# Shamshad v. State 116 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 115
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-08
- **Case number:** Jail Appeal No. 2994 of 2010
- **Bench:** Suneet Kumar, Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamshad-v-state-116-indian-law-reports-allahabad-series-48970
- **Pages:** 6

## Headnote

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Section 302 - murder -
The Code of criminal procedure, 1973 -
Section 313 - statement under Section
313 Cr.P.C. cannot form sole basis for
conviction
-
can
be
a
relevant
consideration for courts to examine -
particularly when the prosecution has
otherwise been able to establish the chain
of events - Indian Evidence Act, 1872 -
Section 6 - those facts relevant which
though not in issue - are so connected
with a fact in issue so as to form part of
same transaction - whether they occurred
at the same time and place or at different
times and place. (Para -11,18 )

Accused murdered his pregnant step-mother
along with her three kids - inflicting injuries on
vital parts - with an axe on the night - PW1 and
PW2 gave an eye-witness account of the
incident - informant (father of accused and
husband of deceased and father of rest of
deceased persons) - gave an unimpeachable
evidence - found relevant under Section 6 of the
Indian Evidence Act - An incriminating article
i.e., weapon of offence was recovered - FIR
lodged with requisite promptness - ruling out
any probability of embellishment therein - no
probability of false implication. (Para -3,20 )

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - discovery of facts
includes not only the object found but
more importantly the place from which it
was produced and the knowledge of the
accused as to its existence - held - evidence
led by the prosecution, is not only admissible
and relevant under Section 27 of the Indian
Evidence Act - but also tantamounts to the
evidence of conduct of an accused which too is
relevant. (Para - 16)

HELD:-While evaluating the evidence, it cannot
be held to be unworthy of credit just because
the witnesses were closely related. No infirmity
in the conclusion drawn by the trial Court as to
the culpability of the appellant.(Para -20,21)

Jail appeal dismissed. (E-7)

List of Cases cited:-

## Text

9 All. Shamshad Vs. State
115
proper. The reason for the same is that the
deceased did not die and insistence death had it
been a premeditated murder, the injuries on the
body would have caused her immediate death.

32. One more glaring fact is that from the
record of the medical papers that the deceased
survived for more than ten days. She was
admitted in District Hospital, Ghazipur and
thereafter she developed fissure and later on
during treatment, she breathed her last due to
septicemia. Though we concur with learned
Trial Judge that the death was homicidal death
we are unable to accept the submission of Sri
Vikas Goswami, learned A.G.A.

Punishment:

33. In view of the judgment of the Apex
Court in State of Uttar Pradesh Vs. Subhash @
Pappu ( supra) and Khokan @ Khokhan
Vishwas Vs. State of Chhattisgarh ( supra) will
enure for the benefit for the accused-appellants
as the death occurred after ten days was not a
premeditated.

34. We come to the definite conclusion
that the death was due to septicemia. The
judgments cited by the learned counsel for the
appellant would permit us to uphold our finding
which we conclusively hold that the offence is
not under Section 302 of I.P.C. but is culpable
homicide.

35. The accused are in jail since
17.1.2016. The Apex Court in such cases has
converted the conviction under Section 302 of
I.P.C. to Section 304 Part I of I.P.C. which will
come to the aid of the accused.

36. In view of the aforementioned
discussion, we are of the view that the appeals
have to be partly allowed, hence, appeals are
partly allowed.

37. The conviction of the appellants under
Section 302 of Indian Penal Code read with
Section 326 of Indian Penal Code is converted
to conviction under Section 304 (Part-I) of
Indian Penal Code read with Section 326 of
Indian Penal Code and the appellants are
sentenced to undergo 10 years of incarceration
with fine reduced at Rs.10,000/- for offence u/s
304(Part-I) of IPC and 10 years for offence
under Section 326 with fine of Rs.5,000/- for
default sentence . The accused shall under go
incarceration for six month both serves to run
concurently.

38. Appellants-accused are in jail since
17.1.2016. On completion of 10 years of
incarceration with remission is over for all the
offences and if fine is not deposited, the default
sentence would start after the period of ten
years. The accused- appellants shall be released
on completion of said period, if not required in
any other case. The accused-appellants would
be entitled to all remissions. The judgment and
order impugned in this appeal shall stand
modified accordingly.

39. Let a copy of this judgment along
with the trial court record be sent to the Court
and
Jail
Authorities
concerned
for
compliance.
----------
(2022) 9 ILRA 115
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE MRS. JYOTSNA SHARMA, J.

Jail Appeal No. 2994 of 2010

Shamshad ...Appellant
Versus
State ...Opposite Party
116 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Mithilesh Tiwari, Sri Satyaveer Singh
(A.C.)

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

(A) Criminal Law - Jail Appeal - Indian
Penal Code, 1860 - Section 302 - murder -
The Code of criminal procedure, 1973 -
Section 313 - statement under Section
313 Cr.P.C. cannot form sole basis for
conviction
-
can
be
a
relevant
consideration for courts to examine -
particularly when the prosecution has
otherwise been able to establish the chain
of events - Indian Evidence Act, 1872 -
Section 6 - those facts relevant which
though not in issue - are so connected
with a fact in issue so as to form part of
same transaction - whether they occurred
at the same time and place or at different
times and place. (Para -11,18 )

Accused murdered his pregnant step-mother
along with her three kids - inflicting injuries on
vital parts - with an axe on the night - PW1 and
PW2 gave an eye-witness account of the
incident - informant (father of accused and
husband of deceased and father of rest of
deceased persons) - gave an unimpeachable
evidence - found relevant under Section 6 of the
Indian Evidence Act - An incriminating article
i.e., weapon of offence was recovered - FIR
lodged with requisite promptness - ruling out
any probability of embellishment therein - no
probability of false implication. (Para -3,20 )

(B) Evidence Law - Indian Evidence Act,
1872 - Section 27 - discovery of facts
includes not only the object found but
more importantly the place from which it
was produced and the knowledge of the
accused as to its existence - held - evidence
led by the prosecution, is not only admissible
and relevant under Section 27 of the Indian
Evidence Act - but also tantamounts to the
evidence of conduct of an accused which too is
relevant. (Para - 16)

HELD:-While evaluating the evidence, it cannot
be held to be unworthy of credit just because
the witnesses were closely related. No infirmity
in the conclusion drawn by the trial Court as to
the culpability of the appellant.(Para -20,21)

Jail appeal dismissed. (E-7)

List of Cases cited:-

1. Sukhar Vs St. of U.P. ,(1999) 9 SCC 507

2. Arjun Vs St. of U.P., 2003 (1) A.Cr.R. 329

3. Charan Das Swami Vs St. of Guj., (2017) 7
SCC 177

4. Rafique Ahammad @ Rafi Vs St. of U.P., AIR
2011 Supreme Court 3114

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Satyaveer Singh, learned
Amicus Curiae appearing for the appellant
and Sri Vikas Goswami, learned A.G.A. for
the State.

2. This is an appeal against the
judgment and order dated 13.04.2010
passed by learned Additional District and
Session Judge/F.T.C.-3, Bijnor in Session
Trial No. 638 of 2009 (State vs. Shamshad)
in Case Crime No. 920 of 2009 under
Section 302 IPC, Police Station-Afzalgarh,
District-Bijnor
and
sentenced
to
imprisonment for life and imposed fine of
Rs. 1,00,000/- and further imprisonment of
three years in default thereof.

3. As per the prosecution case, the
lone named accused Shamshad, murdered
his pregnant step-mother alongwith her
three kids i.e., his step siblings by
assaulting them and inflicting injuries on
vital parts with an axe on the night of
26.08.2009 at around 10 pm. The FIR was
lodged by his own father Abdul Rashid, the
same day at 22.45 hours.
9 All. Shamshad Vs. State
117

4. The prosecution examined two eyewitnesses namely, Chhote and Sirajuddin as
PW1 and PW2 respectively, the informant
Abdul Rashid as PW4. The prosecution
also examined PW9-Ishrar in whose
presence the weapon of offence ''kulhari'
was retrieved by the accused himself after
giving
a
disclosure
statement.
The
prosecution in all examined ten witnesses
and furnished the documentary evidence
Exhibit Ka-1 to Exhibit Ka-41.

5. Before proceeding further, it shall
be useful to briefly state the FIR version
which said that the informant-Abdul
Rashid, on returning to his house, found a
crowd of people at his doorstep and was
told by them that his own son Shamshad,
who was in inebriated state assaulted and
inflicted wounds by a ''kulhari' on the neck
of the informant's wife Chhoti, who had
died by then and also inflicted fatal injuries
to his children. His daughters Ruksana and
Farzana, aged about 12 years and 6 years
respectively and 5 years old son Faizan,
were found by him lying in an injured
condition on the cots. All of them, died
before they could avail any medical help in
the hospital. It is also mentioned in the FIR
that the people of the locality saw the
accused Shamshad escaping with ''kulhari'
held in his hands.

6. As per the prosecution version, the
inquest was carried out on 26.08.2009, the
same night from 22:45 onwards and
continued till 6:00 am on 27.08.2009 in the
precincts of the Hospital. The dead bodies
had fatal injuries on their neck, faces and
areas around it. As per the opinion of Dr.
S.R. Soni PW3, the victims died because of
shock and hemorrhage following antemortem injuries. The postmortem on all
four dead bodies was conducted on
27.08.2009 between 1.30 pm to 3.45 pm
and all of them found to have incised
wounds on face, neck, skull and other body
parts.

7. PW1-Chhotte and PW2-Sirajuddin,
the residents of same Village deposed that
Chhotte's sister namely, Chhoti, the victim
was often harassed by his step-son. They
went to her house between 09.40 to 10.00
pm and saw with their own eyes that
Shamshad was assaulting the deceased
persons with an axe inflicting injuries.
When they tried to intervene, he ran
towards them in attacking mode. The
witnesses tried to catch hold of him, but he
escaped towards the jungle and could not
be apprehended.

8. We have gone through the
testimony of PW1 and PW2, in the light of
the submission of the defence that the
above two witnesses are in fact not the eyewitnesses but have been planted by the
prosecution to give credence to its version.
In our view, in the brief cross-examination
done by the defence, nothing has come to
lead us to disbelieve their testimony. We
cannot scrutinise the testimony of witnesses
with an air distrust unless there are some
strong indicators compelling the Court to
draw a different conclusion. If no material
is coming forth to indicate that witnesses
may be lying or may be giving a wrong
evidence for certain ulterior motives or
extraneous reasons, the Court is not
supposed to discard such testimony for
non-existent or imaginary reasons. In our
view, the conclusion drawn by the trial
court is based upon the evidence available
before
it
which
may
be
direct
or
circumstantial and not on conjunctures.

9. PW4-Abdul Rashid, the husband of
deceased Chhoti and father of three
innocent kids, has deposed that when he
118 INDIAN LAW REPORTS ALLAHABAD SERIES
returned to his house, he found a crowd of
people there and they told him that his son
Shamshad escaped holding an axe, soaked
in blood. In his cross-examination, he fairly
admitted that he did not witness the
incident. He did not himself see anybody
fleeing from the scene of crime and that he
lodged the FIR on the basis of things
narrated by the people of the locality
present at the spot at that time. This has
come in a very brief cross-examination
done by the defence.

10. This fact cannot escape attention
of the Court that though his whole family
got killed but he refrained from giving any
exaggerated version. His testimony evokes
confidence of the Court and is, in our view,
one of the most important pieces of
evidence in this case. With regard to his
testimony, the Illustration (a) to Section 6
of the Indian Evidence Act, 1872 is worth
notice, which reads as under:-

"(a) A is accused of the murder of
B by beating him. Whatever was said or
done by A or B or the by-standers at the
beating, or so shortly before or after it as to
form part of the transaction, is a relevant
fact."

11. Section 6 of the Indian Evidence
Act, 1872 makes those facts relevant which
though not in issue, are so connected with a
fact in issue so as to form part of same
transaction, whether they occurred at the
same time and place or at different times
and place.

12. The Hon'ble Supreme Court in
Sukhar vs. State of U.P. (1999) 9 SCC
507, discussed several landmark judgments
and gave an opinion in-line with settled
legal proposition that the statement must be
contemporaneous with the act or must have
been made immediately thereafter. It is the
spontaneity and immediate nature of such
statement which makes them admissible
and reliable. In Arjun vs. State of U.P.;
2003 (1) A.Cr.R. 329, PW2 rushed to the
spot on hearing distress cries and gained
knowledge through others present there
(PW3) that it was the accused appellant
who stabbed the victim. His evidence was
found admissible under Section 6 of the
Indian Evidence Act.

13. The evidence given by PW4
comes within the scope of Section 6 of the
Indian Evidence Act. It is such a piece of
circumstantial evidence which cannot be
ignored. It passes the test of proximity in
time and of spontaneity as held in umpteen
cases by the Hon'ble Courts. The evidence
of PW4 gets intrinsic support from
documentary
evidence
Exhibit
Ka-41
which is a Memo prepared by the Police at
the time of the arrest of the accused. This
paper mentions that at the time of his arrest,
there were blood spots on the clothes worn
by the appellant. It should be noted that the
accused was arrested shortly after the
occurrence on 27.08.2009 at 12.30.

14. PW9-Ishrar has given an evidence
that alongwith the Police personnels, he
went to the place Ghasi Wala Park, Jungle
where the vehicle was stopped and the
accused retrieved a blood stained axe,
hidden inside the bushes at about 1 pm in
the afternoon of 27.08.2009, before him.

15. PW10- S.I. Sri Ram has given a
similar statement and has also proved
Exhibit Ka-40, Memo of recovery and has
stated that the blood stained axe was
recovered from the spot different from the
place of occurrence of crime. The accused
himself retrieved the weapon hidden in
bushes.
9 All. Shamshad Vs. State
119

16. Recovery of an article from a
place hitherto unknown to anybody else
including the investigating officer, is a fact
which underlines the confirmation theory
which is at the heart of provisions of
Section 27 of the Indian Evidence Act. The
discovery of facts includes not only the
object found but more importantly the
place from which it was produced and the
knowledge of the accused as to its
existence. The importance of disclosure
statement and the discovery of fact has
been very well examined in Charan Das
Swami vs. State of Gujrat; (2017) 7 SCC
177. In this case before us, the evidence of
PW9 and PW10 further strengthens the
prosecution case in the light of the above
provisions of law. In our view, the evidence
led by the prosecution on this count, is not
only admissible and relevant under Section
27 of the Indian Evidence Act but also
tantamounts to the evidence of conduct of
an accused which too is relevant.

17. The accused was given an
opportunity as provided under Section 313
Cr.P.C. to enable him to explain his side
and to give explanation, if any, for
testimony
which
came
against
him
implicating him in the crime. However, to
all the questions put by the Court, he
simply gave a bald reply that the evidence
is wrong. He refrained from saying
anything else.

18. The Hon'ble Apex Court in
Rafique Ahammad @ Rafi vs. State of
U.P.; AIR 2011 Supreme Court 3114,
observed that the statement under Section
313 Cr.P.C. cannot form sole basis for
conviction but certainly it can be a relevant
consideration for the courts to examine,
particularly when the prosecution has
otherwise been able to establish the chain
of events.

19. In view of the above, the only
conclusion which can be drawn is that
perhaps he had no plausible explanation to
offer before the Court. Though the fact of
non-explanation cannot replace the burden
of prosecution to prove its case beyond
reasonable doubt, however, where such
burden stands discharged fully the defence
is expected to offer whatever reasonable
explanation it might have. Here there is
none,
which
further
strengthens
the
prosecution case.

20. To sum up the PW1 and PW2
have given the eye-witness account of the
incident. The informant, who happens to be
the father of the accused (and husband of
the deceased-Chhoti and father of rest of
the deceased persons, Ruksana, Farzana
and Faizan) has given an unimpeachable
evidence found relevant under Section 6 of
the Indian Evidence Act. An incriminating
article i.e., weapon of offence was
recovered on the basis of the disclosure
statement given by the accused during
investigation. The FIR has been lodged
with requisite promptness ruling out any
probability of embellishment therein. There
is no material before the Court to indicate
even
remote
probability
of
false
implication. In our view, there is no
infirmity in the conclusion drawn by the
trial Court as to the culpability of the
appellant.

21. There has been a very faint
submission on behalf of the appellant that
PW1 and PW9 are not reliable because they
happen to be closely related to the
informant. In our view, a relationship
howsoever close it may be, cannot by itself
be a ground to discard the testimony unless
there is some material which may have
tendency to corrode the credibility of a
witness. The court has to examine the
120 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence in toto to determine whether it
has, on the whole a ring of truth. While
evaluating the evidence, it cannot be held
to be unworthy of credit just because the
witnesses were closely related.

22. This appeal lacks merits and is
liable to be dismissed and is hereby
dismissed. The judgment of the trial court
is hereby affirmed. The appellant is in jail.
He shall serve out the sentence as awarded
by the trial court.

23. Office is directed to certify this
order to the court concerned forthwith to
ensure compliance and also to send back
the lower court record.
----------
(2022) 9 ILRA 120
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6335 of 2011

Raj Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Arun Kumar Srivastava, Sri K.K. Mishra,
Sri Mahesh Kumar Kuntal, Sri Mohd.
Samiuzzaman Khan, Sri Shailendra Singh

Counsel for the Respondent:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 498 A, 304 B , Section
302 r/w Section 149 - Dowry prohibition
Act,1961 - Section 3 & 4 - The Code of
criminal procedure, 1973 - Section 313
-
opportunity
to
defend
anything
adverse to the accused should be given
to the accused - dowry death - In case of
offence under Section 304B of IPC -
there is reverse burden of proof on the
accused - which is not in the case of
Section 302 of IPC.(Para -17, 21)

Death
of
deceased
occurred
in
her
matrimonial home - before seven years of
marriage - occurrence took place after three
months of marriage of deceased - before two
days of occurrence - deceased told her
parents for demand of plot and harassment
for that - all ingredients of offence under
Section 304B of IPC present - trial court
framed alternative charge under Section 302
r/w 149 of IPC. (Para - 18 )

(B) Evidence Law - Indian Evidence Act,
1872 - Section 113B - Presumption as to
dowry death - Section 106 - Burden of
proving fact especially within knowledge
- "soon before death" - depends upon
facts of each case - proximity live link
between harassment or cruelty and the
death of deceased - when presumption
under Section 113B is drawn - matter
falls within the purview of offence under
Section
304B
of
IPC
because
the
marriage
of
the
deceased
was
solemnized just before three months.
(Para - 19)

HELD:- Judgement and order upturned to the
extent of conviction and sentence of accusedappellant with regard to the offence under
Section 302 r/w Section of 149 IPC . Accusedappellant convicted for the offence under
Section 304B of IPC. Conviction and sentence
under Section 3 and 4 of Dowry Prohibition
Act maintained. (Para -22)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

1. Santosh Vs St. of U.P., 2021 0 Supreme (All)
173

2. Nallapareddi Sridhar Reddy Vs St. of A.P.,
(2020) 12 SCC 467