# State of U.P v. Ishaq & Ors

- **Citation:** (2024) 9 ILRA 1342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-05
- **Case number:** Government Appeal No. 306 of 1993
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-ishaq-ors-52551
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147 & 302/149 - Appeal against
acquittal - Code of Criminal Procedure,
1973 - Sections 161, 162 &, 313 - Indian
Evidence
Act,
1872
-
Section
32
-
Testimonies
of
witnesses
-
P.W.-1,
informant and son of deceased St.d he had
not seen incident himself, St.ment was
based on information provided to him by
his
father
and
witnesses,
who
had
witnessed incident - He did not disclose
names of witnesses, who had informed
him about incident. (Para 47)

P.W.-3, eye-witness declared hostile - Not
clear as to who had seen occurrence in its
entirety
and
on
whose
specific
information, P.W.-1 had dictated written
report to person who was not examined
by prosecution. (Para 48, 49)

In St.ment u/s 161 Cr.P.C. the deceased
before his death has given names of
accused persons in same seriatum in
which they were mentioned in FIR, proved
by P.W.-7. - Such a mechanical similarity
lends
support
to
contention
of
accused/respondents that said St.ment
was not outcome of own volition of
deceased, rather it was Investigating
Officer himself, who had reproduced
names of accused persons from FIR - In
absence of any medical evidence that
deceased was in a position to understand
and give, his St.ment u/s 161 Cr.P.C.
cannot be attached any weightage that
too akin to dying declaration. (Para 51,
52, 53)

Summoning of P.W.-10 by trial court was
according to Section 311, Cr.P.C - If P.W.-
10 had not seen any incident himself then
testimony of P.W.-2 difficult to believe,
who reached place of occurrence on
hearing shouts of P.W.-10 - Appeal lacks
merit, dismissed. (Para 57)
Appeal dismissed. (E-13)

List of Cases cited:

## Text

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1342 INDIAN LAW REPORTS ALLAHABAD SERIES
regards refund of money allegedly paid by the
appellants to Laxmi Devi, but even no such lis
came into existence.

15. In view of above discussion, the
findings recorded by both the courts below on
all disputed aspects involved in the lis, being
pure findings of fact, the same do not require
any
interference
in
second
appellate
jurisdiction under Section 100 of Code of Civil
Procedure.

16. In Kamti Devi (Smt.) and Anr. v.
Poshi Ram (2001) 5 SCC 311, the Supreme
Court came to the conclusion that the finding
reached by the first appellate court cannot be
interfered with in a second appeal as no
substantial question of law would have flowed
out of such a finding. In Thiagarajan v. Sri
Venugopalaswamy B. Koil, (2004) 5 SCC
762, the Supreme Court has held that the High
Court in its jurisdiction under Section 100
C.P.C. is not justified in interfering with the
findings of fact and that it is the obligation of
the courts of law to further clear intendment of
the legislature and not frustrate it by excluding
the same and where findings of fact by the
lower appellate Court are based on evidence,
the High Court in second appeal cannot
substitute its own findings on reappreciation of
evidence merely on the ground that another
view was possible.

17. Similar view has been taken in
Kondiba Dagadu Kadam vs Savitribai Sopan
Gujar and others, (1999) 3 SCC 722 by
observing that disturbance in findings of fact
would be contrary to limitations imposed by
section 100 C.P.C. The Supreme Court again
reminded in Commissioner, Hindu Religious
&
Charitable
Endowments
vs.
P.
Shanmugama (2005) 9 SCC 232 that the High
Court has no jurisdiction in second appeal to
interfere with the findings of fact. The Apex
Court, in State of Kerala v. Mohd. Kunhi
(2005) 10 SCC 139 reiterated the same
principle by observing that by such interference,
the High Court would go beyond the scope of
Section 100 of the Code of Civil Procedure.

18. In Madhavan Nair v. Bhaskar
Pillai (2005) 10 SCC 553, the Supreme Court
observed that even if the first appellate court
commits an error in recording a finding of fact,
that itself will not be a ground for the High
Court to upset the same. In Harjeet Singh v.
Amrik Singh (2005) 12 SCC 270, the Apex
Court, with anguish, observed that the High
Court had no jurisdiction to interfere with the
findings of fact arrived at by the trial Court
and the lower appellate Court regarding
readiness and willingness to perform part of
contract in its jurisdiction under Section 100
C.P.C.

19. The view taken in the aforesaid
decisions has been reiterated by the Apex Court
in Gurdev Kaur and others vs. Kaki and
others, 2007 (1) SCC 546.

20. No substantial question of law
arises for consideration by this Court in both the
second appeals.

21. Both the second appeals fail and
are, accordingly, dismissed.
----------
(2024) 9 ILRA 1342
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.09.2024

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Government Appeal No. 306 of 1993

State of U.P. ...Appellant
Versus
Ishaq & Ors. ...Respondents
9 All. State of U.P. Vs. Ishaq & Ors.
1343
Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondent:
Sri Kr. Shanti Prakash, S. Malik-E-Ashtar Rizvi,
Syed Ahmad Jamal, Syed Fazal Abbas Rizvi

Criminal Law - Indian Penal Code, 1860 -
Sections 147 & 302/149 - Appeal against
acquittal - Code of Criminal Procedure,
1973 - Sections 161, 162 &, 313 - Indian
Evidence
Act,
1872
-
Section
32
-
Testimonies
of
witnesses
-
P.W.-1,
informant and son of deceased St.d he had
not seen incident himself, St.ment was
based on information provided to him by
his
father
and
witnesses,
who
had
witnessed incident - He did not disclose
names of witnesses, who had informed
him about incident. (Para 47)

P.W.-3, eye-witness declared hostile - Not
clear as to who had seen occurrence in its
entirety
and
on
whose
specific
information, P.W.-1 had dictated written
report to person who was not examined
by prosecution. (Para 48, 49)

In St.ment u/s 161 Cr.P.C. the deceased
before his death has given names of
accused persons in same seriatum in
which they were mentioned in FIR, proved
by P.W.-7. - Such a mechanical similarity
lends
support
to
contention
of
accused/respondents that said St.ment
was not outcome of own volition of
deceased, rather it was Investigating
Officer himself, who had reproduced
names of accused persons from FIR - In
absence of any medical evidence that
deceased was in a position to understand
and give, his St.ment u/s 161 Cr.P.C.
cannot be attached any weightage that
too akin to dying declaration. (Para 51,
52, 53)

Summoning of P.W.-10 by trial court was
according to Section 311, Cr.P.C - If P.W.-
10 had not seen any incident himself then
testimony of P.W.-2 difficult to believe,
who reached place of occurrence on
hearing shouts of P.W.-10 - Appeal lacks
merit, dismissed. (Para 57)
Appeal dismissed. (E-13)

List of Cases cited:

1. Narayan Vs St. of UP, 1984, Allahabad Law
Journal 1241

2. Harez Ali Vs St. of Assam, 1981 Criminal Law
Journal 1745

3. Aziz Ahmed Vs St. 1982, Allahabad Law
Journal 140

4. Balak Ram Vs St. of U.P., 1974 Criminal Law
Journal 1486

5. M0anno Raja Vs St. of M.P., 1976 Criminal
Law Journal 1718

6. Dilip Singh Vs St. of Pun., AIR 1979, SC 1173

7. Mohar Singh & ors. Vs St. of Pun., 1981 SCC
(Crl.) 638

8. Darshan Singh & ors. Vs St. of Pun., AIR 1983
SC 554

9. Ramesh & ors. Vs St. of Har. reported in
(2017) 1 SCC 529, (Para 24 and 26)

10. Anwar Ali & anr. Vs St. of H.P. reported in
(2020) 10 SCC 166, [Para 14(1)]

11. Zahira Habibulla H. Sheikh & anr. Vs St. of
Guj. & ors. reported in (2004) 4 SCC 158

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Shri Pawan Kumar Mishra,
learned A.G.A.-I for the State-appellant,
Shri S. Malik-E-Ashtar Rizvi, learned
counsel for the respondent nos.1 and 3 and
perused the material available on record.

2. By means of the present
government appeal, after seeking leave to
appeal under Section 378 (3) of Cr.P.C., the
State has assailed the impugned judgment
and order dated 13.04.1993 passed by IInd
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Barabanki in
Sessions Trial No.120 of 1989 as well as
Sessions Trial No.29 of 1991, under
Sections 147 and 302/149 of the Indian
Penal Code1, Police Station Mawai, District
Barabanki,
whereby
the
accused/
respondents were acquitted of the charges
under Sections 147 and 302/149 I.P.C.

3. From a perusal of record, it
transpires that the instant Government
Appeal was filed against six accusedrespondents, namely, Ishaq, Ishtiaq, Rahan,
Nasiuddin, Saleem and Ishtiaq Khan, out of
which, respondent nos.2, 4, 5 and 6,
namely, Istiaq, Nasiruddin, Saleem and
Ishtiaq Khan, have died. The instant appeal
in respect of respondent nos., 2, 4, 5 and 6
has already been abated. Therefore, the
appeal survives only with regard to the
respondent nos.1 and 3, namely, Ishaq and
Rehan Khan, respectively.

4. The case of the prosecution in
nutshell is that on 13.06.1987 at about 6:45
P.M., the deceased, Mohammad Arif Khan
along with one Aiyoob s/o Latif was
coming back from his tubewell. As soon as
they reached near the dry Naala of Village
Mawai, the accused-respondents, namely,
Ishaq and Ishtiaq, sons of Jannu Nanihar,
Rehan and Ishtiaq Khan, sons of Iqbal
Khan, and Nasiruddin appeared from
behind a bush carrying lathis and dandas in
their hands and, committed murderous
assault on Arif Khan on the exhorting of
the accused-respondent, Saleem. On alarm
being raised by Aiyoob, Khalil Pathan,
Newaz, Phalau and other villagers reached
the place of incident, who saw the
assailants. Arif Khan fell down after
receiving a number of injuries. On being
challenged by the witnesses, the assailants
ran
away
towards
the Eidgah. The
informant, Mohammed Rashid Khan, S/o
Arif Khan also reached the crime scene.
The witnesses and the deceased, Arif Khan
told him about the occurrence. He took Arif
Khan on a cot to the grove of one Imam
Ali, where on the basis of details given by
injured Arif, Rashid Khan dictated the
F.I.R. to his younger brother. The informant
then reached the Police Station Mawai
along with other villagers carrying injured
Arif Khan on a cot and got an first
information report, Ext. Ka-6 lodged on the
basis of written report, Ext. Ka-1.

5. On the basis of the aforesaid
written report, Ext. Ka-1, first information
report as Case Crime No.52 of 1987, under
Sections 147, 323, 307 I.P.C. came to be
registered against the accused-respondents
at
Police
Station
Mawai,
District
Barabanki.

6. P.W.-5, Dr. P. K. Tiwari, the Incharge Medical Officer, Primary Health
Centre, Ramsanehi Ghat, Barabanki had
examined the deceased, Arif Khan at about
10:30 P.M. on 13.06.1987, when Arif Khan
was alive. The following injuries described
by P.W.-5, Dr. P. K. Tiwari were found on
the body of the deceased, Arif Khan :-

1.
Lacerated wound 3.0 cm x 2.0 cm
muscle deep on the left side of
scalp, about 13 cm above the left
ear.
2.
Lacerated wound 2.5 cm x 0.5 cm
on the back of left side of scalp,
about 8 cm below the behind left
ear.
3.
Lacerated wound 2.0 cm x 1.0 cm
on the left side of chin below the
right tip X muscle deep.
4.
Contusion swelling 9.0 cm x 3.0 cm
on the Rt. side of face just below
the right eye.
5.
Contusion 5.0 cm x 3.0 cm on the
9 All. State of U.P. Vs. Ishaq & Ors.
1345
back of left forearm, just behind the
elbow joint.
6. Lacerated wound 2.0 cm x 0.5 cm
muscle deep on the right lower leg
about 7.0 cm above the Rt. ankle
joint.
7. Contusion traumatic swelling on the
right side upper leg 5.0 cm x 3.0
cm, painful and tender advice XRay.

7.
 The
postmortem
of
the
deceased, Arif Khan was conducted by
P.W.-4, Dr. Dinesh Chandra and the report
has been duly proved by him as Ex. Ka-2.

8. According to postmortem report
of the deceased, Arif Khan, Ex. Ka-2, the
cause of the death is reported to be shock
and haemorrhage as a result of ante mortem
injuries and following ante mortem injuries
were reported on the body of the deceased
:-

1.
Abraded contusion 2.5 cm x 2 cm
on Lt. side of head, 6.5 cm above
from Lt. ear.
2.
Stitched wound 3 cm x 1 cm on
left side of forehead, 6 cm above
from upper margin of left eye.
3.
Abrasion 5 cm x 3 cm on Rt. side
of face just below Rt. lateral
margin of Rt. eye.
4.
Abrasion 2.5 cm x 2 cm on Rt. side
of chin.
5.
Multiple linear contusion on back
of chest and abdomen size ranging
from 21 cm x 2.5 cm x 1 cm about.
6.
Abrasion 5 cm x 1 cm on Lt. arm
just above Lt. elbow joint on
lateral aspect.
7.
Abrasion on back of Lt. forearm 6
x 1 cm, 5 cm above Lt, erist.
8.
Abrasion 2 cm x 1 cm on tip of Lt.
ring finger.
9.
Stitched would 2 cm x 0.5 cm on
Rt. lower leg 6 cm above from Rt.
medial Mallcolus.
10. Multiple contusion on back of Rt.
leg size ranging from 6 cm x 2 cm
to 2 x 2 cm in calf region.

9. The Investigating Officer
recorded the statements of witnesses under
Section 161 Cr.P.C. He also visited the
place of occurrence and prepared site plan
as Ext. Ka-10. Upon conclusion of the
investigation, he submitted charge sheets as
Ext. Ka-12 and Ext. Ka-18 against the
accused-respondents.

10. In order to prove its case, the
prosecution has examined ten prosecution
witnesses i.e. P.W.-1, Rashid Khan, P.W.-2,
Khalil Pathan, P.W.-3, Newaz, P.W.-4, Dr.
Dinesh Chandra, P.W.-5, Dr. P. K. Tiwari,
P.W.-6, Santosh Kumar Upadhyay, P.W.-7,
Atar Singh Yadav, P.W.-8, A. K. Bajpai,
P.W.-9, R. P. Saroj and P.W.-10, Mohd.
Aiyoob Khan.

11. The accused-respondents were
charged under Sections 147 and 302/149
I.P.C., who denied the charges and claimed
to be tried.

12. Ram Tirath has been examined
as D.W.-1 from the side of defence.

13. After the conclusion of
prosecution evidence, the statements of
accused-respondents were recorded under
Section 313 Cr.P.C., wherein they have
stated the prosecution story to be false and
concocted and also stated themselves to be
innocent, who have been falsely implicated
in this case.

14. The learned trial Court vide
impugned judgment and order dated
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
13.04.1993 has acquitted the accusedrespondents of all the charges.

15. Aggrieved by the aforesaid
impugned judgment and order whereby the
accused-respondents were acquitted, the
State has sought to leave to appeal as
aforesaid.

16. P.W.-1, Rashid Khan has stated
that about four years ago his father was
returning from the tubewell and when he
reached near the Naala, the accusedrespondents, namely, Salim, Ishaq and
Ishtiaq, sons of Jannu, Rehan and Ishtiyaq
sons of Iqbal and Nasiruddin had assaulted
his father with lathis. On alarm being raised
by Aiyoob and his father, P.W.-2, Khalil
Pathan, Phalau and P.W.-3, Newaz had
reached there and accused-respondents had
run away. P.W.-1, Rashid Khan admitted
that he had not seen the occurrence but was
told about it by the witnesses and his father
when he reached there.

17. P.W.-2, Khalil Pathan has
stated that about four and half years ago at
about 7:00 P.M., he was returning from
Digambarapur and when he reached near
the Naala, he heard shouts. Phalau and
Newaz were also with him, and Aiyoob
was following them. They saw that Arif
Khan was being assaulted by the accusedrespondents. When they challenged the
accused-respondents, they ran away. In the
meantime, P.W.-1, Rashid Khan also
reached there with Arif's other son, namely
Saleem. Arif Khan was taken on a cot to
the grove where Saleem had written the
report on the dictation of Rashid Khan.

18. P.W.-3, Newaz, who is said to
be an eye witness of the occurrence, has
stated that the murder of Arif Khan had not
taken place in his presence. He also stated
that he had seen nothing and was declared
hostile.

19. P.W.-4, Dr. Dinesh Chandra
conducted the autopsy on the body of the
deceased, Arif Khan, at about 3:30 P.M. on
14.06.1987. He prepared the post-mortem
report and proved its genuineness in Court.
The details of the injuries sustained by the
deceased were mentioned in the statement
of P.W.-4, Dr. Chandra, who only stated
that the death of the deceased was caused
due to ante-mortem injuries. The injuries
were described by P.W.-4, Dr. Dinesh
Chandra and also by P.W.-5, Dr. P. K.
Tiwari, the In-charge Medical Officer,
Primary Health Centre, Ramsanehi Ghat,
Barabanki, who had examined Mohammed
Arif Khan at about 10:30 P.M. on
13.06.1987, when Arif Khan was alive.

20. P.W.-5, Dr. P. K. Tiwari also
stated that the deceased died in hospital at
about 10:40 P.M. and he had sent the
information to the Station House Officer,
Police
Station
Ramsanehi
Ghat
immediately thereafter.

21. P.W.-6, Constable, Santosh
Kumar Upadhyay is a formal prosecution
witness. Atar Singh Yadav, Sub Inspector
posted at Police Station Mawai, who had
conducted the investigation and who stated
that after receipt of the F.I.R. at the police
station, he had immediately started the
investigation and recorded the statement of
the deceased, Arif Khan under section 161
Cr.P.C. was examined as P.W.-7. The true
copy of the statement recorded by him is
Ext. Ka-9. He also prepared the site plan of
the place of occurrence and collected
blood-stained and plain soil from the place
of the occurrence. On 22.06.1987, the
investigation was transferred to Station
House Officer, Sri Hari Shankar Singh,
9 All. State of U.P. Vs. Ishaq & Ors.
1347
who submitted the charge sheet against the
accused-respondents, Ishtiyaq S/o Januu,
Ishaaq S/o Januu, Rehan, Nasirudin and
Saleem.

22. P.W.-8, A. K. Bajpai, the then
Station House Officer of Ramsanehi Ghat,
who prepared the Punchnama and P.W.-9,
R. P. Saroj, the then Station House Officer
of Police Station Mawai, who submitted the
charge
sheet
against
the
accusedrespondents, Ishtiaq Khan S/o Iqbal Khan
were all examined as official witnesses.

23. Mohammad Aiyoob Khan,
who was stated to have accompanied the
deceased, Arif Khan at the time of
occurrence was examined under section
311 of the Cr.P.C. as P.W.-10. He stated that
on the day of the occurrence, he had gone
to Mawai and was returning at about 7:30
P.M., and on the way, there was a tubewell
of Arif Khan, where he had seen Arif Khan
and then proceeded towards his village.
When he had crossed the Naala, he heard
some shouts on his backside and returned
to the Naala. It was around 8:30 P.M. at the
time. He found Arif lying in the Naala in an
injured condition and unconscious. He did
not see anybody either hitting Arif Khan or
present on the spot. He went to the village
and informed P.W.-1, Rashid Khan and
returned along with P.W.-1, Rashid Khan
and other persons of the village to where
Arif Khan was lying unconscious. Arif
Khan was taken to the police station and
PW 10 then went back to his house.

24. Ram Tirath Pradhan of village
Mawai was examined as D.W.-1. D.W.-1
has stated that in the year 1987, the
accused-respondent, Ishaaq was the Block
Pramukh of Mawai. On 13.06.1987, he had
gone to the Block, at about 5:00 P.M., but
was informed that the Block Pramukh had
gone to Lucknow. He went to the old
market and by that time the Block Pramukh
had arrived at about 6:00 P.M. He along
with the Block Pramukh and other persons
sat on a cot in the Islamia school and
discussed up to 8:30 P.M. At 8:30 P.M.,
Rashid Khan came shouting and told that
his father had been killed by somebody.

25. It has been argued by the
learned A.G.A., Shri Pawan Kumar Mishra
that trial court has committed manifest and
patent
illegality
in
summoning
and
examining
as
a
witness
P.W.-10,
Mohammed Aiyoob Khan under section
311 of the Cr.P.C., in spite of the fact that
the said witness was already discharged by
the prosecution and it was mentioned in the
discharge application dated 05.08.1992 that
the said witness, Mohammad Aiyoob Khan
had turned hostile to the prosecution, and
that is why his discharge was necessary.
The accused persons had not raised any
objections
against
the
discharge
of
Mohammad Aiyoob Khan as a witness, but
due to reasons best known to the trial court,
the said witness was summoned all of a
sudden
after
fixation
of
date
for
announcement of judgement and also after
adjournment of the case once for the
purpose
of
delivery
of
judgement.
Mohammad Aiyoob Khan damaged the
whole prosecution case after submission of
evidence of the prosecution.

26. Also, the trial court failed to
consider the evidence of witness P.W.-2,
Khalil Pathan, who proved the whole
prosecution case. The trial court failed to
appreciate that Arif Khan was carried to the
police station on a cot and he was present
during lodging of the F.I.R. by the
informant and his statement under section
161 Cr.P.C. was recorded in the presence of
witnesses i.e. P.W.-1, Rashid Khan and
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W.-2, Khalil Pathan. Such statement was
in fact, a dying declaration as Arif Khan
died soon thereafter. On the basis of said
dying declaration and the deposition of two
prosecution witnesses, the finding of guilt
and consequent conviction alone was
possible and the trial court committed a
patent error in not accepting the evidence
already on record and believing the
evidence of two hostile witnesses i.e. P.W.-
3 Newaz, and P.W.-10, Aiyoob Khan.

27. It has also been argued that the
trial
court
seriously
prejudiced
the
prosecution
case
by
summoning
Mohammad Aiyoob Khan as court witness
under section 311 Cr.P.C. suo Moto as no
application on behalf of the prosecution
was filed. The trial court compelled the
prosecution to examine the said witness as
P.W.-10.

28. Per contra, learned counsel for
the surviving accused-respondents has
vehemently submitted that the appellate
court possesses power to re-appreciate the
evidence available on record while dealing
with an appeal against acquittal. However,
such
power
of
appellate
court
is
circumscribed by the fact that while reappreciating evidence available on record,
the appellate court is expected to bear in
mind that the presumption of innocence
gets strengthened by the judgment of
acquittal recorded in favour of the accusedrespondents.

29. His further submission is that
the prosecution has miserably failed to
establish its case beyond reasonable doubt
against the surviving accused-respondents.
The trial Court has rightly disbelieved the
testimonies of witnesses of facts, namely,
P.W.-1, Rashid Khan, P.W.-2, Khalil Pathan
and P.W.-3, Newaz and P.W.-10, Aiyoob
Khan.

30. His next submission is that the
impugned judgment and order dated
13.04.1993 is well discussed and reasoned
which is based on proper appreciation of
evidence available on record which cannot
be said to be perverse. Therefore, no
interference with the same is warranted in
exercise of power of this Court under
Section 386 Cr.P.C.

31. His further submission is that
after
careful
analysis
of
prosecution
evidence, the trial Court has recorded the
finding of acquittal of accused-respondents
which is the only possible view which
could be formed on the basis of evidence
available on record. Therefore also, no
interference with the impugned judgment
and order dated 13.04.1993 is warranted by
this Court.

32. We have gone through the
judgement and order under appeal and
carefully examined the record of the case,
including statement of the deceased, Ext.
Ka-9 and also the F.I.R., Ext. Ka-6 and
matched the same with written report by
P.W.-1, Ext. Ka-1. We have also examined
carefully the post-mortem report, Ext. Ka-2
and the injury report, Ext. Ka-4.

33. A careful perusal of impugned
judgment and order dated 13.04.1993
reveals
that
the
trial
court
after
summarizing
the
evidence
of
the
prosecution witnesses and the defence
witnesses and the accused examined the
report of the occurrence, Ext. Ka-1 which
was submitted by P.W.-1, Rashid Khan, S/o
the deceased, Arif Khan. The trial judge has
noted that P.W.-1 had stated that he had not
seen the occurrence, but he was told by
9 All. State of U.P. Vs. Ishaq & Ors.
1349
other villagers and when he reached there,
the assailants had already run away. The
report that was submitted by him in the
police station was on the basis of details
given to him by his father and other
witnesses. It was not stated by P.W.-1 that
which part of the occurrence as mentioned
in the report, and the F.I.R. had been told to
him by his father, and which part was told
by the witnesses. Unless there was a
specific description by P.W.-1, as to what
was told to him by his father, the written
report of Rashid Khan could not be treated
to be a dying declaration. Moreover, Ext.
Ka-1 did not mention anywhere that P.W.-1
was told about the occurrence by Arif
Khan, the deceased.

34. The trial court noted the
judgement
cited
by
the
prosecution,
namely, 1. Narayan versus state of UP,
1984, Allahabad law journal 1241 ; 2.
Harez Ali versus state of Assam, 1981
criminal law journal 1745 ; 3. Aziz
Ahmed versus state 1982, Allahabad
Law journal 140 and has observed that in
all these cases, it has been held that where,
after making the statement before the
police, the victim succumbed to his
injuries, his statement could be treated as a
dying declaration and was admissible under
section 32 (1) of the Indian Evidence Act
and would be protected by section 162 (2)
of the Cr.P.C. and accepted the legal
position that a statement recorded under
section 161 of the Cr.P.C. can be read as a
dying declaration if the maker of the
statement dies soon afterwards, but looking
into the facts and circumstances of the case,
the trial judge was doubtful if any such
statement as had been proved to be Ext.
Ka-9 was recorded by the Investigating
Officer, Atar Singh Yadav. When the
statement itself was doubtful, it could not
be relied upon to convict the accused
persons.

35. The trial judge has also noted
the judgements of the Supreme Court in
Balak Ram Vs. State of UP, 1974
Criminal Law Journal 1486; Manno
Raja Vs. state of M.P., 1976 Criminal
Law Journal 1718; Dilip Singh Vs. State
of Punjab, AIR 1979, SC 1173; Mohar
Singh and others Vs. State of Punjab,
1981 SCC (Crl.) 638 and Darshan Singh
and Others Vs. State of Punjab, AIR
1983 SC 554 and noted that in all such
cases, the Supreme Court had observed that
the
investigating
officers
are
keenly
interested in fruition of their case and
although no assumption can be made
against their veracity, it is not prudent to
base the conviction on a dying declaration
made to an Investigating Officer. It was
observed that if an Investigating Officer
thought that the victim was in a precarious
condition, he ought to have requisitioned
the services of a Magistrate for recording
the dying declaration or tried to get a
certificate
from
the
Medical
Officer
treating the patient that he was in a fit
condition to make such a statement once
such procedure is not followed, it is better
to leave such a dying declaration out of
consideration
until
and
unless
the
prosecution satisfies the court as to why it
was not recorded by a Magistrate or by a
doctor. The practice of the Investigating
Officer
himself
recording
a
dying
declaration
during
the
course
of
investigation is not to be encouraged. It is
not that such dying declarations are always
untrustworthy, but better and more reliable
methods of recording dying declaration of
an injured person should be taken recourse
to and the one recorded by the police
officer may be relied upon if there was no
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
time or facility available to the prosecution
for adopting any better method.

36. The trial court noted the
observations made by the Supreme Court
that a very detailed and coherent dying
declaration recorded by the investigating
officer without attestation of the same by
the witnesses present should not be
ordinarily relied upon. When it is said that
a
conviction
can
rest
on
a
dying
declaration, it is implied that it must inspire
confidence so as to make it safe to act upon
it. Hence, when from the medical evidence
on record, it was found that the vital organs
of the deceased were completely smashed,
he could not be said to be in a fit state of
mind and body to make any kind of
coherent or credible statement relating to
the circumstances which resulted in his
death. Therefore, his dying declaration
could not be relied upon for any purpose
and had to be excluded from consideration.

37. The learned trial court
thereafter has quoted section 32 of the
Indian Evidence Act and also section 162
of the Cr.P.C. and the Exception carved out
regarding any statement falling within the
provisions of clause (1) of section 32 of the
Indian Evidence Act. A statement recorded
under section 161 of the Cr.P.C. can be read
in evidence under section 162 (2) of the
Cr.P.C. if it falls within the provisions of
clause (1) of section 32 of the Indian
Evidence Act. The trial judge examined the
statement of the deceased recorded under
section 161 Cr.P.C. marked as Ext. Ka-9,
and noted that it mentioned serially the
names of the accused, which serial numbers
matched with the serial numbers of the
accused as given in the FIR.

38. It also noted that the statement
under section 161 Cr.P.C. was recorded by
Atar Singh Yadav, the Investigating Officer,
purportedly at the police station in the
presence of P.W.-1, Rashid Khan, P.W.-2,
Khalil Pathan, and also several other villagers,
at a time when the deceased was seriously
injured and in an extremely precarious
condition. The statement was a detailed and
coherent narration of the occurrence running
into two pages. The Sub Inspector, however,
did not take care to follow the provisions of
para 115 of the Police Regulations and did not
try to get such statement recorded by learned
Magistrate. He also did not try to get a
certificate from a Medical Officer regarding
the fitness of the injured to get his statement
recorded. The Investigating Officer did not
also get the thumb impression of the deceased
or of any other witnesses present at the police
station at the time of recording of such
statement under section 161 Cr.P.C., knowing
fully well that the condition of the deceased
was precarious/very serious as mentioned at
the very beginning of such statement by the
Investigating Officer in his own handwriting.
The Investigating Officer in such alleged
statement under section 161 Cr.P.C. has
mentioned the names of the accused in exactly
the same order, at the same serial numbers as
mentioned in the FIR. Not only the procedural
niceties were not followed by the investigating
officer while recording such statement under
section 161 Cr.P.C., the trial court has also
noted that the medical condition of the injured,
Arif Khan was not such as would allow him to
make such a detailed and coherent statement
under section 161 Cr.P.C.. The trial court has
noted that injury report showed at least two
very serious injuries on the back of the head of
the deceased and several other injuries on his
body. The temporal bone was fractured. The
membranes of the brain were congested.

39. It was also noted that when the
deceased was brought on a cot to the Police
Station Mawai at about 7:30 P.M. and his
9 All. State of U.P. Vs. Ishaq & Ors.
1351
statement recorded soon thereafter, he was
referred to the Primary Health Centre at
Ramsanehi Ghat, Barabanki, where the
doctor on duty, P.W.-5, Dr P. K. Tiwari has
recorded that the patient was brought at
10:30 P.M. and he died at about 10:45 P.M.
The trial judge noted that the deceased died
within three hours of being injured. His
medical condition was precarious. His
speech, would not have been so clear as has
been mentioned by the sub inspector Attar
Singh in Ext. Ka-9.

40. The trial judge has noted the
observations made by Dr R. M. Jhala in his
book on Medical Jurisprudence, (Fourth
Edition at page 200 ) that speech is affected
or lost after injury to the wind pipe, larynx
or to the brain in the area covering speech.
In case of injuries to the heart, the size and
direction of the injuries entering the heart
prove helpful in arriving at a conclusion.
The injury report, Ext. Ka-4 showed that
the deceased had sustained injuries on his
head, besides other parts of his body. His
temporal bone had been fractured, his brain
membranes
were
congested
with
haematoma on the left temporal region and
observed that the brain of the deceased was
congested and he had two wounds on the
head and his temporal bone was fractured,
and
in
these
circumstances,
it
was
impossible to give a long detailed and
coherent statement as has been recorded by
the Investigating Officer. The trial judge,
found that the deceased was not in a fit
condition to make any statement.

41. The trial judge noted that the
Investigating Officer, Atar Singh Yadav
may have copied the F.I.R. in the Case
Diary as a statement under section 161 of
the Cr.P.C. He has further observed that he
was fortified in such a conclusion by
careful examination of the statements of the
prosecution
witnesses.
The
ocular
testimony on record of P.W.-1, Rashid
Khan, the son of the deceased stated that
P.W.-10, Aiyoob Khan was accompanying
the deceased when the occurrence had
taken place. It was P.W.-10, Aiyoob Khan,
who had shouted out/raised an alarm and
on hearing him, P.W.-2, Khalil Pathan and
P.W.-3, Newaz had reached the spot. On the
other hand, P.W.-10, Aiyoob Khan had
stated that he was not accompanying the
deceased but was going alone to his village
and when he had crossed the Naala, he had
heard some noises and had turned back and
when he reached the place of the
occurrence,
Arif
Khan
was
lying
unconscious in an injured condition. No
one else was present there. He was the first
person to have reached the place of
occurrence. If Aiyoob Khan did not see the
assailants, there was no question of any
other witness seeing the occurrence. P.W.-3,
Newaz had also stated that he did not see
the assailants injuring Arif Khan and he had
reached there only once an alarm was
raised by Aiyoob Khan. P.W.-2, Khalil
Pathan had also stated that he had reached
the place of occurrence on hearing the
shouts of Aiyoob Khan. P.W.-10, Aiyoob
Khan, having already mentioned in his
statement that he had not seen the assailants
and also that he did not see anyone injuring
the deceased, there was a reasonable doubt
regarding the correctness of the statements
of P.W.-2 and P.W.-3 alleged witnesses.
P.W.-2 had also stated that there was a
heavy growth of Sarpat and Moonj, (high
wild grasses) almost in the form of a jungle
near the Naala. The trial judge therefore did
not believe the ocular testimony of P.W.-2
and P.W.-3. P.W.-1 had admitted that he had
reached the place only after sometime that
is after Mohammad Aiyoob Khan, Khalil
Pathan, Newaz and Phalau , had already
reached the place of occurrence.
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
42. The trial court also noted that in
his statement under Section 313 Cr.P.C. the
accused-respondent, Ishtiyaq khan had
stated that he was the Block Pramukh of
Mawai Block, and one Marhoob Ahmad
was the M.L.A. of the same area and the
case had been fabricated against him at the
instance of Marhoob Ahmad out of political
enmity. Tariq Khan, the real nephew of
Marhoob Ahmad had contested the election
of Block Pramukh against Ishtiaq Khan, but
Ishtiaq Khan had won the same. One Shifat
Ahmad Khan, who is an advocate and also
nephew of Marhoob Ahmad Khan was also
found to have accompanied Mohammed
Rashid Khan to the police station. P.W.-1
and P.W.-2 had not mentioned the names of
Tariq Khan and Shifat Ahmad Khan
amongst the villagers who accompanied
them to the police station, but the General
Diary of the police spoke otherwise
showing that both Shifat Ahmad Khan and
Tariq Khan nephews of Marhoob Ahmad
Khan had accompanied Rashid Khan to the
police station when he went there to lodge
the report. It was evident that P.W.-1,
Rashid Khan and P.W.2, Khalil Pathan had
intentionally spoken lies and suppressed the
fact that both nephews of Marhoob Ahmad
Khan MLA, had also gone to the police
station with them to lodge the report. The
possibility of the case having been framed,
against the accused, under the influence of
Marhoob Ahmad Khan could not be ruled
out.

43.
Before
we
undertake
appreciation of prosecution evidence as
discussed above in the light of submissions
advanced by learned counsel for the parties,
we deem it appropriate to refer to
judgments rendered by Hon'ble Supreme
Court in Ramesh and others vs. State of
Haryana reported in (2017) 1 SCC 529
and Anwar Ali and another vs. State of
Himachal Pradesh reported in (2020) 10
SCC 166 pertaining to appreciation of
evidence in an appeal against an acquittal.

44. The Hon'ble Supreme Court in
Ramesh
and
others
(Supra),
in
paragraphs 24 and 26, has held as under:-

"24.
We
have
duly
appreciated
the
submissions
advanced by the counsel for the
parties on both sides. No doubt, the
High Court was dealing with the
appeal against the judgment of the
trial court which had acquitted the
appellants herein. The scope of
interference in an appeal against
acquittal is undoubtedly narrower
than the scope of appeal against
conviction. Section 378 of the Code
of
Criminal
Procedure,
1973
confers upon the State a right to
prefer an appeal to the High Court
against the order of acquittal. At
the same time, sub-section (3)
thereof mandates that such an
appeal is not to be entertained
except with the leave of the High
Court. Thus, before an appeal is
entertained on merits, leave of the
High Court is to be obtained
which
means
that
normally
judgment of acquittal of the trial
court is attached a definite value
which is not to be ignored by the
High Court. In other words,
presumption
of
innocence
in
favour of an accused gets further
fortified or reinforced by an order
of acquittal. At the same time,
while
exercising
its
appellate
power,
the
High
Court
is
empowered to reappreciate, review
and reconsider the evidence before
it. However, this exercise is to be
9 All. State of U.P. Vs. Ishaq & Ors.
1353
undertaken in order to come to an
independent
conclusion
and
unless there are substantial and
compelling reasons or very strong
reasons to differ from the findings
of acquittal recorded by the trial
court, the High Court, as an
appellate court in an appeal
against
the
acquittal,
is
not
supposed to substitute its findings
in case the findings recorded by
the
trial
court
are
equally
plausible.
26. This legal position is
reiterated in Govindaraju v. State
[Govindaraju v. State, (2012) 4
SCC 722 : (2012) 2 SCC (Cri) 533]
and
the
following
passage
therefrom needs to be extracted:
(SCC p. 732, paras 12-13)
"12.
The
legislature in its wisdom,
unlike an appeal by an
accused in the case of
conviction, introduced the
concept of leave to appeal
in terms of Section 378
CrPC. This is an indication
that appeal from acquittal
is placed on a somewhat
different footing than a
normal appeal. But once
leave is granted, then there
is hardly any difference
between a normal appeal
and an appeal against
acquittal. The concept of
leave
to
appeal
under
Section 378 CrPC has been
introduced as an additional
stage between the order of
acquittal and consideration
of the judgment by the
appellate court on merits
as in the case of a regular
appeal. Sub-section (3) of
Section
378
clearly
provides that no appeal to
the High Court under subsection (1) or (2) shall be
entertained except with the
leave of the High Court.
This legislative intent of
attaching a definite value
to the judgment of acquittal
cannot be ignored by the
courts.
13.
Under
the
scheme of CrPC, acquittal
confers
rights
on
an
accused that of a free
citizen. A benefit that has
accrued to an accused by
the judgment of acquittal
can be taken away and he
can
be
convicted
on
appeal,
only
when
the
judgment of the trial court
is perverse on facts or law.
Upon examination of the
evidence
before
it,
the
appellate court should be
fully convinced that the
findings returned by the
trial
court
are
really
erroneous and contrary to
the settled principles of
criminal law.""
(Emphasis supplied
by us)

45. The Hon'ble Supreme Court in
Anwar Ali (Supra), in paragraphs 14(1),
has held as under:-

"14.1. In Babu [Babu v.
State of Kerala, (2010) 9 SCC 189 :
(2010) 3 SCC (Cri) 1179] , this
Court had reiterated the principles
to be followed in an appeal against
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal under Section 378 CrPC.
In paras 12 to 19, it is observed
and held as under : (SCC pp. 19699)
"12. This Court time and
again has laid down the guidelines
for the High Court to interfere with
the judgment and order of acquittal
passed by the trial court. The
appellate
court
should
not
ordinarily set aside a judgment of
acquittal in a case where two views
are possible, though the view of the
appellate court may be the more
probable one. While dealing with a
judgment of acquittal, the appellate
court has to consider the entire
evidence on record, so as to arrive
at a finding as to whether the views
of the trial court were perverse or
otherwise
unsustainable.
The
appellate court is entitled to
consider whether in arriving at a
finding of fact, the trial court had
failed to take into consideration
admissible evidence and/or had
taken
into
consideration
the
evidence
brought
on
record
contrary to law. Similarly, wrong
placing of burden of proof may also
be a subject-matter of scrutiny by
the appellate court. (Vide Balak
Ram v. State of U.P. [Balak Ram v.
State of U.P., (1975) 3 SCC 219 :
1974 SCC (Cri) 837] , Shambhoo
Missir v.