing
ante-time proceedings. They have also
stated that they have been arrested from
their houses and falsely implicated and they
are innocent. No evidence in defence was
produced.

7. The injured Abdul Qadir was
medically examined on 09.09.2005 at 10:00
p.m. by Dr. Mahesh Grover, Emergency
Medical Officerr of District Hospital,
Saharanpur. Following injury was found on
his body:

Incised wound 3 cm X 1cm X
muscle deep on left side head, behind left
year, fresh bleeding was present.

In the opinion of the doctor, the
injury was caused by some sharp object and
duration was fresh, injured was admitted.
Dr. Mahesh Grover (P.W.-3) has proved
the injury report as Ex.Ka-2 and has further
stated that the injury of the injured may
have been received at 7:00 pm and may be
caused by knife/ choori. Dr. Mahesh
Grover (P.W.-3) has also proved the BHT
of injured Abdul Qadir marked as Ex. Ka-3
according to which the injured was
admitted
in
SBD
District
Hospital,
Saharanpur on 09.09.2005 at 10:00 p.m.
and was discharged from hospital on
10.09.2005. The details of treatment given
to the injured (patient) are also recorded in
it.

8. The postmortem of deceased-Nasir
was conducted on 10.09.2005 at 4:30 a.m.
by Dr. R.K. Gupta and according to postmortem report Ex.Ka-4 the age of the
deceased was about 16 years, average built
body, Rigor Mortis was present all over the
body and there was no decomposition, eyes
were
closed.
Following
ante-mortem
injuries were found on the body.

i. Incised wound 1cm X 0.5cm X
muscle deep on right side nose, 2cm below
right eye-brow.

ii. Abrasion 5cm X 3cm on right
side neck, 4 cm below right ear.

iii. Abrasion 2cm X 2cm on left
side chest, 7cm above left nipple at 1
O'clock position.

iv. Incised wound 4cm X 2cm X
abdominal cavity deep on front of abdomin,
in mid-line, 13cm above imbilicus.

In the internal examination both
lungs were pale, right chamber of heart
contained blood, peritoneum was lacerated
and one litre blood was in the cavity,
stomach contains 100gm semi digested
food, in small intestine and large intestine
gases and fecal matters were present,
gallbladder was full, spleen and kidneys
were pale.

In the opinion of doctor, the death
was due to shock and haemorrhage, as a
result of injuries sustained and duration of
death was about half day.

9. The postmortem of other deceased-
Kabir was conducted on 10.09.2005 at 3:45
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
283
a.m. by Dr. R.K. Gupta and according to
postmortem report (Ex.Ka-5) the age of the
deceased was about 22 years, average built
body, Rigor Mortis was present all over the
body, no decomposition present, eyes were
closed.

Following ante-mortem injuries
were found on the body:

i. Incised wound 4cm X 0.25cm,
muscle deep on left side of forehead, 2cm
above left eye brow.

ii. Incised wound 3cm X 0.25cm X
muscle deep on left side forehead, 3cm
above left eye brow and this injury was
communicating to injury no.1.

iii. Incised wound 7cm X 0.5cm X
bone deep on right side head, 7cm above
right ear.

iv. Incised wound 5cm X 3cm X
abdominal cavity deep, 6cm above imblicus
at 11.45 O'clock position. Loops and
omentum of intestine coming out of wound.

v. Incised wound 5cm X 1cm X
muscle deep on left side back of chest, 3cm
below inferior angle of left scapula.

vi. Incised wound 5cm X 2cm X
muscle deep on left side back of chest,
10cm below injury no.5.

vii. Incised wound 8cm X 3cm X
muscle deep on back right side chest, 7cm
below inferior angle of right scapula.

In internal examination both
lungs were pale, right chamber of heart
contains blood, peritoneum was lacerated
and one litre blood was present, stomach
was empty, in small intestine and large
intestine gases and fecal matters were
present, gallbladder was full and lever was
lacerated and pale, spleen and kidneys were
pale.

In the opinion of doctor, death
was due to shock and haemorrhage, as a
result of injuries sustained and duration
was about half day.

Both postmortems were done
under artificial light by the order of ADM
(F) and CMS, SBD Hospital, Saharanpur.

10. The prosecution case is based on
direct evidence and two eye witnesses
Furkan (P.W.-1) and Abdul Qadir (P.W.-2)
have been produced by the prosecution.
Furkan (P.W.1) is also the complainant
while P.W.-2 is injured, they are also
brothers of the deceased Nasir and Kabir
and
hence
related
witnesses.
The
examination in chief of Furkan (P.W.-1)
has
been
recorded
twice,
first
on
07.01.2008 and thereafter on 16.04.2008
when the case of co-accused Islam was
consolidated but later on it was separated
and sent to Juvenile Justice Board. In
examination
in
chief
recorded
on
16.04.2008 the witness has said that the
incident is about two years and six months
before. It was 7:00 pm when he was
coming out of the Mosque after offering
Namaz; Kabir, Qadir, Nasir and his father
Rashid were also with him, when we came
out the accused-persons namely Sayeed,
Zahid,
Islam
and
Israr
armed
with
knives/Chhuri were standing there and said
that none of them should go alive and all
the accused persons attacked Kabir and
Nasir with knives and Chhuri. When Qadir
came to rescue them, they also stabbed him
with knife on his upper part of the neck.
Accused also chased him but he ran away.
In this attack Kabir, Nasir and Qadir
received injuries, and he, his father and
other persons of the village carried the
injured persons to the hospital where doctor
declared Nasir and Kabir dead while Abdul
Qadir was admitted in the hospital and
medically examined. At the place of
occurrence, there was electric light. The
witness has further stated that he got the
284 INDIAN LAW REPORTS ALLAHABAD SERIES
report of the said incident written by Killan
Saheb (Advocate) in the hospital and
lodged the report at police station. The
witness has proved the Tehrir marked as
Ex.Ka-1.Witness has further stated that
panic prevailed in village due to this
incident.

11. Abdul Qadir (P.W.-2) in his
examination in chief has also supported the
prosecution case and said that the incident
took place about three years ago. It was
7:00 pm when he along with his brothers
Kabir, Nasir, Furkan and father Rashid
were coming out from the Mosque after
offering Namaz. This Mosque is near his
house. The accused-persons Zahid, Sayeed,
Islam and Israr met outside the Mosque,
they were armed with knives/ Chhuri and
with the intention to kill, they attacked
them with the aforesaid weapons because
of which he, Kabir and Nasir received
injuries. There was electric light at the
place of occurrence. The incident was also
seen by his brother Furkan and father. The
other persons ran away barefooted and
there was a state of panic in the village.
After inflicting injuries the accused-persons
ran away. After the incident we were
brought to District Hospital, Saharanpur by
our father and Samir, Naseem, Furkan
where he was medically examined and
admitted in the hospital. Nasir and Kabir
were declared dead. The report of this
incident was lodged by his brother. He was
admitted in the hospital for eight days,
where he got treatment.

12. Learned counsel for the appellants
contended that both the public witnesses
Furkan (P.W.-1) and Abdul Qadir (P.W.-2)
are real brothers and also the brothers of
the deceased and, therefore, related and
interested witness. There is no independent
witness of the incident. Even in the FIR no
independent public witness has been named
while the place of occurrence is a public
place and it has come in the evidence that
people after offering prayers were coming
out from the Mosque. The Imam of the
Masque was also present and seen the
alleged incident. There is one tea-shop in
the southern side of the Mosque where
people remain till 8:30 - 9:00 pm and there
is also a factory where people work till
8:00 - 8:30 pm. Learned counsel further
contended that the presence of Furkan
(P.W.-1), is highly doubtful as he has
admitted in his cross-examination that he
lives in another house which is in other
village Ramzanpura situated at a distance
of about 1- k.m. from the place of
occurrence. It is also in the evidence that
there is another Mosque in the village
Ramzanpura which is near the house of
witness Furkan (P.W.-1) so it is unnatural
and improbable that he should have come
to the Mosque of village Rasoolpur for
offering Namaz. It is further contended that
he has not received any injury and further
in the medico- legal report of Abdul Qadir,
the name of Sameer is mentioned as the
person who brought the injured to the
hospital, the name of Furkan (P.W.-1) is
not there which also creates serious doubts
about the presence of this witness at the
time of incident. The learned counsel
further contended that P.W.-2 Abdul Qadir
has denied that evenings prayer (Maghrib
Namaz)
in
all
Mosques
is
offered
simultaneously and has said that it is
offered with time difference of 15 minutes
which is totally incorrect and this false
statement has been intentionally made just
to show the presence of Furkan (P.W.-1) at
the time of incident.

Learned A.G.A., on the other
hand contended that the house of Furkan
(P.W.-1) is only 100 meters away from the
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
285
place of occurrence, just south to the road.
The Mosque situated at village Rasoolpur
is nearer to his house while it has come in
the evidence that the other Mosque situated
at
village
Ramzanpura
was
under
construction at the time of the incident.
Both the witnesses Furkan and Kabir have
fully supported the prosecution version and
there is consistency in their statements.
Except some minor discrepancies, there is
no other major discrepancy or contradiction
which creates doubts on their presence or
makes them untrustworthy. Further Abdul
Qadir is also an injured witness and his
presence at the place of occurrence in no
way can be doubted.

It is a settled principle of law that
the oral testimony of a witness cannot be
discarded or ignored merely on the ground
that he is an interested witness or a related
witness. What is required is cautious
approach in scrutiny and appreciation of his
oral statement. Both the witnesses have
supported
the
prosecution
case
and
corroborated
the
allegation
of
FIR
regarding genesis of occurrence, manner of
assault, date, time and place of occurrence
and nature of injuries. Their oral testimony
got fully corroborated by medical evidence
and there is no contradiction between the
two. According to medical evidence both
the deceased have suffered incised wounds,
and injured Kabir has also suffered one
incised wound on the back of his neck. The
date and time of the incident is also
corroborated from the medical evidence as
the doctor has opined that said injuries can
be caused on 09.09.2005 at 7:00 pm with
knife/ chhuri and the injuries of the
deceased Nasir and Kabir were sufficient in
the ordinary course of nature to cause
death. The two witnesses Furkan (P.W.-1)
and Abdul Qadir (P.W.-2) have been put at
lengthy cross-examination by the defence
to test their trustworthiness but there is no
major discrepancy or contradiction in their
statements which creates any kind of doubt
or suspicion about their presence and
seeing of occurrence. From the evidence on
record it is established that incident has
occurred in a very daring and gruesome
manner. The complainant and his brother
when they came out from the Mosque were
suddenly attacked by the accused-persons
holdings knives/ Chhuries chased in the
public way and were inflicted knives blow
on vital parts of their body. So it was
natural and probable that the persons
present there, out of fear have escaped to
save their lives and in this situation, it is
not expected that anyone would have dared
to come forward. Further the injured/
deceased and accused are resident of the
same village and are also neighbourers.
Considering all these facts and situation,
production of independent public witnesses
cannot be insisted and only on this ground
the cogent and consistent oral testimony of
eye witness and injured witness cannot be
discarded. It has come in evidence that
Qadir, Nasir and Kabir all these injured
were carried to hospital by complainant, his
father, Sameer and other villagers. It is also
clear from evidence on record that Nasir
and Kabir were seriously injured and
ultimately succumbed to their injuries. It is
probable that complainant may be with his
seriously injured brothers and Qadir whose
injury
was
not
so
serious
was
accompanying Sameer at the time of his
medical examination so his name was
recorded as the person who brought the
injured. The presence of complainant
Furkan at the place of occurrence cannot be
doubted on this ground.

13. Learned counsel for the appellants
further contended that prosecution is not
clear about the place of occurrence and
according to prosecution initially the
286 INDIAN LAW REPORTS ALLAHABAD SERIES
incident has occurred at one place then
prosecution developed its case and said that
it occurred at two places and lastly it was
said that incident has also occurred inside
the house. Learned counsel submitted that
the witnesses in their oral testimony has not
supported the allegations of FIR in this
respect. No witness has supported this
allegations of the FIR that accused entered
into their house and female members ran
outside towards the forest to save their
lives, so there is utter confusion and major
discrepancy in prosecution case regarding
place of occurrence. Learned counsel
further contended that Investigating Officer
has also collected blood from only one
place while it has come in the evidence that
one of the deceased fell near the entrance
of the Mosque and the other fell outside the
door of his house, so the place of
occurrence is not established.

According to site plan Ex.Ka-18,
the house of the injured/ deceased is in
north-west of the Mosque with Southern
entrance, 44 paces away from the eastern
entrance of the Mosque and there is a Rasta
in between. From the evidence on record, it
is clear that the incident started at the
southern entrance of the Mosque. Accusedattacked the complainant and his brothers
with knives/ chhuries when they came out
from the Mosque chased them and inflicted
knives blow. One of the injured fell down
near the southern entrance of the Mosque
while the other fell down near the main
door of his house. The third one received
injury on his neck while trying to rescue his
brothers and complainant saved himself by
running away. The two places where
deceased fell down have been shown by the
letters- ''A' & ''B' in the site plan and the
Investigating Officer collected the blood
stained and plain soil from both these two
places which is mentioned in the site plan
itself. So the place of occurrence is clear
from the evidence on record and there is no
doubt about it. It also established that one
deceased fell just outside main entrance of
his house, so it is natural and probable that
family members may have come outside.
The allegation that accused entered into the
house and female members ran towards the
forest may be exaggeration but this does
not create any kind of doubt about the place
of occurrence or the manner in which
incident
has
occurred.
It
is
clearly
established from the evidence on record
that the incident has started at the eastern
entrance of the mosque and culminated at
the door of the house of injured/ deceased
in an area of about 44 paces.

Learned
counsel
for
the
appellants also disputed the place of
occurrence submitting that HCP- Sunil
Kumar (P.W.-6) who is Head Moharir and
writer of Chick and GD of crime no.448/05
under Section 307 and 302 IPC, in his
cross-examination has said that:-

"ये बात सही है नक इस घटना के
नसलनसले में थाना जनकपुरी से भी सूचना आई
थी नजसका उल्लेख GD की रपट निं० 51 पर
नकया गया है।"

On the aforesaid, the learned
counsel tried to build up the argument that
there was no occasion of receiving any
information from another police station
about this incident and it clearly indicates
that the incident has occurred at some other
place.

P.W.-6 has stated that some
information was also received from police
station- Janakpuri regarding this incident
which was mentioned in the GD No.51 but
it is not clear from his statement what that
information was. The copy of the said GD
is also not on record to make it clear. It also
appears that at the time of crossexamination, the original GD was brought
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
287
by the witness and after its perusal, he has
made this statement. If this information was
of such a nature which was creating any
doubt about place of occurrence, it was on
the part of the defence to bring it on record.
It appears that the defence counsel has very
intelligently cross-examined the witness
and knowingly and willingly left it
unexplained just to create a doubt. On the
aforesaid statement which is not clear about
the kind of information, no inference can
be drawn that the place of occurrence is
somewhere else. It creates no suspicion
about the place of occurrence. It also
appears from the material on record that
after the incident, the situation became
tense in the village, so there is probability
that some instructions may be given by the
higher authorities regarding law and order
and the information referred to in the
statement of the witness may be related to
it.

14. Learned counsel for the appellants
further contended that the injury of P.W.-2
Abdul Qadir is simple in nature and
fabricated, just to make him an injured
witness. This injury may be self inflicted,
so no reliance can be placed on the oral
testimony of P.W.-2 Abdul Qadir only for
the reason that he is an injured witness.
Learned counsel further submitted that
P.W.-2
Abdul
Qadir
in
his
cross
examination has also stated that Israr was
arrested on spot by the police. He was
taken away by the police with knife while
according to the statement of Investigating
Officer- Vijay Kumar Yadav (P.W.-5) Israr
was arrested on 11.09.2005. Learned
counsel submitted that it is a major
contradiction affecting the reliability of the
witness.

According to medical evidence
Abdul Qadir (P.W.-2) has received one
incised wound 3 cm x 1 cm x muscle deep
on left side of head behind left ear. He was
medically examined just after the incident
at 10:00 pm at District Hospital. In medical
examination fresh blood was present. In the
opinion of the doctor the injury was caused
by sharp object and duration was fresh. The
injury although simple but it is on the vital
part of the body, so it cannot be self
inflicted or fabricated. It is true that there is
discrepancy in the statement of the witness
about the arrest of accused- Israr on the
spot. This part of the statement may be
untrue and exaggeration but his remaining
oral testimony is consistent and there is no
other major discrepancy. It is settled
principle of law that a witness cannot be
totally disbelieved merely because there is
some false statement in his testimony. The
entire oral testimony is to be appreciated as
a whole and only then any conclusion about
his trustworthiness can be drawn. So
merely on the basis of one incorrect
statement, the entire oral testimony of
P.W.-2 cannot be brushed aside. P.W.-2
Abdul Qadir is an injured witness so due
credence needs to be accorded to his
testimony. In the case of Abdul Sayeed vs.
State of M.P., (2010) 10 SCC 259 Hon'ble
Apex Court has held as under:

"28. The question of the weight to
be attached to the evidence of a witness
that was himself injured in the course of the
occurrence has been extensively discussed
by this Court. Where a witness to the
occurrence has himself been injured in the
incident, the testimony of such a witness is
generally considered to be very reliable, as
he is a witness that comes with a built-in
guarantee of his presence at the scene of
the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate
someone. "Convincing evidence is required
to discredit an injured witness."
288 INDIAN LAW REPORTS ALLAHABAD SERIES

And a similar view in the case of
Jarnail Singh vs. State of Punjab, (2009) 9
SCC 719, has been taken in the Hon'ble
Apex Court with following observations:

"28. Darshan Singh (PW 4) was
an injured witness. He had been examined
by the doctor. His testimony could not be
brushed aside lightly. He had given full
details of the incident as he was present at
the time when the assailants reached the
tubewell. In Shivalingappa Kallayanappa v.
State of Karnataka [1994 Supp (3) SCC 235
: 1994 SCC (Cri) 1694] this Court has held
that the deposition of the injured witness
should be relied upon unless there are
strong grounds for rejection of his evidence
on the basis of major contradictions and
discrepancies, for the reason that his
presence on the scene stands established in
case it is proved that he suffered the injury
during the said incident.

29. In State of U.P. v. Kishan
Chand [(2004) 7 SCC 629 : 2004 SCC
(Cri) 2021] a similar view has been
reiterated observing that the testimony of a
stamped witness has its own relevance and
efficacy. The fact that the witness sustained
injuries
at
the
time
and
place
of
occurrence, lends support to his testimony
that he was present during the occurrence.
In case the injured witness is subjected to
lengthy cross-examination and nothing can
be elicited to discard his testimony, it
should be relied upon (vide Krishan v.
State of Haryana [(2006) 12 SCC 459 :
(2007) 2 SCC (Cri) 214] ). Thus, we are of
the considered opinion that evidence of
Darshan Singh (PW 4) has rightly been
relied upon by the courts below."

In the case of Baleshwar Mahto
vs. State of Bihar, (2017) 2 SCC (crl.26),
the Hon'ble Apex Court relying on the
above case laws held as under:

30. The law on the point can be
summarised to the effect that the testimony
of the injured witness is accorded a special
status in law. This is as a consequence of
the fact that the injury to the witness is an
inbuilt guarantee of his presence at the
scene of the crime and because the witness
will not want to let his actual assailant go
unpunished merely to falsely implicate a
third party for the commission of the
offence. Thus, the deposition of the injured
witness should be relied upon unless there
are strong grounds for rejection of his
evidence
on
the
basis
of
major
contradictions and discrepancies therein."

15. Learned counsel for the appellants
also contended that the incident is of night
and the Investigating Officer (P.W.-5)
Vijay
Kumar
Yadav
in
his
cross
examination has admitted that he has not
shown any bulb outside the Mosque in the
site plan. So the source of light is not
established. It is true that in the site plan
the Investigating Officer has not shown the
place where electric bulb was on but all the
witnesses in their oral evidence has said
that there was electric light in which they
have seen the occurrence. Further the place
of occurrence is in abadi, the accusedpersons
and
the witnesses
are
also
neighbours so the identity of the accused
cannot be doubted and the omission on part
of the Investigating Officer to show the
place of electric bulb in the site plan will
not create any suspicion about the identity
of the accused. The identity of the accused
is fully established.

16. Learned counsel for the appellants
further contended that the FIR is written by
an
Advocate
in
presence
and
with
connivance of local Pradhan who is against
the accused-persons. The FIR is prepared
after due deliberation and consultation,
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
289
there is chance of false implication and
hence no reliance can be placed on it.

FIR is prompt. Informant Furkan
(P.W.-1) while proving it has confirmed
that it was written at his instance by the
scribe. The presence of Pradhan at hospital
is natural and probable being head of the
village. There is no material on record to
suggest that Pradhan is inimical to the
accused. There is also no evidence of any
previous enmity between the parties, so
merely because the scribe is an Advocate, it
cannot be presumed that report has been
manipulated to frame innocent persons.
False
implication
of
accused-persons
sparing the real assailants of such an
incident of double murder is highly
improbable in the circumstances. The
accused have also failed to give any reason
of their false implication.

17. Learned counsel for the appellants
further contended that the FIR and other
papers are ante-time. The Investigating
Officer- Vijay Kumar Yadav (P.W.-5) has
admitted that in Ex.Ka-10 and Ex.Ka-11
unknown is written in column of time of
the incident and time of death, in the
inquest report only crime number and
sections are written and other particulars
are not mentioned. Dr. R.K. Gupta (P.W.-
4) who has conducted the postmortem
examination of the deceased has admitted
that at the time of post-mortem FIR was not
before him. Constable- Harendra Singh
(P.W.-10) who has brought the dead bodies
for post-mortem examination has said that
he handed over the dead bodies to the
doctor on next day at 11:00 am. The
inquest report has been prepared by S.I.
Adarsh Tyagi but his signatures are not
there on the papers. All these clearly
establishes that at the time of inquest
proceedings and even at the time of postmortem, FIR was not registered. It has been
registered later, ante timing it and other
papers prepared are also ante timed.

Learned AGA submitted that
crime
number,
sections
and
other
particulars relating to time etc, duly proper
filled in every column of the inquest report.
So FIR was very much in existence at the
time of inquest proceedings and it is not
ante-timed.
Learned
AGA
further
submitted that merely signature of CO does
not bear any date or FIR has been sent to
the concerned magistrate with some delay,
it cannot be said that FIR is ante-timed. He
placed reliance on Rajesh Singh vs. State
of U.P., (2011) 11 SCC (page-144). The
Hon'ble Apex Court in the aforesaid case in
para no.12, 13 & 14 has made following
observations:

"12. The first such finding by the
trial Court was that the FIR was ante-
timed on the ground that as per the
evidence of Chandra Shekhar Yadav (PW4), the investigating officer, the dead body
of deceased Deepak was dispatched from
the spot after being sealed at 9 p.m. for the
police lines. However, in the record of the
police lines, it was shown to have received
at 10 a.m. on 12.4.1993. The FIR was also
criticized by the trial Court and the defence
counsel here on the ground that there was
no evidence offered by the prosecution to
suggest that the special report of the crime
was sent to the higher authorities.

13. The High Court has found
that this criticism was not justified. The
High Court has given the reasoning that
the FIR was lodged by the witness Virendra
Kumar (PW-1) on 11.4.93 itself at 6.40
p.m. Thus, if the incident happened at
about 5 O'Clock in the evening, the
recording of the FIR at 6.40 p.m. in a
police station which was 8 Kms. away from
290 INDIAN LAW REPORTS ALLAHABAD SERIES
the spot of occurrence could not be said to
be late reporting. The High Court has also
relied upon the evidence of Chandra
Shekhar Yadav (PW-4) that the FIR had
been lodged in the police station when he
was not present there and he was informed
about it only on wireless and, therefore, he
happened to reach the spot directly with
ASI and started the investigation of the
case and was busy there in drawing of
Panchnama etc. right up to 11 p.m. and
merely because the copy of FIR was
received in the office of the circular officer
on 13.4.1993, it should not lead to the
conclusion that the FIR was ante-timed.
The High Court has also found that if the
dead body reached the police lines late at
mid night and if it was shown in the record
that it was received at 10 a.m. on 12.4.93,
there was nothing significantly doubtful.

14. We have also gone through
the record as well as the evidence of the
investigating officer Chandra Shekhar
Yadav (PW-4) and though the timing is
slightly irregular, that alone would not be
sufficient to reach a conclusion that the
FIR was ante-timed. After all nothing was
going to be gained by the prosecution by
ante-timing the FIR. Had the FIR been
ante-timed, the Panchnama could not have
been commenced at 7.30 p.m. We do not
find any significant cross examination of
the Panchas and the police officers,
particularly, on the aspect of timing
thereof. We do not find this circumstance to
be of such a nature so as to throw the
whole prosecution story which was proved
by two eye witnesses, one of them being the
father of the boy."

In inquest report, case crime
number and sections are mentioned and all
other columns of date time is properly
filled. If some particulars are lacking or
there are some omissions on related papers,
only on this basis it cannot be inferred that
at the time of the inquest, FIR was not in
existence.