# State of U.P v. Laeek

- **Citation:** (2022) 10 ILRA 929
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-19
- **Case number:** Capital Case No. 2 of 2021
- **Bench:** Ramesh Sinha, Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-laeek-47894
- **Pages:** 25

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section
3-
Non-examination
of
independent witnesses-It is well known
fact that when such a heinous occurrence
takes place where two appellants caused
death of three persons at 05.00 p.m.,
people were shutting their shops and
hiding themselves behind their doors and
crowd was terrorized, then there is least
chance that the independent witness will
dare to depose about the incident in the
court. The evidence of witnesses cannot
be discarded only because they are in any
way related to the deceased if they are
reliable
and
inspire
confidence
of
truthfulness. Moreover, the witness no. 2,
is an injured witness in the case, who
tried to save her sons from assault of the
accused
and
in
turn,
she
sustained
injuries. Thus, there is no reason to
discard
the
evidence
of
prosecution
witnesses just because they are related
witnesses to the extent that they have
inspired confidence.

Where the offence has been committed in a
gruesome and heinous manner then there is no
likelihood of any independent witnesses coming
forward to depose out of fear and the testimony
of
related/
injured
witnesses
cannot
be
discarded merely because of their relation with
the deceased so long as their testimony is
truthful, credible and inspires the confidence of
the court.

Indian Evidence Act, 1872 - Section 3 - It
is clear that the Investigating Officer did
not depose in court to support prosecution
930 INDIAN LAW REPORTS ALLAHABAD SERIES
case. However, learned counsel for the
convict-appellants could not explain as to
what damage was caused to the credibility
and reliability in prosecution case, if
Investigating Officer has not deposed in
the court. The case is based on ocular
evidence. The injured witness appeared in
witness
box
and
proved
the
case,
therefore,
merely
absence
of
the
Investigating
Officer
does
not
affect
adversely of the complete prosecution
case.

The case of the prosecution will not be
adversely
affected
merely
because
the
investigating officer did not testify during the
trial as the case is based on ocular evidence and
the defence has failed to show as to what
prejudice was caused to it by the non
examination of the investigating officer.

Indian Penal Code, 1860- Section 34-
Common Intention- It is not necessary for
constituting common intention that there
must
be
meeting
of
minds
or
preponderance for commission of the
crime days before. It is sufficient, if at the
spur of moment, the meeting of minds
arrived at besides, Mohd. Umar actively
participated in the commission of crime.
Therefore, it cannot be said that the
ingredients for invoking section 34 I.P.C.
are missing.

Common intention can be formed even at the
spur of the moment and can be inferred from
the act done by the accused during the course
of commission of the offence.

Code of Criminal Procedure, 1973- Section
313- It is a settled principle of law that
the statement of an accused under section
313 Cr.P.C. can be used as evid

## Text

_Characters 0–39,948 of 85,066. This is a partial read: ask again with offset=39948 for what follows._

10 All. State of U.P. Vs. Laeek
929
evidence
supporting
ocular
versions,
arguments advanced by learned counsel for
the parties. We have been taken through the
record. We are unable to accept the
submissions of the State counsel for the
following reasons and the judgments of the
Apex Court which lay down the criteria for
consideration of appeals against acquittal.
The chain has been found to be incomplete.
While going through the judgment it is very
clear that the court below has given a
categorical finding that the evidence is so
scanty that the accused cannot punished or
convicted for the offences for which they
are charged. The factual scenario in the
present case will not permit us to take a
different view than that taken by the court
below. In that view of the matter we are
unable to satisfy ourselves. Thus we concur
with the findings of the court below.

22. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on
record and on the contours laid down by
the judgment of the Apex Court, we have
no other option but to concur with the
reasoning of acquittal recorded by the
learned Sessions Judge for the aforesaid
reasons.

23. The Government Appeal sans
merits and is dismissed. The record and
proceedings be sent back to the Court
below.
----------

(2022) 10 ILRA 929
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. RENU AGARWAL, J.
Capital Case No. 2 of 2021
connected with Crl. Appeal No. 704 of 2021 and
Jail Appeal No. 592 of 2021

State of U.P. ...Appellant
Versus
Laeek ...Respondent

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

Criminal Law- Indian Evidence Act, 1872-
Section
3-
Non-examination
of
independent witnesses-It is well known
fact that when such a heinous occurrence
takes place where two appellants caused
death of three persons at 05.00 p.m.,
people were shutting their shops and
hiding themselves behind their doors and
crowd was terrorized, then there is least
chance that the independent witness will
dare to depose about the incident in the
court. The evidence of witnesses cannot
be discarded only because they are in any
way related to the deceased if they are
reliable
and
inspire
confidence
of
truthfulness. Moreover, the witness no. 2,
is an injured witness in the case, who
tried to save her sons from assault of the
accused
and
in
turn,
she
sustained
injuries. Thus, there is no reason to
discard
the
evidence
of
prosecution
witnesses just because they are related
witnesses to the extent that they have
inspired confidence.

Where the offence has been committed in a
gruesome and heinous manner then there is no
likelihood of any independent witnesses coming
forward to depose out of fear and the testimony
of
related/
injured
witnesses
cannot
be
discarded merely because of their relation with
the deceased so long as their testimony is
truthful, credible and inspires the confidence of
the court.

Indian Evidence Act, 1872 - Section 3 - It
is clear that the Investigating Officer did
not depose in court to support prosecution
930 INDIAN LAW REPORTS ALLAHABAD SERIES
case. However, learned counsel for the
convict-appellants could not explain as to
what damage was caused to the credibility
and reliability in prosecution case, if
Investigating Officer has not deposed in
the court. The case is based on ocular
evidence. The injured witness appeared in
witness
box
and
proved
the
case,
therefore,
merely
absence
of
the
Investigating
Officer
does
not
affect
adversely of the complete prosecution
case.

The case of the prosecution will not be
adversely
affected
merely
because
the
investigating officer did not testify during the
trial as the case is based on ocular evidence and
the defence has failed to show as to what
prejudice was caused to it by the non
examination of the investigating officer.

Indian Penal Code, 1860- Section 34-
Common Intention- It is not necessary for
constituting common intention that there
must
be
meeting
of
minds
or
preponderance for commission of the
crime days before. It is sufficient, if at the
spur of moment, the meeting of minds
arrived at besides, Mohd. Umar actively
participated in the commission of crime.
Therefore, it cannot be said that the
ingredients for invoking section 34 I.P.C.
are missing.

Common intention can be formed even at the
spur of the moment and can be inferred from
the act done by the accused during the course
of commission of the offence.

Code of Criminal Procedure, 1973- Section
313- It is a settled principle of law that
the statement of an accused under section
313 Cr.P.C. can be used as evidence
against the accused, in so far as it
supports the case of the prosecution.
Equally true is that the statement under
section 313 Cr.P.C. simplicitor normally
cannot be made the basis for conviction of
the accused. But where the statement of
the accused under section 313 Cr.P.C. is in
line with the case of the prosecution, then
certainly the heavy onus of proof on the
prosecution is, to some extent, reducedThe reliance on the statements of the
convict-appellants
under
section
313
Cr.P.C. by trial court is in consonance with
the provisions of law.

Where the statement of the accused, under
Section 313 of the Cr.P.C , supports the case of
the prosecution then not only can the said
statement be used against the accused, but also
the same reduces the burden of proof upon the
prosecution.

Quantum of Punishment- Proportionate
punishment-Capital
punishment-
Aggravating
and
Mitigating
Factors-
Capital punishment has been the subjectmatter
of
great
social
and
judicial
discussion and catechism. From whatever
point
of
view it is examined, one
undisputed statement of law follows that
it is neither possible nor prudent to state
any universal formula which apply to all
the cases of criminology where capital
punishment has been prescribed. Thus,
the Court must examine each case on its
own facts, in the light of enunciated
principles and before option for death
penalty,
the
circumstances
of
the
offender are also required to be taken
into
consideration
along
with
the
circumstances of the crime for the reason
that life imprisonment is the rule and
death sentence is an exception.There is
no evidence to the effect that the
convict-appellant,
Laeek
committed
crime
with
pre-planning
or
preponderance. The occurrence happened
suddenly when the hot exchanges arose
due to urination in the lane of the
complainant while Aamina was preparing
for Wazu. The convict-appellant had no
motive or intention to kill anybody at the
time of occurrence. However, once he
started stabbing, he continued to stab till
the death of three persons caused at the
spot and one person while he was being
carried to the hospital and one person
was badly injured. He himself admitted
during his statement under section 313
Cr.P.C. that he lost control over himselfThe circumstances of the crime and
criminal do not go to show that instant
matter falls into the category of rarest of
10 All. State of U.P. Vs. Laeek
931
rare case or that the sentence of life
imprisonment awarded to the convictappellant-Laeek is unquestionably foreclosed-life imprisonment is a rule and the
death penalty is an exception only when
the
life
imprisonment
would
be
inadequate in proportion to the crime
committed and the death penalty is
imposed
only
when
alternative
life
imprisonment is totally inadequate. The
instant case does not fall in the category
of rarest of rare cases, where life
imprisonment would suffice to the ends
of justice.

Settled law that life imprisonment is the
rule and death penalty is the exception
hence, every case has to be considered on
its
own
facts
and
circumstances
for
determining the quantum of punishment
and even where the offence committed is
heinous and has shocked the collective
conscience
of
the
society
but
the
circumstances of the accused are also
relevant for awarding the punishment.
Accordingly, death sentence commuted to
imprisonment for life.

Criminal Appeal partly allowed. (E-3)

Judgements/Case law relied upon:-

1. Kartik Malhar Vs St. of Bihar (1996) 1 SCC
614

2. of Mohd. Rojali Vs St. of Assam: (2019) 19
SCC 567

3. Darya Singh & ors. Vs St. of Pun., [(1964) 3
SCR 397 : AIR 1965 SC 328 : (1965) 1 Cri LJ
350]

4. Namdeo Vs St. of Mah., [(2007) 14 SCC 150 :
(2009) 1 SCC (Cri) 773]

5. St. of U.P. Vs Anil Singh reported at (1998)
supp SCC 686:

6. (1983) 3 SCC,217, Bharwada Bhoginbhai
Hirjibhai Vs St. of Guj.

7. Bachan Singh Vs St. of Pun. reported in AIR
1980 SC 898
8. Ramnaresh & ors. Vs St. of Chhattisgarh
reported in (2012) 4 SCC 257

9. Dharam Deo Yadav Vs St. of U.P. reported in
(2014) 5 SCC 509

(Delivered by Hon'ble Hon'ble Mrs. Renu
Agarwal, J.)

1. Capital Sentence No. 02 of 2021,
arises out of the reference made by the
learned trial court under section 366(1) of
Code of Criminal Procedure, 1973 to this
court for confirmation of death sentence of
convict-appellant, Laeek.

2. Jail Appeal No. 592 of 2021 under
section 383 Cr.P.C. has been preferred by
the convict-appellant Laeek against the
judgment and order dated 09-03-2021
passed-by Smt. Poonam Singh, learned
Additional
Sessions
Judge/F.T.C.-II,
Sultanpur in Sessions Trial No. 40 of 2016,
arising out of Case Crime No. 348 of 2015,
under sections 302/34, 307/34,504,506(2)
I.P.C., Police Station-Chanda, districtSultanpur by which the convict-appellant
Laeek has been awarded death penalty
under section 302 readwith section 34
I.P.C. He was convicted and sentenced
under section 307/34 I.P.C. for 7 years
rigorous imprisonment with a fine of Rs.
10,000/- In default of payment of fine, the
convict-appellant was further directed to
undergo
additional
one
month
imprisonment. Under section 504 I.P.C., the
convict-appellant, Laeek was convicted and
sentenced for two years' imprisonment with
a fine of Rs. 2,000/- In default of payment
of fine, he was further directed to undergo
7 days additional imprisonment. Under
section 506(2) I.P.C., convict-appellant,
Laeek was convicted and sentenced for 7
years rigorous imprisonment with a fine of
Rs. 5,000/- In default of payment of fine,
he was further directed to undergo 15 days
932 INDIAN LAW REPORTS ALLAHABAD SERIES
additional
imprisonment
and
all
the
sentences were directed to run concurrently.

3. Criminal Appeal No. 704 of 2021
under section 374(2) Cr.P.C. has been
preferred by convict-appellant, Mohd.
Umar against the judgment and order dated
09-03-2021 passed by Smt. Poonam Singh,
learned Additional Sessions Judge/F.T.C.-
II, Sultanpur in Sessions Trial No. 40 of
2016, arising out of Case Crime No. 348 of
2015,
under
sections
302/34,
307/34,504,506(2) I.P.C., Police StationChanda, district-Sultanpur. Under section
302 readwith section 34 I.P.C., the convictappellant, Mohd. Umar has been convicted
and sentenced for life imprisonment with a
fine of Rs. 10,000/- In default of payment
of fine, he was further directed to undergo
one month additional imprisonment. Under
section 307/34 I.P.C., the convict-appellant,
Mohd. Umar has been convicted and
sentenced
for
7
years
rigorous
imprisonment with a fine of Rs. 10,000/- In
default of payment of fine, he has further
been directed to undergo one month
additional imprisonment. Under section
506(2) I.P.C., the convict-appellant, Mohd.
Umar was convicted and sentenced for 7
years rigorous imprisonment with a fine of
Rs. 5,000/- In default of payment of fine,
he was further directed to undergo 15 days
additional
imprisonment
and
all
the
sentences were directed to run concurrently.

4. Shorn off the unnecessary details of
the F.I.R., the brief facts of the case are that
on 07-10-2015 at about 06.00 P.M., the
convict-appellant, Laeek, was urinating in
front of the door of the complainant. When
the ladies of the house of the complainant
objected to it, he started abusing them. The
son of the complainant tried to restrain
Laeek from abusing the ladies of the house,
then convict-appellant, Laeek threatened
him. Convict-appellant, Laeek alongwith
co-accused, Mohd. Umar assaulted on the
neck of Jauhar with meat chopper. When
Jauhar Ali, Javed and Aamina, the wife of
complainant and his elder son, Moinuddin
reached the place of occurrence, the
convicts-appellants,
Mohd.
Umar
and
Laeek started assaulting them by meat
choppers. On the alarm raised by them, the
brother of the complainant, Alauddin and
his wife, Khairulnisha reached on the spot.
The accused followed them having meat
choppers in their hands. Many neighbours
assembled there and witnessed the incident.
When the crowd challenged the accused,
then leaving the family members of the
complainant, accused threatened the crowd
that if any of them tried to come forward,
they would kill them too. The convictappellants created chaos and terror in the
society. The crowd present there, started
dispersing and saving their lives behind the
doors of their houses. The shopkeepers also
shut down their shops. Then the convictappellants took to their heels threatening
the complainant and his family members
and crowd.

5. The complainant carried all the
injured to the government hospital, Chanda,
district-Sultanpur, but, due to serious
injuries sustained to victims, the doctors
referred all the injured to the district
hospital. While taking to district hospital,
injured, Gauhar Ali and Javed Ahmad died
due to the ante-mortem injuries caused by
both
the
convict-appellants
and
the
remaining injured were admitted in the
hospital.

6. On the basis of written report, Case
Crime No. 348 of 2015, under sections 302,
307, 504, 506 I.P.C. was registered against
convict-appellants,
Mohd.
Umar
S/o
Farookh and Laeek S/o Khalil at Police
10 All. State of U.P. Vs. Laeek
933
Station-Chanda, district-Sultanpur on the
very day i.e. 07-10-2015.

7. The inquest reports of the deceased,
Jauhar Ali and Gauhar Ali, Javed Ahmad
were prepared and dead bodies of all the
three deceased were sealed and after
preparation of all the required papers, their
dead bodies were sent for autopsy. The
Chik Report and the G.D. were prepared
and the investigation was entrusted upon
the Investigating Officer.

8.

The
Investigating
Officer
recorded the statements of the witnesses
under section 161 Cr.P.C. He inspected
the spot and prepared the site plan. He
collected the clothes of all the deceased
and sent it to the Forensic Science
Laboratory for examination.

9. The police procured the custody
of the convict-appellants, Laeek and
Mohd. Umar from jail and recovered two
meat choppers which were alleged to
have been used in causing death to the
deceased.
The
police
prepared
the
recovery memo. The autopsy of all the
three deceased were conducted by the
doctors of the District Hospital, Sultanpur
and the fourth deceased, who died in
Civil Hospital, Lucknow, his autopsy was
conducted by the doctors of the Civil
Hospital, Lucknow.

10. After collecting all the relevant
evidences against both the convictsappellants, the Investigating Officer filed
Chargesheet No. 153 of 2015 against the
accused, Lallu @ Mohd. Shabbir S/o of
Dauran @ Mohd. Hasan, Laeek S/o
Khalil and Mohd. Umar S/o Farookh,
under sections 302,307 readwith section
34 I.P.C. & section 506 I.P.C. The injury
report of injured, Smt. Aamina is also
filed with the Case Diary with the report
of Forensic Science Laboratory dated 2904-2016.

11.

The
convicts-appellants
appeared in the court and after taking
cognizance,
the
court
concerned
committed the case to the Court of
Session for trial. The Sessions Court
framed charges against accused,Laeek,
Mohd. Umar and Lallu @ Mohd. Shabbir
under sections 302,307,504 & 506 I.P.C.
readwith section 34 I.P.C. and the charges
were read-over to them. The convictappellants abjured from the charges and
claimed to be tried.

12. In order to prove the case against
the convict-appellants, the prosecution
adduced the following witnesses :-

1. Sri Sarfuddin, P.W.-1, complainant
of the case.

2. Smt. Aamina w/o Sarfuddin, P.W.-2
and injured.

3. Sri Habib Ahmad, P.W.-3, witness
of recovery memo

4. Sri Sagir Ahmad, P.W.-4, witness of
the inquest of the deceased Moinuddin,
who died in Civil Hospital, Lucknow.

5. Sri Azharuddin, P.W.-5, witness of
the inquest of the deceased Gauhar Ali,
Jauhar Ali & Javed Ahmad.

6. Dr. Kaushal Kishore Bhatt, witness
of the autopsy of the deceased Gauhar Ali,
Jauhar Ali & Javed Ahmad.

7. Sri Ajay Pratap Singh, P.W.-7, Sub.
Inspector, the then Chauki Incharge, Police
Station-Chanda Kotwali, district-Sultanpur.
witness of inquest of deceased Gauhar Ali.

8. Sri Nirbhay Kumar Singh, P.W.-8,
Sub. Inspector, witness of inquest of the
deceased Jauhar Ali.

9. Dr. R.K.Gautam, P.W.-9, Senior
Consultant, Dr. Shyama Prasad Mukherji
934 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital, Lucknow, witness of the autopsy
of the deceased, Moinuddin.

10. Sri Rana Pratap Singh, P.W.-10,
Sub. Inspector, who recovered two meat
choppers, used in the alleged incident on
the pointing of the accused. He identified
his signatures on Recovery Memo, Exhibits
10 & 11 and proved them. He proved site
plan, chargesheet etc. prepared by the
Investigating Officer, Ramesh Chandra as
secondary evidence.

13.

Besides
ocular
evidences,
the
prosecution
produced
following
documentary evidence :-

1. Exhibit Ka-1, Written Report.

2.Exhibit Ka-2, Inquest report of the
deceased Moinuddin

3. Exhibit Ka-3, Inquest report of the
deceased Gauhar Ali

4. Exhibit Ka-4, Inquest report of the
deceased Jauhar Ali

5. Exhibit Ka-5, Inquest report of the
deceased Javed Ahmad

6. Exhibit Ka-6, Autopsy report of the
deceased Gauhar Ali

7. Exhibit Ka-7, Autopsy report of the
deceased Javed Ahmad

8. Exhibit Ka-8, Autopsy report of the
deceased Jauhar Ali

9. Exhibit Ka-9, Autopsy report of the
deceased Moinuddin

10. Exhibit Ka-10, Recovery memo of
knife recovered from the possession of
accused Mohd. Umar.

11. Exhibit Ka-11, Recovery memo of
knife recovered from the possession of
Laeek.

12. Exhibit Ka-12, Site plan of
incident.

13. Exhibit Ka-13, Chargesheet.

14. After concluding the evidence
from the side of prosecution, statements of
the accused under section 313 Cr.P.C. were
recorded. In his statement recorded under
section 313 Cr.P.C., the convict-appellant,
Laeek Ahmad stated that he was urinating
near the dustbin lying adjacent to Pant
Nagar
Chauraha
on
07-10-2015.
Immediately, Smt. Aamina came and
abused him. When the convict-appellant,
Laeek Ahmad was passing through the Pant
Nagar Chauraha next day, Smt. Aamina,
her son alongwith sons of Alauddin
collectively assaulted him to the extent that
he urinated in his clothes. One of the sons
of Alauddin had meat chopper in his hands.
He snatched the meat chopper from him
and defended himself. It is also stated in the
statement recorded under section 313
Cr.P.C. that he was a labourer with Lallu
and he also served in the footwear shop of
Mohd. Umar.

15. Convict-appellant, Mohd. Umar
stated in his statement recorded under
section 313 Cr.P.C. that he is a Hafiz and
teaches Arbi and Urdu. On the fateful day,
he was sitting by Taj Mohd., tenant of
Sarfuddin and he intervened to resolve the
dispute on humanitarian ground, but, all the
four deceased alongwith Aamina assaulted
badly
upon
co-accused,
Laeek.
The
convict-appellant,Laeek defended himself.
Smt Aamina caught hold of the convictappellant, Laeek from the collar of his shirt,
but, he managed to escape from the grip of
Aamina. Mohd. Umar denied the recovery
of meat chopper from himself. The accused
was afforded the opportunity to adduce his
defence. D.W.-3, Taj Mohammad was
adduced as defence witness on behalf of the
convict-appellant, Mohd. Umar and no
witness was produced on behalf of the
convict-appellant, Laeek in defence.

16. After hearing both the parties and
perusal of the record, learned trial court
10 All. State of U.P. Vs. Laeek
935
reached to the conclusion that evidences of
P.W.-1 and P.W.-2 are genuine, natural and
reliable and there is no reason to falsely
implicate
the
two
convict-appellants,
Mohd. Laeek and Mohd. Umar. When
convict-appellant, Laeek escaped from the
place of occurrence, the other convictappellant, Mohd. Umar also followed him.
The incident occurred in furtherance of
common intention of both the accused and
the accused caused injuries to Smt. Aamina
and caused death to four other persons of
the same family.

17. Learned trial court convicted both
the convict-appellants, Laeek and Mohd.
Umar and punished them under sections
302/34,
307/34,504,506(2)
I.P.C.
in
Sessions Trial No. 40 of 2016 Police
Station-Chanda, district-Sultanpur.

18. Under section 302 readwith section
34 I.P.C., the convict-appellant, Mohd.
Umar has been convicted and sentenced for
life imprisonment with a fine of Rs. 10,000/-
and in default of payment of fine, he was
further directed to undergo one month
additional imprisonment. Under section 307
readwith section 34 I.P.C., the convictappellant, Mohd. Umar has been convicted
and
sentenced
for
7
years
rigorous
imprisonment with a fine of Rs. 10,000/- and
in default of payment of fine, he was further
directed to undergo one month additional
imprisonment. Under section 506(2) I.P.C.,
the convict-appellant, Mohd. Umar was
convicted and sentenced for 7 years rigorous
imprisonment with a fine of Rs. 5,000/- and
in default of payment of fine, he was further
directed to undergo 15 days additional
imprisonment and all the sentences were
directed to run concurrently.

19. Under section 302 readwith
section 34 I.P.C., the convict-appellant,
Laeek has been awarded death penalty. He
was convicted and sentenced under section
307/34
I.P.C.
for
7
years
rigorous
imprisonment with a fine of Rs. 10,000/- In
default of payment of fine, the convictappellant was further directed to undergo
additional one month imprisonment. Under
section 504 I.P.C., the convict-appellant,
Laeek was convicted and sentenced for two
years' imprisonment with a fine of Rs.
2,000/- In default of payment of fine, he
was further directed to undergo 7 days
additional imprisonment. Under section
506(2) I.P.C., convict-appellant, Laeek was
convicted and sentenced for 7 years
rigorous imprisonment with a fine of Rs.
5,000/- In default of payment of fine, he
was further directed to undergo 15 days
additional imprisonment and all sentences
were directed to run concurrently.

20. Aggrieved by the judgment of
conviction and punishment, two separate
appeals are filed by the convict-appellants,
Laeek and Mohd. Umar. Convict-appellant,
Laeek has filed appeal from jail.

21. Besides these two appeals,
Reference No. 2 of 2021 is made by
District Judge, Sultanpur for confirmation
of the death penalty to the convictappellant, Laeek.

22. Heard Sri R.B.S.Rathaur, learned
counsel for the convict-appellants in both
the appeals and learned A.G.A. for the
State-respondents.

23. Learned counsel for the convictappellants argued that the witnesses, P.W.-1
& P.W.-2 are highly interested witnesses
and they are relatives inter-se to the
deceased also. The incident occurred at the
public place, inspite of this fact, no public
witness is produced by the prosecution in
936 INDIAN LAW REPORTS ALLAHABAD SERIES
order to prove its case. The Investigating
Officer conducted the investigation with
too much lacuna. The name of the
Investigating Officer is missing from the
chargesheet and convict-appellants cannot
be convicted on the basis of such a shoddy
investigation. The dispute arose between
accused and family members of the
complainant on a minor issue and when the
family members of the complainant started
assaulting convict-appellant, Laeek with
meat chopper, then he snatched the meat
chopper and attacked with the meat
chopper in self-defence. The punishment
awarded to the convict-appellant, Laeek is
very severe in relation to the crime
committed by him.

24. It is also argued that the trial court
based its conviction on the basis of
statements of the accused recorded under
section 313 Cr.P.C., which is completely
beyond the scope of permissibility to base
judgment on the statements of the accused.
Recovery of weapons is doubtful. There
was no prior meeting of mind of the
accused. The convict-appellant, Mohd.
Umar just intervened on humanitarian
ground to disperse the crowd at the time of
the incident. Convict-appellant, Mohd.
Umar has not done any overt act in the
commission
of
crime,
therefore,
the
judgment and punishment awarded by the
trial court is liable to be set aside.

25. On the other hand, learned A.G.A.
opposed the submissions of learned counsel
for the convict-appellants and argued that it
is a brutal murder of four persons who
belongs to one family at the public place by
stabbing and three of them expired on the
spot and one of them expired when he was
being carried to the hospital. The convictappellants created chaos and terror in the
public at large. People started closing the
doors of their houses and the shopkeepers
started shutting down their shops. The
Investigating Officer after taking the
accused in police custody recovered blood
stained meat choppers on pointing out of
the convict-appellants and made recovery
under section 27 of the Indian Evidence
Act. The prosecution witnesses including
the injured, Aamina proved the prosecution
case beyond reasonable doubt, therefore,
learned A.G.A. requested to uphold the
judgment passed by the learned trial court.

26. Before proceeding with the
analysis of evidence, it will be proper to
mention here the evidences produced by
the prosecution in brief.

27. P.W.-1,Sarfuddin stated on oath
before the court that he is an illiterate
person and on the very fateful day of the
incident when the women of his house were
preparing for Wazu in the adjoining lane on
07-10-2015 at about 06.00 p.m., the
accused started urinating and when the
women of his house objected to it, he
started abusing them. His son, Javed
Ahmad forbade Laeek from abusing,
threatening his son Javed convict-appellant,
Laeek went away alongwith Mohd. Umar
and they returned with meat choppers and
assaulted Gauhar Ali and Jauhar Ali, sons
of his brother, Alauddin. Laeek attacked on
the neck of Gauhar Ali. When he made hue
and cry, his nephew Jauhar Ali & Javed and
his wife Aamina and his elder son,
Moinuddin
arrived
at
the
place
of
occurrence. Then, convict-appellants, Umar
and Laeek assaulted all of them by meat
choppers. The wife of his younger brother,
Khairulnisha and Alauddin shouted for
help. The people arrived at the place of
occurrence, but, on account of the terror of
both the convict-appellants, none could
come forward to save them. Gauhar Ali,
10 All. State of U.P. Vs. Laeek
937
Jauhar Ali, Javed, Moinuddin and Aamina
received grievous injuries and they became
unconscious. In the meantime, someone
called ambulance and they brought all the
five injured to Community Health Centre,
Chanda, district-Sultanpur from where they
were referred to district-hospital, Sultanpur.
Jauhar Ali, Gauhar Ali and Javed could not
survive and died on the way to hospital
while Aamina and Moinuddin were referred
to Trauma Centre, Lucknow. P.W.-1 further
stated that convict-appellants Laeek and
Mohd. Umar assaulted his children infront
of him with meat choppers. In this assault,
one of his sons sustained deep cut on the
neck and intestine of his other son came out
due to the assault on his stomach. His wife
was preparing for Wazu at that time. She
caught the accused to save his children, but,
accused attacked on her abdomen with
meat chopper and she fell down and
became unconscious.

28. P.W.-2, Smt. Aamina corroborated
the statement of P.W.-1, Sarfuddin and
deposed that when she was preparing for
Wazu, convict-appellant, Laeek started
urinating at about 06.00 p.m. on 07-102015. When she forbade him from doing
so, he started abusing her and came with
co-accused, Mohd. Umar, having meat
choppers in their hands and attacked on the
neck of Gauhar Ali and on the stomach of
Javed. When she tried to defend her son,
Laeek attacked on her chest and abdomen
also. In the Trauma Centre, Lucknow, she
came to know that Gauhar Ali, Jauhar Ali
and Javed expired on the very day and
Moinuddin expired during his treatment in
Lucknow.

29. P.W.-3, Habib Ahmad is a witness
of recovery who proved that the meat
chopper was recovered on the pointing out of
the accused,Laeek and proved the meat
chopper as Item Exhibit-Kha-1. P.W.-3 also
proved the recovery of meat chopper on the
pointing out of accused Mohd. Umar and
proved the meat chopper used in the incident
as Item Exhibit Kha-2.

30. P.W.-4, Sagir Ahmad certified his
signatures on inquest report, Exhibit Ka-2.

31. P.W.-5, Azharuddin certified his
signatures on Exhibits Ka-3, Ka-4 & Ka-5 i.e.
inquest reports of deceased, Gauhar Ali,
Jauhar Ali and Javed.

32. P.W.-6, Dr. Kaushal Kishore Bhatt
conducted autopsy of deceased Jauhar Ali
and declared him ''brought dead' in the district
hospital, Sultanpur at 08.15 P.M. on 07-102015. The following ante-mortem injuries
were found on the dead body of the deceased
Jauhar Ali :-

Ante-mortem Injuries.

"(1) Incised wound 1 cm. x 0.5 cm. on
back of left elbow.

(2) Incised wound 2 cm. x 1 cm. on
lateral aspect of left thorax 3 cm. below axilla
(left) cavity deep.

(3) Incised wound 2 cm. x 1 cm. on left
lateral side of upper abdomen 20 cm. below
anterior axillary fold (left) cavity deep

4). Lacerated wound 2.5 cm. X 1 cm. on
left lateral side of back 1 cm above left iliac
crest underlying intestine coming out.

Cause of death occurred due to
Hemorrhage & Shock as a result of antemortem injuries.

33. P.W.-6, Dr. Kaushal Kishore Bhatt also
conducted autopsy of deceased Javed &
Gauhar Ali
in
the
district
hospital,
Sultanpur. The following ante-mortem
injuries were found on the dead bodies of
the deceased Javed & Gauhar Ali :-
938 INDIAN LAW REPORTS ALLAHABAD SERIES

Ante-mortem injuries of Javed

(1) Incised wound 5 cm. X 2 cm. X
cavity deep on front of chest 12 cm. Below
the manubrium sterni.

(2) Incised wound 2 cm. X 1 cm. on
left side of abdomen at 5 O'Clock position
6 cm. away from umbilicus.

(3) Linear abrasion 7 cm. x 0.2 cm. on
left side of abdomen 5 cm. away from
umbilicus
(4) Abrasion 1 cm x 0.1 cm. on left side of
face just above lateral end of left eye brow.

Cause
of
death
occurred
due
to
Hemorrhage & Shock as a result of antemortem injuries.

Ante mortem injuries of Gauhar Ali

1. Incised Wound 4 cm. X 1 cm. on
left side of neck 4 cm. below left angle of
mandible, underlying tissue(let carotid
artery lacerated).

Cause of death occurred due to
Hemorrhage & Shock as a result of antemortem injuries.

34. P.W.-7, Sub. Inspector,Ajay Pratap
Singh
Yadav,
the
then
Chowki
Incharge,Laxmanpur,
Police
StationKotwali Nagar, Sultanpur prepared inquest
report of the deceased Gauhar Ali.

35. P.W.-8, Sub. Inspector, Nirbhay
Kumar Singh prepared inquest report of
the deceased Jauhar Ali and identified his
signatures on the inquest report,Exhibit
Ka-4; prepared relevant papers to be sent
for conducting autopsy of the deceased;
sealed
Photo
lash,
Challan
lash,
Memorandum of specimen signature,
letters to R.I. & C.M.O. etc. and sent the
dead body of the deceased Jauhar Ali
through Constable Abhishek Dwivedi in
the sealed condition to Mortuary House.

36. P.W.-09, Dr. R.K.Gautam,
Senior Consultant, Dr. Shyama Prasad
Mukherji
Civil
Hospital,
Lucknow,
prepared post mortem report of deceased
Moinuddin in the hospital and found the
following ante-mortem injuries on the
dead body of the deceased Moinuddin :-

Ante-mortem Injuries

"(1)
Stitched
wound
2cm
long
alongwith two stitches present on outer
aspect of both side chest.
(2) Stitched wound 12 cm long, alongwith
12 stitches present on left side chest just,
Medial, below left nipple.
(3) Stitched wound 3cm long alongwith 4
stitches present on outer aspect of Lt. side
chest 2 cm. lateral to left nipple on
opening ecchymosis present underneath
all injuries made and above 4th rib of left
side of chest and cut above place. Left
side with pleura few cut at C.A. pavet
About 500 ml clotted blood present in
thoracic."

Cause of death is due to shock and
hemorrhage as a result of ante-mortem
injuries.

37. It is stated in grounds of appeal
that the injury report of injured Aamina is
not on record as such it cannot be said that
she sustained injuries during the incident.
The injured-Aamina also received injuries
in the incident and she was referred to
Trauma Centre, Lucknow. Her injury report
paper no.70-Ka/1 is on record. Medical
report reveals that "minimal peritoneal"
collection noted. No c/o pleural collection
noted
through
abdominal
window.
Supplementary report paper no 20-Kha/2
10 All. State of U.P. Vs. Laeek
939
prepared by doctor in the Trauma Centre is
on record which is as under :-

"MLC noted from District Hospital
Sultanpur.

Patient came to Trauma Centre on 0810-2015 was admitted and emergency
management was done.

Patient presented as an alleged case of
stab injury over abdomen.

Emergency
surgical
management
done.
Exploratory
laparotomy
with
peritoneal
lavage
with
jejunojejunal
resection anastomois at approx. 3 feet
distal to dudenojejunal junction with
bilateral drain placement.

Patient's
hospital
course
was
uneventful and discharged on 16-10-2015."

38. P.W.-10, Sub. Inspector, Rana
Pratap Singh, recovered two meat choppers
on the pointing of the accused and proved
the recovery memo in court. This witness
deposed that the incident was very sensitive
and police force remained at the place of
occurrence for many days. The village was
turned into police cantonment.

39. D.W.-01, Haseena, in her
statement recorded on 19-02-2021 stated
that the incident took place five years ago,
but, she did not remember the exact date
of the incident. She stated that she was
busy in the engagement ceremony of her
daughter. After knowing about the incident
from the neighbours, she did not go to the
place of the incident and she stated about
Lallu only.

40. D.W.-02, Lallu, in his statement
recorded on 19-02-2021 stated that the
incident took place five years ago. He knew
both the convict-appellants, Mohd. Umar &
Laeek and he had no enmity with them. He
deposed all the things about himself only.

Since, D.W.-01 & D.W.-02 in their
statements stated only about the fact that
Lallu was not present on the spot, therefore,
their statements are irrelevant in regard
with the involvement of present convictappellants.

41. D.W.-3, Taj Mohd., corroborated
the happening of the incident, but, he stated
that convict-appellant, Laeek was attacked
by complainant's son and other family
members. Laeek snatched the meat chopper
and attacked on the victims in self defence.

42. Learned counsel for the convictappellants submitted that there is no
independent witness of the incident. The
crowd is stated to have gathered at the
place of occurrence, but, no independent
witness was adduced and the witnesses
produced by prosecution are the highly
interested witnesses.

43. In Kartik Malhar Vs. State of
Bihar (1996) 1 SCC 614, the Hon'ble Apex
Court has held as under:-

"We may also observe that the ground
that the witness being a close relative and
consequently, being a partisan witnesses,
should not be relied upon, has no
substance. This theory was repelled by this
Court as early as in Dilip Singh's case
(supra) in which this Court expressed its
surprise
over
the
impression
which
prevailed in the minds of the members of
the Bar that relative were not independent
witnesses. Speaking through Vivian Bose,
J., the Court observed :

We are unable to agree with the
learned Judges of High Court that the
testimony of the two eye-witnesses requires
corroboration. If the foundation for such an
observation is based on the fact that the
witnesses are women and that the fate of
940 INDIAN LAW REPORTS ALLAHABAD SERIES
seven men hangs on their testimony, we
know of no such rules. If it is grounded on
the reason that they are closely related to
the deceased we are unable to concur. This
is a fallacy common to many criminal cases
and one which another Bench of this Court
endeavored to idspeal in Rameshwar v. The
State of Rajasthan [1952] SCR 377= AIR
1952 SC 54. We find, however, that it is
unfortunately still persist, if not in the
judgments of the Courts, at any rate in the
arguments of counsel."

In this case, the Court further
observed as under:

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

In another case of Mohd. Rojali
Versus State of Assam: (2019) 19 SCC
567, the Hon'ble Apex Court in this regard
has held as under:-

"As regards the contention that all
the eyewitnesses are close relatives of the
deceased, it is by now well settled that a
related witness cannot be said to be an
''interested' witnesses merely by virtue of
being a relative of the victim. This court
has elucidated the difference between
''interested' and '' related' witness in a
plethora of cases, stating that a witness
may be called interested only when he or
she derives some benefit from the result
of a litigation, which in the context of a
criminal case would mean that the
witness has a direct or indirect interest in
seeing the accused punished due to prior
enmity or other reasons, and thus has a
motive to falsely implicate the accused
(for instance, see State of Rajasthan v.
Kalki (1981) 2 SCC 752; Amit v. State of
Uttar Pradesh, (2012) 4 Scc 107; and
Gangabhavani v. Rayapati Venkat Reddy,
(2013) 15 SCC 298). Receltly, this
difference was reiterated in Ganapathi v.
State of Tamil Nadu, (2018) 5 SCC 549,
in the following terms, by referring to the
three Judge bench decision in State of
Rajasthan
v.
Kalki
(supra):
"14.
"Related"
is
not
equivalent
to
"interested". A witness may be called
"interested' only when he or she derives
some benefit from the result of a
litigation; in the decree in a civil case, or
in seeing an accused person punished. A
witness who is a natural one and is the
only
possible
eye
witness
in
the
circumstances of the case cannot be said
to be "interested".."

11. In criminal cases, it is often the
case that the offence is witnessed by a
close relative of the victim, whose
presence on the scene of the offence
would be natural. The evidence of such a
witness
cannot
automatically
be
discarded by labelling the witness as
interested. Indeed, one of the earliest
statements with respect to interested
witnesses in criminal case was made by
this Court in Dalip Singh v. State of
Panjab 1954 SCR 145, wherein this Court
observed:

"26. A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and that usually means unless the
witness has cause, such as enmity against
10 All. State of U.P. Vs.