# Sultan v. State

- **Citation:** (2022) 10 ILRA 614
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Jail Appeal No. 147 of 2012
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sultan-v-state-47767
- **Pages:** 14

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Sections 374(2) & 383 -
Indian Penal Code, 1860-Sections 302,
504 - Arms Act,1959 - Section 25challenge to-conviction-broad day light
murder-motive as well as direct evidence
of
two
eye-witnesses
available-
an
altercation took place between deceased
and appellant over the relationship of
appellant's wife with the deceased-both
the eye-witnesses PW-2 and PW-5 were
present at the place of occurrencerecovery as well as medical evidence fully
supported the prosecution version-PW-1,
PW-2 and PW-5 who being real brothers
and sister of the deceased are interested
witnesses, therefore, their testimony has
no value, does not inspire confidencethere is no bar in law on examining family
members
or
any
other
person
as
witnesses if they disclose truthful or
actual facts leading to the occurrence-It is
well settled that interested evidence is not
necessarily
unreliable
evidence-Hence,
Trial
court
rightly
convicted
the
accused.(Para 1 to 46)

The appeal is dismissed. (E-6)
List of Cases cited:

## Text

_Characters 0–39,874 of 45,430. This is a partial read: ask again with offset=39874 for what follows._

614 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 147 of 2012

Sultan ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Arvind Kumar Mishra, Sri
Gaurav Kakkar, Ms. Archana Singh (A.C.)

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Sections 374(2) & 383 -
Indian Penal Code, 1860-Sections 302,
504 - Arms Act,1959 - Section 25challenge to-conviction-broad day light
murder-motive as well as direct evidence
of
two
eye-witnesses
available-
an
altercation took place between deceased
and appellant over the relationship of
appellant's wife with the deceased-both
the eye-witnesses PW-2 and PW-5 were
present at the place of occurrencerecovery as well as medical evidence fully
supported the prosecution version-PW-1,
PW-2 and PW-5 who being real brothers
and sister of the deceased are interested
witnesses, therefore, their testimony has
no value, does not inspire confidencethere is no bar in law on examining family
members
or
any
other
person
as
witnesses if they disclose truthful or
actual facts leading to the occurrence-It is
well settled that interested evidence is not
necessarily
unreliable
evidence-Hence,
Trial
court
rightly
convicted
the
accused.(Para 1 to 46)

The appeal is dismissed. (E-6)
List of Cases cited:
1. Mekala Sivaiah Vs St. of A.P. (2022) SCC
Online SC 887

2. Kartik Malhar Vs St. of Bih. (1996) CRL, L.J.
889

3. St. of U.P. Vs Kishan Chand & ors. (2004) 7
SCC 629

4. St. of J & K Vs S. Mohan Singh & ors. (2006)
9 SCC 272

5. Namdeo Vs St. of Mah. (2007) 14 SCC 150

6. Shyam Babu Vs St. of U.P. (2012) AIR SC
3311

7. Kuna @ Sanjaya Behera Vs St. of Ori. (2017)
SCC Online SC 1336

8. Suresh Chandra Bahri Vs St. of Bih. (1995)
Supp 1 SCC 80

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal is by the
appellant-Sultan against the judgment and
order dated 5th October, 2011 passed by
the First Additional Sessions Judge,
Baghpat in Sessions Trial No. 132 of
2008 (State Vs. Sultan) arising out of
Crime No. 304 of 2007, under Sections
302,
504
I.P.C.,
Police
StationSinghawali Aheer, District Baghpat and
in Sessions Trial No. 133 of 2008 (State
Vs. Sultan) arising out of Crime No. 317
of 2007, under Section 25 Arms Act,
Police
Station-Singhawali
Aheer,
District-Baghpat, whereby the accusedappellant
has
been
convicted
and
sentenced
to
undergo
(i)
life
imprisonment for the offence under
Section 302 I.P.C. with a fine of Rs.
50,000/-, in default thereof, he has to
further undergo one year additional
10 All. Sultan Vs. State
615
simple imprisonment, (ii) six months
imprisonment for the offence under
Section 504 I.P.C. and (iii) one year for
the offence under Section 25 of the Arms
Act, that all the sentences were to run
concurrently.

2. We have heard Ms. Archana Singh,
learned Amicus Curiae on behalf of the
appellant and Mrs. Archana Singh, learned
A.G.A. for the State as also perused the
entire materials available on record.

3. The prosecution story, as transpired
from the records of the present appeal, is as
follows:

On the written report (ExhibitKa-1) given by the P.W.-1/informant
Aflatoon son of Bunddu Darji, a first
information report (Exhibit-Ka-4) has been
lodged on 3rd November, 2007 at 10:30
a.m. against the accused-appellant, which
was registered as Crime No. 304 of 2007
under Sections 302 and 504 I.P.C. In the
said report, it has been alleged that on 3rd
November, 2007 at about 09:00 a.m. in the
morning,
when
the
brother
of
the
informant, namely, Jamil was coming to his
house from Gher, on the way the accusedappellant met Jamil and said that he has
separated his wife from him and started
abusing him. After explaining that he is not
responsible for the same, he came to his
house. After that when the accusedappellant was on the roof of his house, he
asked Jamil to come to his roof stating that
his behavior with him earlier was wrong for
which he was apologizing. Believing the
accused Sultan, the brother of the informant
i.e. Jamil reached roof/terrace of one
Iliyash and the accused-appellant also came
to roof/terrace of Iliyash, where the
accused-appellant while talking him, took
out a Katta (country-made pistol) and shot
Jamil in his neck and fled. The time of
occurrence was 09:30 a.m. and at that time
the younger sister of the informant, namely,
Hazra also went behind his brother Jamil
on the terrace. The said incident occurred
in her presence. The younger brother of the
informant, namely, Vakeel had also seen
the incident. The dead body of the
informant was lying on the roof covered in
blood and he had come to the Police
Station for lodging the first information
report. On registration of the said case,
P.W.-6
Sub-Inspector
Rajeev
Kumar
Kaushik after mentioning the said report in
the General Diary, reached the place of
occurrence on the identification of the
informant. P.W.-6 has also recorded the
statement of the informant along with other
witnesses and prepared site plan. P.W.-6
has also recovered blood stained and plain
earth from the place of occurrence and
prepared recovery memo (Exhibit-Ka-12)
on the same day i.e. 3rd November, 2007.

4. The inquest of the deceased was
conducted on the same day at 1330 hours in
the presence of P.W.-6 and the statements
of witnesses were taken on the inquest
report (Exhibit-Ka-2) by P.W.-6. The
inquest witnesses opined that since the
cause of death of the deceased was due to
gun shot, the post-mortem was necessary.

5. Thereafter the dead body of the
deceased was sealed and sent to Mortuary.
The autopsy of the deceased was conducted
on the same day i.e. 3rd November, 2007 at
04:10 p.m. by Dr. Yatish Kumar (P.W.-3).
In the opinion of P.W.-3, the cause of death
of
deceased
Jamil
was
shock
and
haemorrhage due to following ante-mortem
injuries:

"(1) Gun shot wound of entry of
size 1.75 cm. x 1.5 cm. on right side of neck
616 INDIAN LAW REPORTS ALLAHABAD SERIES
just above the clavicle right side margins
everted, tattooing present on the right side
of the face and neck in the area of 13 cm x
11 cm.

(2) Gun shot wound of exist of
size 2.5 cm. x 2 cm on the back just medial
to right scapula upper inner border
margins everted.

Injury
no.1 and 2 are
correspond to each other by prolong on
resection blood vessels of right side of the
neck are damaged due to injury no.1"

6. The investigation proceeded and on
21st November, 2007, the accused-appellant
was arrested from the tube-well of one Mool
Chand Sharma and from whose possession a
country-made pistol 315 bore, two live
cartridges 315 bore and one empty cartridge of
315 bore have been recovered by the Police
and in that regard the arrest-cum-recovery
memo has been prepared by P.W.-5 (ExhibitKa-11).
After
completion
of
statutory
investigation in terms of Chapter XII Cr.P.C.,
the Investigating Officer submitted the chargesheet dated 2nd January, 2008 (Exhibit-Ka-13)
against the accused-appellant. The Magistrate
concerned took cognizance of the offence on
the charge-sheet and as the case was triable by
the court of sessions, committed the case to the
court of Sessions Judge resultantly, the same
were registered as Sessions Trial No. 132 of
2008 (State Vs. Sultan) arising out of Crime
No. 304 of 2007, under Sections 302, 504
I.P.C.,
Police
Station-Singhawali
Aheer,
District Baghpat and Sessions Trial No. 133 of
2008 (State Vs. Sultan) arising out of Crime
No. 317 of 2007, under Section 25 Arms Act,
Police Station-Singhawali Aheer, DistrictBaghpat.

7. On 3rd May, 2008, the learned
Trial Court framed following charges
against the accused-appellant for the
offence under Sections 302 and 504 I.P.C.:

"मै, ए .के.च िंह, प्रथम, अपर त्र
न्यायाधीश, बागपर्, आप ुल्ताि को चिम्न
आरोपो े आरोचपर् करर्ा हुँः-

1. यह चक चदिािंक 03.11.07 को
 मय 9.30 बजे ुबह, स्थाि, ग्राम रामिगर,
कस्बा व थािा च िंघावली अहीर, चजला बागपर्
के क्षेत्राचधकार मे आपिे वादी के िाई जमील की
गोली मारकर ाशय हत्या काररर् की और इ
प्रकार आपिे ऐ ा अपराध काया चकया है, जो चक
िा०द० िं० की धारा 302 के अधीि दण्डिीय है
और इ न्यायालय के प्र िंज्ञाि मे है।

2. यह चक उपरोक्त मय, चदिािंक व
स्थाि पर आपिे वादी के िाई जमील को इ
 ाशय े अपमाचिर् चकया चक ऐ े प्रकोपि े
वह लोक शाखन्त ििंग करेगा। इ प्रकार आपके
द्वारा ऐ ा अपराध काररर् चकया गया है, जो चक
िा०द० िं० की धारा 504 के अधीि दण्डिीय है
र्था इ न्यायालय के प्र िंज्ञाि मे है।

एर्द्द्वारा आपको चिदेचशर् चकया
जार्ा है चक आपके चवरूद्ध उक्त आरोपोिं का
चविारण इ न्यायालय द्वारा चकया जायेगा।"

8. On 3rd May, 2008, the court below
has framed charge against the accusedappellant for the offence under Section 25
of Arms Act. For ready reference, the same
reads as under:

"यह चक चदिािंक 21/11/07 को मय
करीब 20.15 बजे, स्थाि-ग्राम लुहारा े ग्राम
रामिगर कच्चा रास्ता मूल िन्द शमाा की ट्यूबैल
के पा जिंगल ग्राम रामिगर, थािा च िंघावली
अहीर, चजला बागपर् े थािा च िंघावली अहीर
की पुचल द्वारा आप पकिे गये र्था आपके
कब्जे े एक र्मिंिा 315 बोर, दो चजन्दा व एक
10 All. Sultan Vs. State
617
िोिा कारर्ू 315 बोर के िाजायज बरामद
हुये, चजिको अपिे पा रििे के चलये आपके
पा कोई वैधाचिक अचधकार अथवा लाई ें
िही था। इ प्रकार आपके द्वारा ऐ ा अपराध
काररर् चकया गया है, जो चक आयुद्ध अचधचियम
की धारा - 25/27 के अधीि दण्डिीय है र्था इ
न्यायालय के प्र िंज्ञाि में है।

9. In order to prove its case, the
prosecution also relied upon documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

"i). Written report dated 3rd
November, 2007 prepared on the dictation
of the informant-P.W.1 has been marked as
Exhibit Ka -1 ;

ii). The first information report
dated 3rd November, 2007 has been
marked as Exhibit Ka-4;

iii). The inquest report dated 3rd
November, 2007 has been marked as
Exhibit-Ka-2;

iv).
The
post-mortem/autopsy
report dated 3rd November, 2007 has been
marked as Exhibit-Ka-3;

v). Recovery memo of blood
stained earth and plain earth prepared on
3rd November, 2007 has been marked as
Exhibit Ka-12;

vi) Site plan with index;

vii). Recovery memo of countrymade pistol, empty cartridge and live
cartridges said to have been recovered on
21st November, 2009 has been marked as
Exhibit Ka-11; and

viii). Charge-sheet dated 2nd
January, 2008 has been marked as Exhibit
Ka-13."

10. The prosecution also examined
total nine witnesses in the following
manner:-

"i). P.W.-1/informant, namely,
Aflatoon, brother of the deceased Jamil;

ii). P.W.-2, namely, Vakil elder
brother of the deceased and informant, who
is alleged to be an eye-witness; ;

iii) P.W.-3, namely, Dr. Yatish
Kumar, who conducted autopsy of the
deceased;

iv)
P.W.-4,
namely,
Head
Constable-90 Ompal Singh, who proved
the chik first information;

v). P.W.-5, namely, Smt. Hazara
sister of deceased and informant, who is
also alleged to be an eye witness of the
incident;

vi).
P.W.-6,
namely,
SubInspector Rajiv Kumar Kuashik, who has
investigated the case;

vii).
P.W.-7,
namely,
SubInspector Kunwar Pal Singh, who has also
investigated the case after P.W.-6;

viii).
P.W.-8,
namely,
SubInspector Kapil Kumar Bhardwaj, who has
also investigated the case before P.W.-6;
and

ix). P.W.-9, namely, Constable1048 Kishan Singh, who has proved the
original copy of first information report.
618 INDIAN LAW REPORTS ALLAHABAD SERIES

11. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellant for confronting
with the same under Section 313 Cr.PC. In
their statement recorded U/s 313 Cr.P.C.
the
accused
appellant
denied
his
involvement in the commissioning of the
offence under Sections 302 and 504 I.P.C.
Accused appellant Sultan has specifically
stated before the trial court that he has been
falsely implicated in this case. He has
further stated that the statement of the
informant-P.W.-1 is false. Since P.W.-2 to
P.W.-3, are the family members of the
deceased and due to rivalry, they have
given false statements against the accusedappellant. He has further stated that since
P.W.-3
to
P.W.-7
are
government
employees, therefore, they have given false
statements against the accused-appellant.
Though it has been stated before the court
that evidence shall be produced in support
of the plea of the defence that the accusedappellant has been falsely implicated, but
no such evidence has been produced before
the conclusion of trial. No witness has been
adduced from the defence.

12. The trial court after relying upon
the evidence adduced by the prosecution
and recording its finding, has come to the
conclusion under the impugned judgment
of conviction that the prosecution has been
able to fully prove that the accusedappellant committed the murder of Jamil on
the roof of Iliyash. On the cumulative
strength of the aforesaid, the trial court has
held that the accused-appellant is guilty of
offence punishable under Sections 302
I.P.C. and 504 I.P.C. for the murder of the
deceased, namely, Jamil. As such, the trial
court convicted and sentenced the accusedappellant for the aforesaid offences. The
trial court has also held the accusedappellant guilty of the offence punishable
under Section 25 of the Arms Act. It is
against this judgment and order of
conviction passed by the trial court that the
present jail appeal has been filed on the
ground that conviction is against the weight
of evidence on record and against the law
and the sentence awarded to the accusedappellant is too severe.

13. Assailing the impugned judgment
and order of conviction, Ms. Archana
Singh, learned Amicus Curiae appearing
for the accused-appellant submits that the
entire prosecution version is based upon the
statement of P.W.-5. Since P.W.-5 in her
examination has stated that she is resident
of Police Station and District Baghpat,
whereas P.W.-1 who happens to be the real
brother of P.W.-5 has stated in his
examination that P.W.-5 is resident of
District-Ghaziabad,
therefore,
the
recognition of P.W.-5 is doubtful. Further
Ms. Singh submits that Nasiruddin, who is
an independent eye witness of the incident
and could narrate the incident correctly, has
not been adduced by the prosecution nor
any explanation in that regard has been
given by the prosecution. Next submission
is that only interested witnesses i.e. P.W.-1,
P.W.-2 and P.W.-5, who are real brothers
and sister of the deceased have been
adduced by the prosecution and no
independent witness has been adduced,
such evidence of prosecution has no value
under the Evidence Act. Argument is that
though the Investigating Officer (P.W.-6)
has prepared the site plan, but the trial court
has not examined the same correctly so as
to
reach
a
just
conclusion.
Further
argument is that nobody was present at the
place of incident, meaning thereby that
neither P.W.-2 nor P.W.5 saw the incident
with their own eyes. It is also urged that
since the deceased was a person with bad
character, as is evident from the cross-
10 All. Sultan Vs. State
619
examination of P.W.-1,P.W.2 and P.W.-5,
therefore, it is possible that his murder was
committed by someone else. There is no
single iota of evidence available on record
to prove the motive of the case.

On the cumulative strength of the
aforesaid, learned counsel appearing for the
accused-appellant
submits
that
the
impugned
judgment
and
order
of
conviction cannot legally be sustained and
is liable to be quashed.

14. On the other-hand, Mrs. Archana
Singh, learned A.G.A. for the State,
supporting the judgment and order of
conviction,
submits
that
the
first
information
report
has
been
lodged
promptly naming the accused person; there
is clinching evidence to support the
prosecution's case; the incident in which
the deceased Jamil is alleged to have been
murdered
by
the
accused-appellant,
occurred at 09:30 a.m. i.e. in broad day
light; there are two eye witnesses of the
alleged incident; the places of occurrence
has not been disputed by the defence; and
the accused-appellant has strong motive
and the same has also been explained by
the evidence of prosecution. Therefore, the
prosecution has proved the charge levelled
against
the
accused-appellant
beyond
reasonable doubt.

15.

To
bolster
the
aforesaid
submissions, learned A.G.A. has invited the
attention of the Court to the latest judgment
of the Apex Court in the case of Mekala
Sivaiah vs. State of Andhara Pradesh
reported in 2022 SCC Online SC 887,
whereby the Apex Court in paragraph
nos.25 and 26 has held as follows:

"25. The facts and evidence in
present
case
has
been
squarely
abefornalyzed by both Trial Court as well
the High Court and the same can be
summarized as follows:

i.
The
prosecution
has
discharged its duties in proving the guilt
of the appellant for the offence under
Section 302 I.P.C. beyond reasonable
doubt.

ii. When there is ample ocular
evidence
corroborated
by
medical
evidence, mere non-recovery of weapon
from the appellant would not materially
affect the case of the prosecution.

iii. If the testimony of an eye
witness is otherwise found trustworthy and
reliable, the same cannot be disbelieved
and rejected merely because certain
insignificant,
normal
or
natural
contradictions have appeared into his
testimony.

iv. The deceased has been
attacked by the appellant in broad daylight
and there is direct evidence available to
prove the same and the motive behind the
attack is also apparent considering there
was previous enmity between the appellant
and PW-1.

26. Having considered the
aforesaid facts of the present case in
juxtaposition with the judgments referred
to above and upon appreciation of
evidence of the eyewitnesses and other
material adduced by the prosecution, the
Trial Court as well as the High Court
were right in convicting the appellant for
the offence under Section 302 I.P.C.
Therefore, we do not find any ground
warranting interference with the findings of
the Trial Court and the High Court."

 (Emphasis added)
620 INDIAN LAW REPORTS ALLAHABAD SERIES

On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that as this is a case of direct
evidence, the impugned judgment and
order of conviction does not suffer from
any illegally and infirmity so as to warrant
any interference by this Court. As such the
present jail appeal filed by the accused
appellants who committed heinous crime
by murdering the deceased Jamil, is liable
to be dismissed.

16.

We
have
considered
the
submissions made by the learned counsel
for the parties and have examined the
original records of the court below as well
as the impugned judgment and order of
conviction challenged before us.

17. The only question which is
required to be addressed and determined in
this jail appeal is whether the conclusion of
guilt arrived at by the learned trial court
and the sentence awarded is legal and
sustainable under law and suffers from no
infirmity and perversity.

18. Before entering into the merits of
the case set up by the learned counsel for
the appellant and the learned A.G.A. for the
State qua impugned judgment and order of
conviction passed by the trial court referred
to above, it is desirable for us to record
statements of the prosecution witnesses in
brief.

19.

P.W.-1/Informant,
namely,
Aflatoon brother of the deceased has
reiterated the same facts as have been
narrated in the first information report and
in the statement recorded under Section
161 Cr.P.C. In his examination he has
stated that he did not see the incident, after
hearing gunshots he reached the place of
occurrence, where he saw that the deceased
was lying dead on the roof. He has further
stated that at the time of incident, P.W.-2
was standing on the ground below the roof
of Iliyash and P.W.-5 was standing on the
roof of her house. They saw the incident
with their own eyes. He has also stated that
the altercation which took place between
the accused-appellant and the deceased at
09:00 a.m. on the same day was seen by
him. It has also been stated that the name of
the wife of the accused-appellant is Hasina.
The accused-appellant has three children.
The accused-appellant got divorced from
his wife eight to nine months before the
incident. There is no relationship with
Hasina either of his family or himself nor is
there any reconciliation between their
family. He has also stated in his crossexamination that the Iliyash has two
houses. Iliyash lives in another house and
in the house of which roof the incident
occurred, he keeps his buffaloes. The house
of the accused is adjacent to the said house
of Iliyash. The roof of Iliyash's house is
below the roof of the accused's house but
the roofs of porches of their houses are
same
in
the
height.
In
the
crossexamination, P.W.-1 has stated that it is
wrong to say that Jamil used to flirt with
Ilyash's wife and because of that flirting,
Iliyash got Jamil killed by unknown people.

20. P.W.-2 Vakil has stated that the
deceased Jamil was his younger brother.
Accused-appellant is his cousin brother
(son of sister of his father). The accused
appellant was having quarrel with his wife
Haseena. There was no relation between
the deceased Jamil and Haseena but the
accused-appellant used to think that his
wife Haseena had illegitimate relation with
the deceased. On 21st October, 2007, the
deceased got married and in the said
marriage Rukhsana, brother in law's wife
(sarhaj) of his brother Ali Sher had come.
10 All. Sultan Vs. State
621
The accused-appellant thought that she is
his wife Haseena. On 02.11.07, the
accused-appellant came to his house and
asked his father to get his wife Haseena and
in reply the father of P.W.-2 told him that
when he has divorced his wife six to eight
months ago, why would she come now.
After that the accused-appellant went back
to his house. On 03.11.07, the brother of
P.W.-2, namely, Jamil was going to his
house, then on the way the accusedappellant met him and asked the deceased
to get his wife or else it will not be good.
On the persuasion of the deceased, the
accused-appellant went back. However, at
9:30 a.m. in the morning, when P.W.-2, the
deceased and P.W.-5 were standing on the
vacant land in front of their house the
accused-appellant came on his terrace and
told the deceased that as the deceased was
son of his maternal uncle and he
misbehaved with him, he asked the
deceased to come on his terrace expressing
remarks. Hearing this, the deceased went to
the roof of accused-appellant. When the
deceased was two steps away from
accused-appellant, he took out the country
made pistol (katta) while threatening.
Seeing the pistol, the deceased tried to turn
back and run away, then the accusedappellant shot the deceased which hit him
in the back of the neck and he died on the
spot. On hearing the sound of bullet, when
he reached the terrace, and that he saw the
accused-appellant
running
away
after
shooting
him.
The
accused-appellant
stepped out of his house and ran away. In
the cross-examination, P.W.-2 has stated
that about the incident, his statement has
been recorded by the Investigating Officer.
He has further stated that the accusedappellant thought that the deceased had
illegitimate
relations
with
his
wife
Haseena. P.W.-2 has also denied in his
cross-examination that the deceased was
murdered by unidentified persons because
of his vagabondage and that the accusedappellant has been falsely implicated with
the intention of grabbing money.

21. P.W.-3 who conducted the
autopsy of the deceased, has stated that the
injury No.2- found on the body of the
deceased was gunshot wound of exit of size
2.5cm x 2cm on the back just medial to
scapula
upper
inner border,
margins
everted. He has further stated that inquiry
No.1 and No.2 are correspond to each
other. Blood vessels of right side of the
neck are found to be damaged at the
incision of the wound. Further he has
submitted that on internal examination,
large vessels of blood were found mutilated
on the right side of the neck of the dead
body. The cause of death of the dead body
is likely to be about (6) six hours before the
time of post-mortem due to excessive
trauma and bleeding. P.W.3 has proved the
autopsy report which has been marked as
Exhibit-Ka-3. Lastly, P.W.-3 has stated that
the deceased was hit by the bullet from the
front right side.

22. P.W.-4 Head Constable-90 Ompal
Singh has stated that he has written the first
information report and he has also proved
the chik first information report before the
court below.

23. P.W.-5 Hazara has stated in her
examination that on the day of the incident,
at around nine o'clock in the morning, the
accused-appellant had called his brother i.e.
deceased from his terrace and the deceased
went to Iliyas's terrace and that she also
went there with him. The accused-appellant
had also come from his roof to the terrace
of Iliyas. After coming there, the accusedappellant said the deceased that due to his
behaviour he suffered a lot earlier but will
622 INDIAN LAW REPORTS ALLAHABAD SERIES
not suffer more. After saying this, the
accused-appellant took out a country made
pistol and shot the deceased and that the
deceased had died after being shot. He was
shot in the lower part of his right neck and
after shooting him, Sultan fled from the
spot. P.W.-5 has further stated that she used
to go to her maternal home mostly for a day
or two as her children were in school. She
has further stated that she and the deceased
were present at home for almost an hour on
the day of the incident. When the accusedappellant called her brother i.e. the
deceased from the terrace, she did not stop
him. She was two steps away from the
deceased when he was shot. The accusedappellant shot the deceased from a distance
of two steps. The deceased was standing
with his hands folded when the bullet was
fired. The accused-appellant had shot
saying that earlier he (deceased) was saved
and he will not leave him today. The
deceased had fallen as soon as he was shot.
P.W.-5 could not save him as she was
behind while shooting. The deceased died
after falling. The head of the deceased was
towards the west and the feet were towards
the east. The deceased was wearing a grey
colored pant. P.W.-5 has also stated that
her brother i.e. informant went to Baghpat
on the day of the incident. She has also
stated that her statement has been recorded
by the Investigating Officer. P.W.-5 has
again stated that the accused-appellant from
a height of one yard, shot the deceased.

24. P.W.-6 Sub-Inspector Rajiv
Kumar
Kaushik,
who
has
initially
investigated the case, has stated that on an
information of an informer, he along with
other Police personnels and informant
reached the Tube-well of one Mool Chand
Sharma, where the accused-appellant was
hiding and arrested him. P.W.-6 has further
stated that one country-made pistol of 315
bore, one empty cartridge and two live
cartridges of 315 bore have also been
recovered from his possession. P.W.-6 has
also prepared Arrest and Recovery memo
which has been marked as Exhibit-Ka-11.
He has further stated that the recovery
memo of plain and blood stained soil
collected from the spot by him has been
prepared by him as Exhibit-Ka 12. P.W.-6
has also proved the site plan prepared by
him. He has then stated that the roofs of the
accused-appellant and the house Iliyas have
been found to be adjoining.

25. P.W.-7 Sub-Inspector Kunwar Pal
Singh who has investigated the case after
P.W.-6, has proved the charge-sheet. P.W.-
8 Sub-Inspector Kapil Kumar Bhardwaj,
who has investigated the case under
Section 25 Arms Act and submitted the
charge-sheet before the court below and
proved the same as P.W.8.

26. From the testimony of the
aforesaid nine prosecution witnesses, it is
apparently clear that there are two eye
witnesses of murder of the deceased Jamil,
namely, Vakil (P.W.-2) and Smt. Hazra
(P.W.-5) and they have fully supported the
prosecution version. It is no doubt true that
they being brother and sister of informant
and deceased, are interested witnesses but
their consistent statements made under
Section 161 Cr.P.C., in their examinationin-chief as well as in their crossexamination, cannot be discredited only on
the
ground
that
they
are
interested
witnesses. The same is required to be read
as a whole prosecution evidence i.e.
autopsy report, police reports including
recovery memo of arrest of the accusedappellant, country-made pistol of 315 bore,
one empty cartridge and two live cartridges
of 315 bore from his possession and the site
plan of the spot etc.
10 All. Sultan Vs. State
623

27. For examining the correctness or
otherwise of the judgment and order of
conviction, the version of prosecution as
well as defence and the submissions made
by the learned counsel for the parties, it is
necessary for us to refer certain case laws
laid down by the Apex Court on the
subject.

28. In the case of Kartik Malhar V
State of Bihar reported in 1996 CRL. L.J.
889, the 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
witness, should not be relied upon, has no
substance. This theory was repelled by this
Court as early as in Dalip Singh's case,
AIR 1953 SC 364 in which this Court
expressed its surprise over the impression
which prevailed in the minds of the
members of the Bar that relatives were not
independent witnesses."

29. The Apex Court in the case of
State of U.P. Vs. Kishan Chand &
Others reported in (2004) 7 SCC 629, has
opined that just because the witnesses are
related to the deceased would be no ground
to discard their testimony, if otherwise,
their
testimony
inspire
confidence.
(Reference-paragraph nos. 9 and 10 of the
aforesaid judgment of the Apex Court).

30. The Apex Court in the case of
State of Jammu and Kashmir vs. S.
Mohan Singh & Others reported in (2006)
9 SCC 272, the Apex Court has observed
that it is well settled that in a murder trial,
merely because a witness is interested or
inimical, his evidence cannot be broadly
discarded unless the same is otherwise
found to be not trustworthy. In the said
case, the view of the Apex Court was that
the evidence of these two witnesses is
credible more so when witness Ram Lal
received injuries. For ready reference,
relevant paragraph of the said judgment
reads as follows:

"Other two eyewitnesses are the
informant Ram Lal and his brother Babu
Ram. Ram Lal is father of deceased Yush
Paul Singh whereas witness Babu Ram is
uncle of deceased Yush Paul Singh. These
two
witnesses
have
supported
the
prosecution case disclosed in the first
information
report
in
all
material
particulars and consistently stated that
respondent No. 1 caught hold of the
deceased and respondent No. 2 inflicted
injuries upon him with knife. We have been
taken through the evidence of these two
eyewitnesses in extenso. Their evidence is
quite consistent, natural and both the
witnesses have stood the test of lengthy
cross-examination broadby the defence.
Out of these two witnesses, Ram Lal was
the informant and an injured witness as the
doctor who examined him on the date of
occurrence itself found that he received
injuries by hurling of stone. Nothing could
be pointed out on behalf of defence to show
that the evidence of these two eyewitnesses
is not credible, excepting this that they
were interested witnesses. The High Court
was not justified in disbelieving them on the
sole ground that they were interested
persons. It is well settled that in a murder
trial,
merely
because
a
witness
is
interested or inimical, his evidence cannot
be discarded unless the same is otherwise
found to be not trustworthy. In the present
case, we are of the view that the evidence
of these two witnesses is credible more so
when
witness
Ram
Lal
received
injuries......"

(Emphasis added.)
624 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Further in Namdeo V State of
Maharashtra, reported in (2007) 14 SCC
150, the Apex Court held as under:-

"In the leading case of Shivaji
Sahebrao vs. State of Maharashtra, (1973) 2
SCC 793, this Court held that even where a
case hangs on the evidence of a single eye
witness it may be enough to sustain the
conviction given sterling testimony of a
competent, honest man although as a rule of
prudence courts call for corroboration. "It is
a platitude to say that witnesses have to be
weighed and not counted since quality
matters more than quantity in human
affairs."In Anil Phukan Vs. State of Assam,
(1993) 3 SCC 282 : JT 1993 (2) SC 290, the
Court observed; "Indeed, conviction can be
based on the testimony of a single eye witness
and there is no rule of law or evidence which
says to the contrary provided the sole witness
passes the test of reliability. So long as the
single eyewitness is a wholly reliable witness
the courts have no difficulty in basing
conviction on his testimony alone. However,
where the single eye witness is not found to
be a wholly reliable witness, in the sense that
there are some circumstances which may
show that he could have an interest in the
prosecution, then the courts generally insist
upon some independent corroboration of his
testimony, in material particulars, before
recording conviction. It is only when the
courts find that the single eye witness is a
wholly unreliable witness that his testimony is
discarded in toto and no amount of
corroboration can cure that defect."

32. In the case of Shyam Babu V
State of UP reported in AIR 2012 SC
3311, The Apex Court has held as under:-

"Where the presence of the eyewitnesses is proved to be natural and their
statements
are
nothing
but
truthful
disclosure of actual facts leading to the
occurrence, it will not be permissible for
the Court to discard the statement of such
related or friendly witnesses. There is no
bar in law on examining family members or
any other person as witnesses. In fact, in
cases involving family members of both
sides, it is a member of the family or a
friend who comes to rescue the injured. If
the statement of witnesses, who are
relatives or known to the parties affected is
credible,
reliable,
trustworthy
and
corroborated by other witnesses, there
would hardly be any reason for the court to
reject such evidence merely on the ground
that the witness was a family member or an
interested witness or a person known to the
affected party or friend etc"

33. It has again been observed by the
Apex Court in the case of Kuna @
Sanjaya Behera V State of Orrisa,
reported in 2017 SCC Online Supreme
Court 1336 that the conviction can be
based on the testimony of single eye
witness if he or she passes the test of
reliability and that it is not the number of
witnesses but the quality of evidence that is
important.

34. From the above mentioned
pronouncements of the Apex Court, it is
apparently clear that the evidence of
interested or inimical witnesses is to be
scrutinised with care but can not be rejected
merely on the ground of being a partisan
evidence. If on a perusal of the evidence
the Court is satisfied that the evidence is
creditworthy there is no bar in relying on
the said evidence. It is well settled that
interested evidence is not necessarily
unreliable evidence. All that is necessary is
that the evidence of interested witnesses
should be subjected to careful scrutiny and
accepted with caution. Thus, the evidence
10 All. Sultan Vs. State
625
cannot be disbelieved merely on the ground
that the witnesses are related to each other
or to the deceased. In case the evidence has
a ring of truth to it, is cogent, credible and
trustworthy, it can, and certainly should, be
relied upon.

35. It is settled law that in case of
direct evidence the motive would not be
relevant and only in case of circumstantial
evidence,
motive
assumes
great
significance. In a case in which the
evidence is clear and unambiguous and the
circumstances proved the guilt of the
accused, the same would not get weakened
even if the motive is not a very strong one.
The motive loses all its importance in a
case where direct evidence of eye witnesses
is available.

36. In Suresh Chandra Bahri Vs.
State of Bihar reported in 1995 Supp (1)
SCC 80, the Apex Court has opined that a
motive is something which prompts a
person to form an opinion or intention to do
certain illegal act or even a legal act but
with proof of motive for the commission of
the crime it affords added support to the
finding of the court that the accused was
guilty of the offence charged with.

37. In the present case motive as well
as direct evidence of two eye witnesses i.e.
P.W.-2 and P.W.5 are available. From the
records, it is apparent that before half an
hour i.e. at about 09:00 a.m. on the date of
incident, an altercation took place between
the deceased Jamil and the accusedappellant in which the accused-appellant
also abused Jamil on the ground that the
accused-appellant suspected that his wife
Haseena had love affair with the deceased
and that is why she took divorce from him
and the said relationship between his wife
and the deceased was still continued. For
the said reason the accused-appellant was
angry with the deceased and wanted to take
revenge from him. Therefore, it is clear that
the accused-appellant had the motive to
murder the deceased.

38. Before coming to the conclusion,
it is necessary for us to deal with the
submissions made by the learned Amicus
Curiae, appearing for the accused-appellant
and the learned A.G.A. for the State for
litmus test. The first submission that the
presence of P.W.-5 sister of deceased and
informant is doubtful when as a matter of
fact, the entire prosecution case is based on
her statement, does not appeal to us. We
may record that in the examination in chief
as well as in the cross-examination, P.W.-5
has stated that she used to go to her
maternal home mostly for a day or two
days as her children were studying in
school. The said submission has also been
supported by P.W.-2. She has further stated
that at the time of incident, informant was
not present as he went to Baghpat and just
after the incident, he reached the spot. The
same version is also reiterated by P.W.-2.
The other evidence also supports the
presence of P.W.-5 at the time and place of
incident.

39. The next submission made by the
learned counsel for the appellant that one
Nasiruddin who is an independent witness
of incident, who could narrate the correct
facts regarding incident, has not been
adduced by the prosecution nor any
explanation has given for the same by the
prosecution, also does not appeal to us. If it
is assumed as per the defence that that
Nasiruddin is an independent witness of the
incident but if he does not want to testify
then he cannot be compelled to testify.
Even
if
the
defence
believed
that
Nasiruddin was an independent witness
626 INDIAN LAW REPORTS ALLAHABAD SERIES
who could give correct information about
the incident, during the course of trial, the
defence should have adduced him as
defence witness but it failed to do the same.

40 The submission of the learned
Amicus Curiae that since the P.W.-1, P.W.-
2 and P.W.-5, who being real brothers and
sister of the deceased, are interested
witnesses, therefore, their testimony has no
value, does not inspire confidence. It is no
doubt true that the informant-P.W.-1 and
eye witnesses i.e.