# State of U.P v. Mahfooz & Ors

- **Citation:** (2022) 9 ILRA 995
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Government Appeal No. 316 of 2019
- **Bench:** Vivek Kumar Birla, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mahfooz-ors-49293
- **Pages:** 25

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3) -
Indian Penal Code,1860 - Sections 148,
149, 201, 302, 342 & 364, - Indian
Evidence Act,1872 - Section- 65(b)(4) -
Government Appeal - against order of Acquittal
- offence of Kidnapping, wrongful restraint &
murder - until and unless the judgment under
challenge is perverse and there are substantial
and compelling reasons followed by miscarriage
of justice to be meted by the parties, the court
in appeal should not in routine manner interfere
with. (Para 15)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3), -
Indian Penal Code,1860 - Sections 148,
149, 201, 302, 342 & 364 - Indian
Evidence Act, 1860 - Section 65(b)(4) -
Government Appeal - against order of Acquittal
996 INDIAN LAW REPORTS ALLAHABAD SERIES
-
screening
of
evidence
-
on
merits,
inconsistency in St.ment of eye-witness of
incident assumes significance particularly when
entire prosecution theory has been laid down on
foundation of his deposition - There is an
unexplained delay of more than 24 days in
lodging the FIR - there is enormous time gap
between point of time when accused and
deceased were last seen alive and when
deceased is found death - Mandatory procedure
so envisaged under Section 65-B (4) of Evidence
Act has also not been followed - though merely
because prosecution witnesses turned hostile
may not ipso facto be a abstract principle of law
that prosecution theory stands disbelieved but
such situation is to be seen along with other
factors - giving anxious consideration from four
corners of law to the impugned judgment and
order, the trial court has not committed any
palpable illegality or perversity - acquittal upheld
- Leave to appeal rejected - so St. appeal stands
dismissed.(Para 67, 72, 77, 89, 90, 102, 105)

(D) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3), -
Indian Penal Code, 1860 - Sections 148,
149, 201, 302, 342 & 364 - Indian
Evidence Act,1872 - Section 65(b)(4) -
Government Appeal - against order of Acquittal
- Admissibility of electronic evidence - CDR - is
also one of important factors along with other
factors - if pressed into service can surface
position of accused into order to determine as to
whether he had committed crime or not -
However, there is a complete procedure
envisaged under Section 65-B(4) of Evidence
Act wherein production of certificate has been
held
to
be
mandatory
with
certain
exceptions.(Para - 86)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,873 of 82,656. This is a partial read: ask again with offset=39873 for what follows._

9 All. State of U.P. Vs. Mahfooz & Ors.
995
probable doubt, but a fair doubt that is
based upon reason and common sense.
(Vide: Hanumant Govind Nargundkar &
Anr. v. State of M.P., AIR 1952 SC 343;
Shivaji Sahabrao Bobade & Anr. v. State of
Mahrashtra, AIR 1973 SC 2622; Sharad
Birdhichand Sarda v. State of Maharashtra,
AIR 1984 SC 1622; Subhash Chand v. State
of Rajasthan, (2002) 1 SCC 702; Ashish
Batham v. State of M.P., AIR 2002 SC
3206; Narendra Singh & Anr. v. State of
M.P., AIR 2004 SC 3249; State through CBI
v. Mahender Singh Dahiya, AIR 2011 SC
1017; and Ramesh Harijan v. State of U.P.,
AIR 2012 SC 1979).:

54. Marshalling the testimony of the
prosecution witness and the documents so
adduced by them, this Court has no hesitation
but to form a firm opinion that the
prosecution has completely failed to prove
beyond doubt that the accused has committed
the offence. More so, the learned trial court
has meticulously analysed the case from four
corners of law and after considering the
evidence as well as occular testimony has
acquitted the accused. The view taken by the
trial court is not only plausible but a possible
view and there is no occasion for this Court
to take another view while substituting
judgment of acquittal into conviction. This
Court further finds that the judgment of
acquittal is neither preserve nor is a case of
misreading of evidence or it proceeds
towards wrong direction. Obviously double
presumption of innocence is available with
the accused and it is not a case where any
interference is warranted.

55. Accordingly, it is not a case worth
granting leave to appeal. The application for
granting leave to appeal is rejected.

56. Consequently, since the Criminal
Misc. Application (Leave to Appeal) is
rejected by order of this date, the present
government appeal is also dismissed.

57. Record of the present case be sent
back to the learned trial court.
----------
(2022) 9 ILRA 995
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 316 of 2019

State of U.P. ...Appellant
Versus
Mahfooz & Ors. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
Sri Sadaful Islam Jafri, Sri Sadaful Islam
Jafri, Nasira Adil, Ms. Ambreen Masroor, Sri
N.I. Jafri (Sr. Advocate)

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3) -
Indian Penal Code,1860 - Sections 148,
149, 201, 302, 342 & 364, - Indian
Evidence Act,1872 - Section- 65(b)(4) -
Government Appeal - against order of Acquittal
- offence of Kidnapping, wrongful restraint &
murder - until and unless the judgment under
challenge is perverse and there are substantial
and compelling reasons followed by miscarriage
of justice to be meted by the parties, the court
in appeal should not in routine manner interfere
with. (Para 15)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3), -
Indian Penal Code,1860 - Sections 148,
149, 201, 302, 342 & 364 - Indian
Evidence Act, 1860 - Section 65(b)(4) -
Government Appeal - against order of Acquittal
996 INDIAN LAW REPORTS ALLAHABAD SERIES
-
screening
of
evidence
-
on
merits,
inconsistency in St.ment of eye-witness of
incident assumes significance particularly when
entire prosecution theory has been laid down on
foundation of his deposition - There is an
unexplained delay of more than 24 days in
lodging the FIR - there is enormous time gap
between point of time when accused and
deceased were last seen alive and when
deceased is found death - Mandatory procedure
so envisaged under Section 65-B (4) of Evidence
Act has also not been followed - though merely
because prosecution witnesses turned hostile
may not ipso facto be a abstract principle of law
that prosecution theory stands disbelieved but
such situation is to be seen along with other
factors - giving anxious consideration from four
corners of law to the impugned judgment and
order, the trial court has not committed any
palpable illegality or perversity - acquittal upheld
- Leave to appeal rejected - so St. appeal stands
dismissed.(Para 67, 72, 77, 89, 90, 102, 105)

(D) Criminal Law - Criminal Procedure
Code, 1973 - Sections 378 & 378(3), -
Indian Penal Code, 1860 - Sections 148,
149, 201, 302, 342 & 364 - Indian
Evidence Act,1872 - Section 65(b)(4) -
Government Appeal - against order of Acquittal
- Admissibility of electronic evidence - CDR - is
also one of important factors along with other
factors - if pressed into service can surface
position of accused into order to determine as to
whether he had committed crime or not -
However, there is a complete procedure
envisaged under Section 65-B(4) of Evidence
Act wherein production of certificate has been
held
to
be
mandatory
with
certain
exceptions.(Para - 86)

Appeal dismissed. (E-11)

List of Cases cited:

1. Rajesh Prasad Vs St. of Bihar, (2022) 3 SCC
(471),

2. Padam Singh Vs St. of U.P., (2000) 1 SCC
621,

3. Apren Joseph @ Current Kunjukunju& ors. Vs
The St. of Kerala (1973) 3 SCC 114,

4. Tara Singh& ors. Vs St. of Pun. 1991 Suppl.
(1) SCC 536,

5. P. Rajagopal & ors. Vs St. of T. N., (2019) 5
SCC 403,

6. Dharam Deo Yadav Vs St. of U. P., (2014) 5
SCC 509,

7. Dhan Raj @ Dhand Vs St. of Har., (2014) 6
SCC 745,

8. Ashok Vs St. of Har., (2015) 4 SCC 393,

9. Chandrapal Vs St. of Chhattisgarh, AIR 2022
S.C. 2542,

10.
Arjun
Panditrao
Khotkar
Vs
Kailash
Kushanrao Gorantyal & ors., (2020) 7 SCC,

11. Ravindra Singh @ Kaku Vs St. of Punj. (Criminal
Appeal No. 1307/2019 decided on Dt. 04.05.2022),

12. Nathiya Vs St. represented by Inspector of Police,
Bagayam Police Station Vellore, (2016) 10 SCC 298,

13. Khekh Ram Vs St. of H. P. (2018 (1) SCC 202).

(Delivered by Hon'ble Vikas Budhwar, J.)

1. The present appeal purports to be
under
Section
378(3)
of
Criminal
Procedure Code, 1973 (in short 'Cr.P.C.'),
seeking to challenge the judgment and
order dated 2.4.2019 passed by IVth
Additional
District
&
Sessions
Judge/Special Judge, E.C. Act, Pilibhit in
S.T. No.297 of 2014, (State of U.P. Vs.
Mahfooz Ansari and 4 others), S.T. No.16
of 2015 (State of U.P. Vs. Irshad) and S.T.
No.96 of 2015, (State of U.P. Vs. Kalloo
Mewati), in Case Crime No.801 of 2014,
P.S. Sungarhi, District Pilibhit under
Sections 148, 364, 342, 302 read with
Sections 149, 201 IPC acquitting the
accused respondents, who are 7 in number.

INTRODUCTORY FACTS
9 All. State of U.P. Vs. Mahfooz & Ors.
997

2. Essence of the fact which lies in
narrow compass as wrapped in prosecution
story are that one Jai Prakash s/o Shri Ram
Charan Lal r/o Village Gauneri Dan, P.S.
Jahanabad, District Pilibhit submitted a
written report before Deputy Inspector
General of Police Bareilly on 19.5.2004 at
16.30 a.m. with an allegation that he
solemnized marriage with Smt. Tabbasum @
Munni d/o Mahmood, r/o Chiriyadeh, P.S.
Sungarhi, District Pilibhit on 18.12.2013, as
the same was interfaith marriage thus, the
accused fraction got furrated as their daughter
married the informant, who happens to be of
different religion.

3. Occasioning threats to the life, the
first informant/complainant claims that he
had no option but to prefer proceedings
before this Court on writ side being W.P.
No.20156 of 2004, Smt. Tabbasum @
Munni and others Vs. State of U.P. seeking
police protection.

4. As per the first informant on
16.4.2014 a positive order was passed in
their favour granting civil protection.
Prosecution further asserts that Jaiprakash
being the informant and the deceased being
Smt. Tabbasum @ Munni were living
together, however, on the fateful day i.e.
25.4.2014
when
the
informant
was
travelling from Bareilly to Pilibhit then at
5.00 in the evening at a place being
Laveda, Police Station Hafizganj Bareilly,
the accused respondents Mahfooz, Abdul
Mazid, Mustkeem, Ayub and Irshad who
happened to be the relatives of Smt.
Tabbasum
@
Munni
while
exerting
pressure forcibly abducted his wife being
Smt. Tabbasum @ Munni.

5. According to first informant, he
proceeded to police station Hafizganj in
order to submit written report but neither
the same was taken note of nor any
proceedings were conducted in that regard.
In fact he tried his level best to search the
whereabouts of his missing wife Smt.
Tabbasum @ Munni but she could not be
traced. Thus, he apprehends that the life of
his wife is in danger.

6. It was further alleged that on
17.5.2014, he received a phone call from
his wife Smt. Tabbasum @ Munni
apprising him that she has been illegally
confined in the house of his maternal uncle
Irshad Master and he along with others had
committed bad act with her and they are
planning to murder her. The said call is
stated to have been made from the mobile
phone no.8273025296.

7. On the basis of the written
complaint so lodged by the first informant
before the Deputy Inspector General of
Police, Agra region Agra on 19.5.2014 at
4.30 in the morning, a first information
report was lodged. Accordingly, the Circle
Officer city by virtue of the order dated
19.5.2014 directed for conduction of
investigation in the said matter against the
accused herein. The FIR was registered as
Case Crime No.801 of 2014 under Sections
364, 342 IPC.

8. Records further reveal that on
20.5.2014 one Tilakram s/o Sunder Lal, r/o
Gram Gauhania, P.S. Sungarhi, District
Pilibhit lodged a written complaint before
the Station House Officer, Sungarhi,
District Pilibhit reporting that near the
drain in Village Gauhania a dead-body of
woman was found and adjacent to her the
accessories being slipper, dupatta etc. was
also noticed and the resident of village in
question identified the girl to be the sister
of Mahfooz Ansari being Smt. Tabbasum
@ Munni.
998 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Accordingly, Sections 302 and 201
IPC were also added in the Case Crime
No.801 of 2014 which was proceeded to be
investigated pursuant to the nomination of
the Investigating Officer.

10.

As
per
the
prosecution
Investigating
Officer
conducted
the
investigation
prepared
site
plan,
Panchnama sent the body for postmortem
followed by recording the statement of the
prosecution
witnesses.
Eventually,
a
charge-sheet was submitted under Sections
342, 364, 302, 148, 149, 201 IPC against
the accused herein being Mahfooz Ansari,
Mustakeem, Ayub, Abdul Mazid and
Riyasat @ Mama Irshad and Kallu Mewati
@ Daroga Khan.

11. Case was committed to trial to
sessions by virtue of order dated 17.3.2005,
23.8.2014, 9.10.2014, 12.2.2015, 1.7.2015
and 12.11.2018. Charges were read over to
the accused herein. Accused claimed to be
tried and they pleaded innocence.

12. Learned Trial Court by virtue of
the judgment and order under challenge has
acquitted the accused herein.

13. Challenging the judgment and order
of acquittal now the present appeal has been
instituted at the behest of the State.

LEGAL POSITION

14. Before pondering into the niceties
of
the
judgment of
acquittal
under
challenge in the proceedings under Section
378(3) Cr.P.C. at the instance of the State,
this Court has to re-memoirse itself the fact
that the present proceedings are in a form
of
appellate
jurisdiction
occasioning
scrutiny of a judgment of acquittal wherein
there are certain limitations so provided
therein which needs to be recognised
before the delving in the issue.

15. Broadly speaking until and unless
the judgment under challenge is perverse
and there are substantial and compelling
reasons followed by miscarriage of justice
to be meted by the parties, this Court
should not in routine manner interfere with
the judgment of acquittal as the accused is
possessed with double presumption of
innocence.

16. To put it otherwise as a matter of
right, this Court cannot at the instance of
the appellant, who happens to be State
exercise the jurisdiction while converting
the judgment of acquittal into conviction.

17. The aforesaid principle of law has
already been crystallized by Hon'ble Apex
Court in plethora of decisions and just for
the sake of illustration reference may be
made to the judgment of Rajesh Prasad
Vs. State of Bihar (2022) 3 SCC (471)
wherein the Hon'ble Apex Court in
paragraphs no.21, 22, 23, 24, 25 and 31.1.

21. Before proceeding further, it
would be useful to review the approach to
be adopted while deciding an appeal
against acquittal by the trial court as well
as by the High Court. Section 378 CrPC
deals with appeals in case of acquittal. In
one of the earliest cases on the powers of
the High Court in dealing with an appeal
against an order of acquittal the Judicial
Committee of the Privy Council in Sheo
Swarup v. King Emperor2 considered the
provisions relating to the power of an
appellate court in dealing with an appeal
against an order of a acquittal and
observed as under: (SCC OnLine PC)
9 All. State of U.P. Vs. Mahfooz & Ors.
999
"16. It cannot, however, be forgotten that in
case of acquittal, there is a double
presumption in favour of the accused.
Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that
every person should be presumed to be
innocent unless he is proved to be guilty by
a competent court of law. Secondly, the
accused having secured an acquittal, the
presumption of his innocence is certainly
not weakened but reinforced, reaffirmed
and strengthened by the trial court.

"..... But in exercising the power conferred
by the Code and before reaching its
conclusions upon fact, the High Court
should and will always give proper weight
and consideration to such matters as: (1)
the views of the trial Judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4)
the slowness of an appellate court in
disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the
witnesses. To state this, however, is only to
say that the High Court in its conduct of the
appeal should and will act in accordance
with rules and principles well known and
recognised in the administration of justice."

It was stated that the appellate
court has full powers to review and to
reverse the acquittal.

22. In Atley v. State of U.P.3, the
approach of the appellate court while
considering a judgment of acquittal was
discussed and it was observed that unless
the appellate court comes to the conclusion
that the judgment of the acquittal was
perverse, it could not set aside the same. To
a
similar
effect
are
the
following
observations
of
this
Court
speaking
through Subba Rao, J. (as his Lordship
then was) in Sanwat Singh v. State of
Rajasthant: (Sanwat Singh case4, AIR pp.
719-20, para 9)

"9. The foregoing discussion
yields the following results: (1) an
appellate court has full power to review the
evidence upon which the order of acquittal
is founded; (2) the principles laid down in
Sheo Swarup2 afford a correct guide for the
appellate court's approach to a case in
disposing of such an appeal; and (3) the
different phraseology used in the judgments
of this Court, such as, (i) "substantial and
compelling
reasons",
(ii)
"good
and
sufficiently cogent reasons", and (iii)
"strong reasons" are not intended to curtail
the undoubted power of an appellate court
in an appeal against acquittal to review the
entire evidence and to come to its own
conclusion; but in doing so it should not
only consider every matter on record
having a bearing on the questions of fact
and the reasons given by the court below in
support of its order of acquittal in its
arriving at a conclusion on those facts, but
should also express those reasons in its
judgment, which lead it to hold that the
acquittal was not justified."

The need for the aforesaid
observations
arose
on
account
of
observations of the majority in Aher Raja
Khima v. State of Saurashtra5 which stated
that for the High Court to take a different
view on the evidence "there must also be
substantial and compelling reasons for
holding that the trial court was wrong".

23. M.G. Agarwal v. State of
Maharashtra is the judgment of the
Constitution Bench of this Court, speaking
through
Gajendragadkar,
J.
(as
his
Lordship then was). This Court observed
that the approach of the High Court
(appellate court) in dealing with an appeal
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
against acquittal ought to be cautious
because the presumption of innocence in
favour of the accused "is not certainly
weakened by the fact that he has been
acquitted at his trial".

24. In Shivaji Sahabrao Bobade
v. State of Maharashtra, Krishna Iyer, J.,
observed as follows: (SCC p. 799, para 6).

"6.
...
In
short,
our
jurisprudential enthusiasm for presumed
innocence must be moderated by the
pragmatic need to make criminal justice
potent and realistic. A balance has to be
struck between chasing chance possibilities
as good enough to set the delinquent free
and chopping the logic of preponderant
probability to punish marginal innocents."

25. This Court in Ramesh Babulal
Doshi v. State of Gujarats, spoke about the
approach of the appellate court while
considering an appeal against an order
acquitting the accused and stated as
follows: (SCC p. 229, para 7)

"7. ... While sitting in judgment
over an acquittal the appellate court is first
required to seek an answer to the question
whether the findings of the trial court are
palpably wrong, manifestly erroneous or
demonstrably
unsustainable.
If
the
appellate court answers the above question
in the negative the order of acquittal is not
to be disturbed. Conversely, if the appellate
court holds, for reasons to be recorded, that
the order of acquittal cannot at all be
sustained in view of any of the above
infirmities it can and then only reappraise
the
evidence
to
arrive
at
its
own
conclusions."

The object and the purpose of the
aforesaid approach is to ensure that there
is no miscarriage of justice. In another
words, there should not be an acquittal of
the guilty or a conviction of an innocent
person.

31.1. Ordinarily, this Court is
cautious in interfering with an order of
acquittal, especially when the order of
acquittal has been confirmed up to the High
Court. It is only in rarest of rare cases, where
the High Court, on an absolutely wrong
process of reasoning and a legally erroneous
and perverse approach to the facts of the
case, ignoring some of the most vital facts,
has acquitted the accused, that the same may
be reversed by this Court, exercising
jurisdiction under Article 136 of the
Constitution. [State of U.P. v. Sahai13] d Such
fetters on the right to entertain an appeal are
prompted by the reluctance to expose a
person, who has been acquitted by a
competent court of a criminal charge, to the
anxiety and tension of a further examination
of the case, even though it is held by a
superior court. [Arunachalam v. P.S.R.
Sadhanantham14] An appeal cannot be
entertained against an order of acquittal
which has, after recording valid and weighty
reasons, has arrived at an unassailable,
logical conclusion which justifies acquittal."

18. Bearing in mind the principles of
law so laid down by the Hon'ble Apex
Court as referred to above the present case
is to be proceeded with while giving it a
logical end.

19. Heard Ms. Nand Prabha Shukla
learned AGA and Sri N.I. Jafri, learned
Senior Counsel assisted by Ms. Ambreen
Masroor, learned counsel for the accusedrespondents.

CONTENTIONS OF STATE/
APPELLANT

20. Ms. Nand Prabha Shukla learned AGA
has made the manifold submissions namely:-
9 All. State of U.P. Vs. Mahfooz & Ors.
1001

(a) The accused herein have
committed offence which stood proved
beyond doubt as the chain and sequence of
events consistently points towards the
commission
of
the
offence
beyond
reasonable doubt.

(b) The accused was seen with
the
deceased
lastly
wherefrom
she
disappeared thus the last seen theory comes
into play.

(c) The call details (CDR) itself
points out that the deceased was with the
accused which stood proved beyond doubt.

(d) There was a strong motive for
commission of crime by the accused as the
present case occasioned interfaith marriage.

(e) Mere contradictions in the
statement of the PW4 Jai Prakash (first
informant husband) coupled with other
prosecution witnesses turning hostile will
not be a factor to hold the accused nonguilty of commission of crime particularly
when there was not only a strong motive
but also the fact that circumstantial
evidences consistently form the link of
commission of crime by accused.

CONTENTIONS
OF
ACCUSED/RESPONDENTS

21. Sri N.I. Jafri, learned Senior
Counsel assisted by Amreen Masroor,
learned counsel for the accused respondents
have made following submissions:-

A. The judgment of the learned
trial court is well reasoned taking into
account each and every aspect of the matter
and does not warrant any interference by
this Court while exercising appellate
jurisdiction.

B.
Once
there
the
major
contradictions
and
inconsistency
and
improvement have been made in the
testimony of the PW4 (first informant)
coupled with other prosecution witnesses
turning hostile then this Court should not
interfere in the present proceedings as view
taken by the learned trial court is possible
view.

C. The circumstantial evidence do
not support the prosecution theory as the
complete chain itself is missing while
linking the accused to have committed
crime.

D. In view of huge time gap of 24
days between the accused alleged to be
lastly seen with the deceased and the date
of death the last seen theory does not stand
applied.

E. The entire prosecution case
stands on suspicion which cannot be a
ground to hold the accused guilty of
commission of crime.

DETAILS & DESCRIPTION OF
OCULAR
TESTIMONY
AND
DOCUMENTS ADDUCED

22. At this stage, the court finds
proper to give brief description and details
of the prosecution witnesses namely:

1.
Qadir Khan
PW1
2.
Rafee Ahmad
PW2
3.
Tilakram
PW3
4.
Jai Prakash
PW4
5.
Omkar
PW5
6.
Ravi Sharma
PW6
7.
Dr. Mahabeer Singh
PW7
8.
Roshal Lal Retd. HCP
PW8
9.
Bhuvnesh Kumar Gautam PRO S.P.
Pilibhit
PW9
10. Atul
Pradhan
Inspector
Crime
Branch, Badaun
PW10
11. Mohd. Rijwan
PW11
12. Zakir Hussain
PW12
13. Retd. S.I. Phool Singh
PW13
14. Sumer Singh Siddhu
PW14
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
15. Ramesh Saxena
PW15
16. Brijesh Singh Inspector
PW16
17. Uday Shankar
PW17
18. Dalbir Singh Inspector
PW18
19. Siyaram
PW19
20. Babu Baksh
PW20
21. Nasir Ahmad
PW21
22. Nanhe Baksh
PW22
23. Gopal Chandra Gupta
PW23
24. Mohd. Fahim
PW24
25. Sanjiv Kumar Saxena
PW25
26. Triloki Nath Mishra
PW26
27. Manoj Kumar
PW27
28. Smt. Babli
PW28
29. Surendra Pratap Singhs PRO Badaun PW29

23.

Besides
ocular
testimony
following documents were adduced to
support the prosecution:-

1
Panchayatnama
Ex.ka1
2
Written Complaint
Ex.ka2
3
Fard
Ex.ka3

Letter No.4/2, 4/3 A-1/A
Ex.ka1/A

Postmortem report
Ex.ka-3
4
Chik FIR
Ex.A4
5
G.D. Carbon copy
Ex.ka4
6
Samples Stamp
Ex.ka6
7
Challan Naash
Ex.ka7
8
Letter D.M.
Ex.ka8
9
Letter CMO
Ex.ka9
10
Letter RI
Ex.ka10
11
Site plan of recovery of dead
body
Ex.ka11
12
GD Carbon
Ex.ka12
13
CDR
Ex.ka13
63
Lagayat
Ex.ka63
64
Site plan of the place
Ex.ka64
65
Copy of Register
Ex.ka65
66
Photograph of Tabbasum
Ex.ka66
67
Photograph of Jai Prakash
Ex.ka67
71
Charge sheet against Kallu
Mewati @ Daroga Khan
Ex.ka71

24. So far as the prosecution
witnesses are concerned as PW1 Qadir
Ahmad appeared in the witness box and
deposed that he knows accused Irshad son
of Nisar, however he does not know the
deceased Smt. Tabbasum @ Munni and he
is not aware as to whether the deceased
visited the house of accused Irshad. He has
further deposed that he is not conversant
with the fact as to whether before
25.4.2014 the deceased has visited the
house of Irshad. In fact according to him he
does not know the relatives of the
deceased.

25. Rafi Ahmad appeared as PW2 and
in his cross-examination, deposed that he
knows Irshad but he showed his ignorance
regarding deceased and he is not aware of
the fact as to whether the deceased had
visited the house of Irshad or not and he is
not knowing the relatives of the deceased.

26. As PW3 Tilak Ram entered into
the witness box and in his examination-inchief, he came up with a stand that he
neither knows deceased nor Jaiprakash the
first informant. He also showed his
ignorance regarding the fact that the
deceased was with Jai Prakash, however
according to him he found the dead-body of
woman and when he went near then he
could not recognise or identify the deadbody and he specifically stated that he had
not submitted application in police station
and the dead-body of the deceased was not
sealed in his presence and no photograph of
the same was clicked.

27. As PW4 Jai Prakash entered into
the witness box claiming himself to be the
9 All. State of U.P. Vs. Mahfooz & Ors.
1003
first informant and the husband of the
deceased wife casting allegations upon the
accused that on the date of the occurrence,
the accused who are 7 in number were
present. He has stated that he got married
with the deceased and due to the marriage
being interfaith marriage the accused boregrudge against him. According to PW4,
Kallu and Riyasat are not related to the
deceased but other five accused are related
and he further deposed that in connection
with their safety of life and they preferred
appropriate proceedings before the High
Court seeking interim protection and he on
25.4.2014 had gone from Bareilly to
Pilibhit and at about 5.00 in the evening in
Gram Labeda the accused Mahfooz, Abdul
Mazid, Mustkeem, Ayub, Irshad and others
while loaded with unauthorised weapons
forcibly abducted his wife and he had
proceeded to police station Hafizganj for
lodging written complaint but no action
was
taken
and
after
searching
the
whereabouts of the deceased, he could not
locate her and he received a phone call on
17.5.2014 from his wife and she apprised
that she was under death threat and she was
forcibly detained in a maternal uncle Irshad
master place in Barkheda and she was also
subjected to bad act and threatened to be
murdered. According to PW4 the said
information was received through mobile
no.8273025296. He accordingly contacted
the D.I.G. of Police while submitting
written complaint on 17.5.2014 under a
signature and then on 19.5.2014, first
information
report
had
been
lodged.
According to him his statements had been
received by the Investigating Officer and
on 20.5.2014 he received information that
his wife has been murdered and he also
received a phone call from the accused
Mahfooz from mobile no.9720493938
wherein he was apprised that they have
killed his wife. PW4 has further stated that
he was running coaching in the house of
Mahfooz wherein there are about 70
students whereat the deceased was also
student and after being in close relationship
they solemnized marriage on 18.12.2013.

28. PW5 Omkar also appeared as a
prosecution witness. He claims to have
witness the body of the deceased but he is
ignorant about the name of the deceased.
He further stated that he signed the
Panchayatnama.

29. PW6 Ravi Sharma has stated on
20.5.2014 near the drain the body of the
deceased was found along with slipper and
Dupatta and the villagers identified her to
be Smt. Tabbasum @ Munni.

30. Dr. Mahavir Singh appeared as
PW7 and according to him he is Senior
Consultant District Hospital, Pilibhit and he
conducted postmortem of the deceased on
20.5.2014. According to him the deceased
was possessed with certain marks with
suggested that she had died on account of
strangulation. According to PW7 the death
occurred two days prior to conducting
postmortem i.e. on18.5.2014.

31. As PW8 Roshan Lal retired HCP
appeared as prosecution witness and he
claims to have been posted in the police
station concerned and he on the directions
of SHO Sungarhi registered the FIR.

32. PW9 Bhuvenesh Kumar Gautam
appeared as a witness and proved the
Panchayatnama etc.

33. Atul Pradhan Inspector Crime
Branch,
Budaun
appeared
as
PW10
according to him he was posted as Incharge
Inspector and he conducted investigation
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared site plan and executed necessary
proceedings.

34. Mohd. Rizwan appeared as PW11,
he in his examination-in-chief has stated
that he knows Irshad Ahmad son of Nisar
Ahmad and the deceased also and she used
to the come to the house of Irshad. He
pleaded ignorance regarding the marriage
of the first informant with the deceased.

35. PW12 Zakir Hussain has stated
that he does not know the deceased and he
is not aware as to whether the deceased had
visited the house of Irshad between
25.4.2014 and 20.5.2014.

36. PW13 retired S.I. Phool Singh
stated that he was present when the
deceased was found in a drain in village
Gauhania and he had witnessed the
Panchyatnama.

37. PW14 Subeg Singh Siddhu stated
that he was at that point of time Circle
Officer, police station Pilibhit on the
written report dated 17.5.2014 so received
on 19.5.2014 for lodging FIR and directed
for conducting investigation.

38. PW15 Ramesh Saxena claimed
himself to be the Clerk in the police station,
he proved the lodging of the first
information report.

39. PW16 Inspector Brijesh Singh
appeared as prosecution witness, he claims
himself to prove call details (CDR).

40. PW17 Udai Shankar Singh claims
to have being the successor to conduct
investigation as according to him he took
the investigation from the stage which was
left by his predecessor.

41. PW18 S.I. Dalbir Singh in his
statement claimed that he had gone to the
house of Irshad to trace the deceased.

42. PW19 Siyaram in his crossexamination has stated that he is not aware
about the parentage of deceased and in his
presence no recovery was made and no
statement has been taken by the police.

43. PW20 Babu Baksh claim to be
doing
masonry
work
and
in
his
examination has stated that he is not
remembering as to whether he had visited
the place of Riyasat @ Mama for laying
down linter. He does not know the
deceased and he is not aware about the
same. He also denied giving any statement
under Section 161 Cr.P.C.

44. PW21 Nasir Ahmad in his crossexamination has stated that he does not
know Riyasat and he is not aware whether
plastering was done in his house. He does
not know the description of the girl and he
denies giving any statement under Section
161 Cr.P.C.

45. PW22 Nanhe Baksh appeared in
the prosecution box and according to him
he did not lay down linter with Babu Baksh
in the house of Riyasat @ Mama.

46. One Gopal Chandra Gupta PW23
appeared as a prosecution witness and he
stated that on 18.12.2013 the deceased got
married with the first informant, thus he
proved the marriage.

47. Mohd. Fahim PW24 also deposed
as a prosecution witness that he does not
know the deceased and he is not aware
whether she had eloped or not. He pleaded
ignorance regarding the recovery of the
9 All. State of U.P. Vs. Mahfooz & Ors.
1005
dead-body of the deceased as he was in his
house at that point of time and further he
stated that he has not given any statement
as stated by the prosecution.

48. Sanjiv Kumar Saxena PW25
appeared as a prosecution witness and he also
proved the marriage of the deceased with the
PW4 Jai Prakash.

49. PW26 Triloki Nath Mishra
appeared
as
prosecution
witness
and
according to him he is the Manager of the
Arya Samaz situate at Subhash Nagar and he
proved the marriage of the PW4 Jai Prakash
with the deceased.

50. PW27 Manoj Kumar appeared as a
prosecution witness and according to him he
is brother-in-law of the first informant and he
has deposed that on 25.4.2014 Jai Prakash
received call from Nand Gopal wherein the
person who called Jai Prakash had uttered
that Jai Prakash had taken a wrong decision
to marry with Tabbasum @ Munni. Thus, he
has supported the prosecution case.

51. Smt. Babli PW28 appeared as
prosecution witness and she stated that four
years ago i.e. the date of the incident Rajpal
and Meena Devi who happens to be their
relative had come at 6-7 in the evening along
with the first informant and she had cooked
food but they did not eat and as they were in
tension. However, she was not told about
Tabbasum @ Munni.

52. As PW29 Surendra Pratap Singh
appeared as a prosecution witness claiming to
be the Investigating Officer and according to
him he after conducting the investigation
submitted the charge sheet.

DISCUSSION AND FINDING

53. Undisputedly, the entire genesis of
the present case revolves around the fact
that the deceased, who happens to the wife
of the first informant, had gone with the
first informant on 25.4.2014 from Bareilly
to Pilibhit and about 5 p.m. in village
Laboda, Police Station Hafizganj, the
accused who were armed with unauthorised
weapons while exerting pressure abducted
his wife. According to the first informant
he had reported the said matter before the
police station Hafizganj, however no action
whatsoever have been taken and he
continuously kept on searching his wife
and when his wife was not traceable, he
approached the D.I.G. Police Bareilly
region, Bareilly while lodging its complaint
and then first information report has been
lodged on 19.5.2014 at 16.30 hours. The
said events find place in the first
information report which had been lodged
by the first informant who claims to be eyewitness of the said incident.

54. Notably, in the first information
report it has been further narrated that PW4
Jai Prakash received a phone call on
17.5.2014 from his wife that she was
suspecting danger to her life and she was
further subjected to bad act and the deceased
maternal uncle Irshad Master had kept her in
illegal confinement and the other accused
Mahfooz, Mustkeem, Abdul Mazid, Ayub
Mohammad and Irshad committed bad act
and specifically details of mobile number
being 8273025296 was mentioned. So much
so on 20.5.2014 the dead-body of the
deceased was found and accordingly a
written complaint was lodged by one Sri
Tilak Ram as alleged by the prosecution
wherein the nearby villagers identified the
deceased to be Tabbasum @ Munni.

55.

Record
reveals
that
on
22.5.2014
the
Investigating
Officer
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded the statement of the first
informant wherein the first informant
deposed that on 25.4.2014, the first
informant received a phone call from
Nand Lal Gautam, District President of a
political party in his mobile phone at
about 11.00 in the morning saying that
the phone caller belongs to the same
community and he wants to extend help
to the first informant. According to the
statement of the PW4 Jai Prakash the girl
fraction and the community to which she
belonged were quiet angry and lots of
pressure was being mounted upon and the
Ex. M.L.A. Arshad Khan, wanted to get
the matter pacified so as to eliminate the
chances of bloodshed in village Gauneri
Dan.

56. According to PW4 he on the
proposal of Nand Gopal Gautam agreed
however he is not aware mobile phone
number of Nand Gopal Gautam as the
sim card is not with him and he does not
remember the number. As per PW4 the
day was a Friday and after (the religious
prayer of the other community) he went
to the Satelite Bus Stand at 3.00 p.m. and
at that point of time Nand Gopal Gautam
came in white Marshal (four wheeler) in
which both Nand Gopal Gautam and Ex.
M.L.A. was sitting.

57. Further as per PW4 behind the
said four-wheeler, there was another fourwheeler being a white Maruti Car in
which the accused Kallu Mewati and the
brother of the deceased being Mahfooz,
Kallu and 2-3 persons was sitting. Even
according to PW4 behind the said fourwheeler, there was another four-wheeler
of green colour (Scorpio) in which the
brother of the deceased Mustakim, Ayub
and Abdul Mazid was sitting along with
Irshad and Riyasat @ Mama.

58. PW4 has also deposed that on the
Bareilly road while coming from Pilibhit
after crossing village Labeda in the four
wheeler of Nand Gopal Gupta, wherein the
first informant and the deceased were
sitting the accused Mahfooz and Kallu had
overtaken the four-wheeler and stationed it
in front of the four-wheeler in which the
first informant was sitting and then they
came out and forcibly took away the
deceased and put her in the their vehcile.
Thereafter Nand Gopal Gautam along with
the first informant came to Satelite
crossing. According to PW4 in the night of
the fateful day at 8-9 p.m. he proceeded to
police station Hafizganj for lodging FIR,
some constables were standing for over
there however no heed was made for
lodging FIR. PW4 Jai Prakash has further
stated that the accused did possess any
weapon with them but normally they keep
it in a concealed manner.

59. The Investigating Officer on
5.6.2014 again took the statement of the
PW4 Jai Prakash wherein PW4 deposed
that though he came to Satellite but before
that he went along with Nand Gopal
Gautam near Fun-city near one hospital
where his brother-in-law Manoj Kumar s/o
Ram Das r/o Nakatia, Police Station Cantt.
Bareilly was present.

60. As per PW4 he did not meet his
brother-in-law Manoj Kumar at an earlier
point of time while coming to Pilibhit as he
was
accompanied
with
Nand
Gopal
Gautam and his wife. PW4 further stated
that he had conversation with his brotherin-law for an half an hour and thereafter his
brother Rajpal also came and subsequently
he again went to Labeda along with his
brother Rajpal who was riding motorcycle
and in Labeda he left his brother-in-law and
along with his brother Rajpal in a
9 All. State of U.P. Vs. Mahfooz & Ors.
1007
motorcycle proceeded to his in-laws place
being Sri Baburam and stayed there for 3-4
days. However in his inner heart, he was
missing his wife and that is why he did not
give any statement earlier.

61. The aforesaid statement so made
by the first informant if put to conjoint
reading will show that the narration of facts
so made in the deposition so sought to be
made by the first informant on 22.5.2014
and 5.6.2014 does not find place in the first
information report which was lodged on
19.5.2004. It is not a case wherein the first
informant
is
not
an
eye-witness
as
according to the first informant PW4 he
claims to be the eye-witness and thus the
things which had happened on 25.4.2014
ought to have been not only immediately
reported before police station but also
narrated in the first information report.

62. So much so the inconsistency and
major contradictions so sought to be made
in the deposition by the PW4 being star
witness itself gets further highlighted from
the fact that a different story had been
narrated in the first information report so
lodged on 19.5.2014 wherein there was no
recital about the fact regarding receiving of
telephonic call by Nand Gopal Gautam and
with respect to role of Ex. MLA.

63. Even in a subsequent statement
dated 5.6.2014 another story is being
sought to be build up while coming up with
a stand that he met his brother-in-law
Manoj Kumar and Rajpal and further
proceeded to the in-laws place of his
brother whereat he stayed for 3-4 days.

64. The story so build up by the
prosecution upon the base so erected by
PW4
itself
demolishes
the
entire
prosecution case particularly when there
are major contradictions and improvement
sought to be made in this regard.

65.