# Suleman v. State of U.P

- **Citation:** (2012) 3 ILRA 1239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-08
- **Bench:** Arun Tandon, Vijay Prakash Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suleman-v-state-of-u-p-40311
- **Pages:** 5

## Headnote

Criminal Appeal-offence under section
302/504
I.P.C.-conviction
of
life
imprisonment with fine of Rs. 5000/-
challenged on ground of reaction of eye
witness-as "unusual" manner-held-could
not affect the prosecution story-nor the
conclusion drawn by Trail Court can be
questioned

Held: Para 25

We are also unable to accept the
contention of learned counsel for the
appellant that since Siyaram did not
make any attempt to save his cousin
brother
Balkishan;
Such
conduct
is
unnatural and therefore presence of
Siyaram at the time of incident becomes
doubtful.

Case Law Discussed:
2012 (5) SCC 738; 2012 (IV) SCC 124; 2012
(5) SCC 724

## Text

3 All] Suleman V. State of U.P
1239
status quo as exists on 1.8.2012 and also
restrained from transferring or alienating the
property in dispute for the aforesaid period
of three months or till the decision is taken
by opposite party no.3 whichever is earlier.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABD 08.10.2012

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE VIJAY PRAKASH PATHAK, J.

Criminal Appeal No. - 1780 Of 2003

Suleman

 ...Petitioner
Versus
State Of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Raj Kumar Khanna
Sri A.K.Pandey
Sri Braham Singh
Sri P.K. Pandey
Sri R.K.Pandey

Counsel for the Respondent:
A.G.A.

Criminal Appeal-offence under section
302/504
I.P.C.-conviction
of
life
imprisonment with fine of Rs. 5000/-
challenged on ground of reaction of eye
witness-as "unusual" manner-held-could
not affect the prosecution story-nor the
conclusion drawn by Trail Court can be
questioned

Held: Para 25

We are also unable to accept the
contention of learned counsel for the
appellant that since Siyaram did not
make any attempt to save his cousin
brother
Balkishan;
Such
conduct
is
unnatural and therefore presence of
Siyaram at the time of incident becomes
doubtful.

Case Law Discussed:
2012 (5) SCC 738; 2012 (IV) SCC 124; 2012
(5) SCC 724

(Delivered by Hon'ble Arun Tandon, J.)

1. This criminal appeal filed by the
appellant Suleman is directed against the
judgment and order of the Additional
Sessions Judge (Fast Track Court No.4),
District Moradabad dated 5.4.2003 passed
in S.T. No.745 of 2002 (State vs. Suleman)
arising out of Case Crime No.114 of 2001,
under sections 302/504 I.P.C. The appellant
Suleman has been convicted for an offence
punishable under section 302 I.P.C. and has
been sentenced to life imprisonment with
fine of Rs.5000/-, in case of default, the
appellant
is
to
undergo
additional
imprisonment of one year.

2. The prosecution story as disclosed
from the records is as follows:

On 29.8.2001 at 7.00 P.M. a first
information report was lodged by Chhote
elder brother of one Balkishan. In the first
information report it was stated that Siya
Ram P.W.2 cousin brother of the deceased
has informed that Balkishan has been done
to death by the appellant Suleman by
inflicting 5 to 6 wounds by hasiya at around
5 P.M. on the same day. The first
information report was registered as case
crime no.114 of 2001 under sections
302/504 I.P.C. at P.S. Bhojpur, district
Moradabad. The first information report
further disclosed that in the morning on the
same day Balkishan younger brother of
Chhote took his animals for grazing near the
bank of Dhela Nadi. By mistake the animals
entered the agricultural filed of Suleman,
causing annoyance to Suleman. Suleman
tried to get hold of Balkishan but could not
succeed. At around 5.00 P.M. Suleman
1240 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
could find Balkishan in the field of Mohd.
Nabi and killed him by inflicting wounds
through 'hasiya'. Such incident had been
seen by his cousin brother Siyaram and one
Mohd. Hussain of the same village. It was
stated that cousin brother did make an
attempt to save Balkishan, however, he
could not succeed. Suleman left after
assault. The deadbody of Balkishan was still
lying on the spot.

3. The investigating officer made spot
inspection and recorded the statement of the
informant under section 161 Cr.P.C. The
inquest was prepared on the same day. The
deadbody was sent by S.I. Umesh Kumar
Singh for postmortem examination.

4. Dr. Megh Singh (P.W.3) the
Medical Officer performed autopsy and
submitted his postmortem report. The antemortem injuries on the body of the deceased
as recorded in the postmortem report were
as as follows:

"1. Multiple stab wound, chest cavity
deep over an area of 8 c.m. x 8 c.m. over
front of left chest wall, 5 c.m. below left
nipple and 8 c.m. above the umbilicus.

2. Multiple stab wound in an area of 20
c.m x 15 c.m. chest and abdominal deep, 8
c.m. below right axilla and 6 c.m. above the
right iliac crest.

3. Stab wound 7 c.m. x 3 c.m.
abdominal cavity deep over left site of back
front of abdomen, 2 c.m. above the left iliac
crest and 20 c.m. below the right axilla.
Intestine is coming out.

4. Stab wound 4 c.m. x 2 c.m.,
abdominal cavity deep over the left site of
abdomen 10 c.m. lateral to umbilicus and 3
c.m. medial to injury no.3.

5. Stab wound 2 c.m. x 2 c.m. muscle
deep over lateral aspect of middle of left
thigh.

6. Inside wound 3 x 1 c.m. muscle
deep over front of right knee."

5. The weapon used for assault was
recovered on the pointing out of the accused
from the field. In respect thereof a seizure
memo was prepared by S.I. Umesh Kumar
Singh. The Investigating Officer prepared
the site plan and also collected blood
stained earth, which was sent for chemical
examination.

6. After completion of investigation,
charge sheet was submitted since the matter
was cognizable by Sessions Court it was
committed accordingly. Charge was framed
under the order dated 7.2.2002 under
section 302 I.P.C. against the accused.

7. The accused Suleman denied the
charge and claimed trial.

8. The informant Chhote was
examined as P.W.1. He proved written
information report and pointed out that
Siyaram his cousin brother had informed on
29.8.2001 that Balkishan had been done to
death by accused Suleman by inflicting 5 to
6 wounds by hasiya. The deadbody of
Balkishan was lying in the field of Mohd.
Nabi.

9. The eye witness Siyaram was
examined as P.W.2. In his testimony he
stated that he had gone for grazing of his
animals in the jungle. He was informed that
the animals of Balkishan had entered the
fields of Suleman in the morning which
annoyed him. At around 5.00 P.M. in the
evening Suleman caught hold of Balkishan
and inflicted 5 to 6 wounds by his hasiya
3 All] Suleman V. State of U.P
1241
which resulted in death of Balkishan. He
had made an attempt to save Balkishan but
could not succeed. On noticing that
Balkishan had expired, he went home. He
narrated the entire incident to Chhote, the
brother of Balkishan. He also stated that one
Mohd. Hussain had also witnessed the
entire incident. At the relevant time some
children were present.

10. Doctor Megh Singh, who
performed the postmortem was examined as
P.W.3. He proved the postmortem report
and opined that the cause of death of
Balkishan was due to bleeding and shock as
a result of wounds inflicted upon Balkishan
by a sharp edged weapon.

11. The Head Constable Bhagwan
Singh, who had recorded chik F.I.R. was
produced as P.W.4. He proved the same.

12. The Investigating Officer S.I.
Umesh Kuamr Singh was examined as
P.W.5. He proved the preparation of the site
plan, the seizure memo of the recovery of
the weapon i.e. hasiya used in the crime on
the pointing out of the accused and the
chargesheet.

13. The statement of the accused was
recorded under section 313 Cr.P.C. He
denied the charge and stated that he has
been falsely implicated due to enmity and
the statement made by the eye witnesses
was incorrect. However, he did not lead any
documentary or oral evidence in support of
his case.

14. The trial court after considering
the material evidence brought on record
came to a conclusion that the prosecution
had succeeded in bringing home the charge
beyond reasonable doubt against the
accused Suleman. Accordingly he was
convicted of an offence under section 302
I.P.C. and has been punished as aforesaid.

15. Challenging the order so passed,
learned counsel for the appellant contended
that informant Chhote P.W.1 is not an eye
witness and his testimony is based on the
information given by P.W. 2 Siyaram. The
presence of P.W.2 Siyaram at the site is
doubtful inasmuch as in his examination-inchief he stated that he had made an attempt
to save the deceased but in crossexamination it was stated that he did not
make any attempt to save the deceased. The
learned
counsel
submits
that
in
examination-in-chief P.W. 1 had stated that
information of the incident was given to
him by Siyaram P.W.2, who in his crossexamination as P.W. 2 stated that after
seeing the incident he went home. It is then
submitted that in his cross-examination
P.W.2 had stated that he did not meet the
investigating officer, therefore, the question
of his statement being recorded by the
investigating officer does not arise. It is
lastly contended that since no attempt was
made by Siyaram to save his cousin brother
Balkishan his conduct was unnatural,
therefore his presence at the time of incident
becomes doubtful. It is also submitted that
the alleged weapon 'hasiya' by which
injuries are said to be caused had been sent
for chemical examination alongwith earth
collected from the spot but no examination
report of the hasiya was brought on record.
Recovery of the weapon, hasiya is alleged
to have been made on the pointing out of
the accused-appellant but no witness as
mentioned in the recovery memo was
examined. The accused was not asked any
question under section 313 Cr.P.C. in
respect of the 'hasiya' and, therefore, there
has been violation of Section 313(1)(b)
Cr.P.C. The entire prosecution story must
fail.
1242 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

16. Reliance has been placed upon the
judgment of the Supreme Court in the case
of Latu Mahto vs. State of Bihar
reported in 2008 (Scale) V.8, page 715,
for
the
proposition
that
once
the
investigating officer had recorded the
statement of other witnesses, who were
present on the spot of the incident, namely,
Mohd. Hussain he should have produced
the said witness in support of the
prosecution failing which the case of the
prosecution must fail.

17. Learned A.G.A. Sri Mahendra
Singh Yadav pointed out that the F.I.R. was
lodged within 2 hours of the incident. The
distance of the police station from the place
of the incident was 5 kilometer. The
accused had been named in the F.I.R. The
weapon used for inflicting injuries had been
recovered on the pointing of the accused.
The occular evidence was fully supported
by the Medical evidence. The judgment of
the trial court in the facts and circumstances
of the case, needs no interference in
exercise of appellate jurisdiction by this
Court.

18.

We
have
considered
the
arguments of learned counsel for the parties
and examined the records.

19. At the very outset we may record
that the incident is stated to have taken
place at 5.00 P.M. The F.I.R. was lodged
within 2 hours of the alleged incident.
Therefore, the F.I.R. was prompt, which
rules out the possibility of deliberations and
wrongful implication of the accused.

20. We find that P.W. 1 in his crossexamination had stated that the deceased
was his cousin brother. He proved what was
recorded in the F.I.R. Siyaram was the eye
witness, he was examined as P.W.2. In his
testimony he had narrated the entire incident
which he had seen. His testimony was
corroborated by the medical evidence. It
was disclosed by P.W.2 that in the morning
the animals of Balkishan had entered the
fields of Suleman, which annoyed him.
Suleman was on the look out for Balkishan.
At 5.00 P.M. near the field of Mohd. Nabi,
Suleman could find Balkishan and attacked
him with his hasiya. He inflicted 5 to 6
wounds. The statement of eye witness of the
incident
has
been
corroborated
with
postmortem report which shows that six
injuries had been inflicted on the body of
the deceased with a sharp edged weapon
and that death was caused due to excess
bleeding and shock because of the injuries.
The postmortem report has been proved by
Dr. Megh Singh, who had examined the
injuries. We further find that recovery of
hasiya from the field of Mohd. Nabi was
made on the pointing out of the accused
himself.

21. We find that F.I.R. was prompt the
evidence of the eye witness has been
corroborated by the Medical evidence. The
prosecution has been able to prove its case
beyond reasonable doubt. Reference be had
to the judgment of the Apex Court in the
case of Atma Ram and others vs. State of
M.P. 2012(5) SCC 738.

22. The discrepancies in the statement
of P.W.2 in the matter of his having made
an attempt to save the victim is a minor
discrepancy, which cannot be said to be
fatal to the prosecution case.

23. Supreme Court in the case of
Sampath Kumar Vs. Inspector of Police,
Krishnagiri 2012 (IV) SCC 124 has held
that minor contradictions are bound to appear
in the statement of truthful witnesses as
3 All] Central Consumer Coop. Stores Ltd., Moradabad V. Vipin Kumar and another
1243
memory sometimes plays false, sense of
observation differs from person to person.

24. So far as the discrepancy pointed
out qua the P.W.2 having gone to his house
from the site of incident is contrary to what
was mentioned in the F.I.R. i.e. P.W.2 the
cousin of deceased had informed about the
incident and as was stated by P.W.1, in our
opinion in fact no contradiction at all.
Inasmuch as it is admitted that the informant
P.W.1 and eye witness P.W.2 are cousin
brothers and the accused has not pleaded that
they were living separately. The trial court
has rightly held that P.W.2 went to his house
to inform the incident to P.W.1.

25. We are also unable to accept the
contention of learned counsel for the
appellant that since Siyaram did not make
any attempt to save his cousin brother
Balkishan; Such conduct is unnatural and
therefore presence of Siyaram at the time of
incident becomes doubtful.

26. The Apex Court in the case of
Kathi Bharat Vajsur and Another Vs.
State of Gujrat 2012(5) SCC 724 has held
that it is not for the prosecution or Court to
go into question as to why an eye witnesses
reacted in particular manner or "unusual
manner". There is no fixed pattern of
reaction of an eye witnesses to a crime.
When faced with what is termed as "unusual
reaction" by an eye witnesses, court must
only examine whether prosecution story is in
any way affected with by such reaction and if
answer is in negative, then such reaction is
irrelevant.

27. Plea of non examination of the
witness of recovery memo of the weapon is
also of not much consequence as the
investigating officer had proved the seizure
memo and the recovery of the hasiya on the
pointing out by the accused. The testimony
of the investigating officer in respect of the
recovery and the seizure memo prepared
could not be dislodged. The last plea raised
about question being not put to the accused
about hasiya under section 313 Cr.P.C. is on
the face of it incorrect. The first question put
to the appellant under section 313 Cr.P.C.
especifically refers to the use of hasiya as the
weapon to assault the deceased.

28. We find no good reason to interfere
with the findings of guilty recorded by the
Trial Court on the basis of material evidence
on record.

29. The appeal is, therefore, dismissed.
The judgment and order of the Trail Court is
affirmed. The appellant is already in jail, he
shall serve out the sentence also as ordered
by trial court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 2727 of 2003

Central Consumer Coop. Stores Ltd.,
Moradabad

 ...Petitioner
Versus
Vipin Kumar & another ...Respondents

Counsel for the Petitioner:
Sri Santosh Kumar Pandey

Counsel for the Respondents:
Sri B. Dayal
S.C.

U.P.
Urban
Building
(Regulation
of
Letting rent & Eviction) Act 1972Section-2
(8)-petitioner
a
consumer
cooperative
society-not
owned
and
control by Government-can not be