# Tayyab & Anr v. State of U.P. Opp. Party

- **Citation:** (2022) 12 ILRA 1028
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-22
- **Case number:** Criminal Appeal No. 5705 of 2013
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tayyab-anr-v-state-of-u-p-opp-party-47987
- **Pages:** 17

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is not the obligation of the
defence to prove its version beyond
reasonable doubt, rather, the limited
requirement on its part is to probablise it.
It is the prosecution case which is on trial
and not the defence-The injuries on three
sisters
Km.
Fatima,
Shabana
and
Tabassum as also the statement of
Investigating Officer that he had heard
that the ladies in the accused house also
sustained injuries coupled with fact that
they were medically examined on the
same night at about 11.00 pm and their
injuries have been proved by PW-3
clearly supports the defence case. The
statement of DW-1 that she caused a
knife blow from behind on Minzar while
he was trying to grab Shabana also finds
corroboration from the injuries shown on
Minzar i.e. in the back lumbar area. We
are, therefore, of the view that the
defence version has been successfully
probalised. The prosecution has also
failed to explain the injuries suffered by
12 All. Tayyab & Anr. Vs. State of U.P.
1029
the three sisters of accused appellants-
The failure of prosecution to explain the
genesis and origin of the occurrence
has the effect of prosecution failing to
bring on record the correct version of
event.

Settled law that where the prosecution fails to
explain the genesis and origin of the occurrence
as well as the injuries on the side of the accused
and where the version of the defence is found
to be probable, then the story of the
prosecution cannot be relied upon.

Criminal Appeal allowed. (E-3) (Para 46,
53, 54, 56, 60)

Case
Law/
Judgements
relied
upon/
cited:-

## Text

_Characters 0–39,957 of 57,839. This is a partial read: ask again with offset=39957 for what follows._

1028 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The appellant has brought on
record the evidence of P.W.2 before the
Juvenile Justice Board by way of additional
evidence under Section 391 of Cr.P.C. in
which she has categorically denied that she
had seen any of the accused killing her
husband, Ashok Kumar. She has further
stated that she was at home when the
incident occurred and people of the village
had informed her that her husband was
killed by some other people.

18. This evidence is enough for us to
come to the conclusion that the accusedSuresh has been wrongly roped into this case
because of earlier enmity though it is
submitted that accident occurred while the bus
was passing by, but, neither the driver of the
bus nor any passenger was examined. The
recoveries were also not at the instance of
accused-appellant. P.W.6, Sansar Singh Rathi
who had drawn the site plan had not shown
that the accused-appellant was carrying any
weapon with him.

19. Hence, while going through the factual
data and the evidence produced by way of
application under Section 391 of Cr.P.C., we are
convinced that the conviction of accusedappellant is liable to be set aside.

20. In view of the above, accusedappellant, Suresh, is acquitted of the offences
alleged against him. The order of conviction
& sentence passed by the learned Sessions
Judge is set aside. The accused-appellant,
Suresh, be set free forthwith if not warranted
in any other offence.

21. Record and proceedings be sent
back to the Trial Court forthwith.

22. This appeal is, accordingly,
allowed.
----------
(2022) 12 ILRA 1028
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

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

Criminal Appeal No. 5705 of 2013
connected with
Criminal Appeals No. 324 of 2014 & 362 of 2014

Tayyab & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Salman Ahmad, Sri Atharva Dixit, Sri Rajiv
Lochan Shukla, Sri Vijay Kumar Dwivedi

Counsel for the Respondent:
Govt. Advocate, Sri Amit Kr. Srivastava, Sri
Shams Tabrez, Sri Abhisht Jaiswal, Sri Atharva
Dixit, Sri Manish Tiwary(Sr. Advocate)

Criminal Law- Indian Evidence Act, 1872-
Section 3- It is not the obligation of the
defence to prove its version beyond
reasonable doubt, rather, the limited
requirement on its part is to probablise it.
It is the prosecution case which is on trial
and not the defence-The injuries on three
sisters
Km.
Fatima,
Shabana
and
Tabassum as also the statement of
Investigating Officer that he had heard
that the ladies in the accused house also
sustained injuries coupled with fact that
they were medically examined on the
same night at about 11.00 pm and their
injuries have been proved by PW-3
clearly supports the defence case. The
statement of DW-1 that she caused a
knife blow from behind on Minzar while
he was trying to grab Shabana also finds
corroboration from the injuries shown on
Minzar i.e. in the back lumbar area. We
are, therefore, of the view that the
defence version has been successfully
probalised. The prosecution has also
failed to explain the injuries suffered by
12 All. Tayyab & Anr. Vs. State of U.P.
1029
the three sisters of accused appellants-
The failure of prosecution to explain the
genesis and origin of the occurrence
has the effect of prosecution failing to
bring on record the correct version of
event.

Settled law that where the prosecution fails to
explain the genesis and origin of the occurrence
as well as the injuries on the side of the accused
and where the version of the defence is found
to be probable, then the story of the
prosecution cannot be relied upon.

Criminal Appeal allowed. (E-3) (Para 46,
53, 54, 56, 60)

Case
Law/
Judgements
relied
upon/
cited:-

1. Suchand Pal Vs Phani Pal, 2003 (11) SCC 527
(cited)

2.Vijay Narain Mishra Vs St. of U.P., 2013 0
Supreme (All) 1913(cited)

3.Balwan Singh Vs St. of Har., 2005 3 Supreme
(SC) 740 (relied)

4.Ganesh Datt Vs St. of UK, 2014 0 Supreme
(SC) 457(cited)

5.Sanjay Sharma Vs St. of U.P., Crl. Appeal
No.3667 of 2018, decided on 24.12.2021(All.)

6. Sukhendra Singh Vs St. of M.P, 2017 SCC
OnLine MP 1138(cited)

7. Jagdish Narain & anr. Vs St. of U.P., (1996) 8
SCC 199(cited)

8. Shivanna Vs St. by Hunsur Town Police,
(2010) 15 SCC 91(cited)

9. Tori Singh & anr. Vs St. of U.P, (1962) 3 SCR
580(cited)

10. Ganga Singh Vs St. of M.P, (2013) 7 SCC
278(cited)

11. Jai Prakash Vs St. of U.P & ors, (2020) 17
SCC 632(cited)
12. Hema Vs St. thru Inspr. of Police, Madras,
(2013) 10 SCC 192(cited)

13. Ram Bali Vs St. of U.P., (2004) 10 SCC
598(cited)

14. Ramanand alias Nandlal Bharti Vs St. of U.P.,
(2022) SCC Online SC 1396 ( relied)

(Delivered by The Hon'ble Ashwani
Kumar Mishra, J.)

1. Criminal Appeal Nos. 5705 of 2013
(Tayyab & Tahir vs. State of U.P.), 324 of
2014 (Waheed Ahmad vs. State of U.P.) and
362 of 2014 (Iqbal vs. State of U.P.) are
directed against the judgment and order
dated 27.11.2013, passed by Additional
Session Judge/Special Judge (E.C. Act),
Bareilly in Session Trial No.345 of 2009
(State vs. Tahir and others), arising out of
Case Crime No.76 of 2009 under Sections
323/34, 324/34, 302/34, 504 and 506(2)
IPC,
Police
Station
Bahedi,
District
Bareilly, whereby accused appellants have
been convicted and sentenced to undergo
one year imprisonment under section
323/34 IPC; two year imprisonment under
section 324/34 IPC; and life imprisonment
under section 302/34 IPC with fine of
Rs.10,000/- each and in default of fine the
accused appellants are to further undergo
one year additional imprisonment. All the
sentences are to run concurrently and half
of the fine is directed to be paid to the
nearest relative of deceased Minzar.

2. Prosecution case in this case
proceeds upon a written report of first
informant Mohd. Arif (PW-1) alleging that
on 17.01.2009, at about 08.45 PM, he was
going towards Majar of Maula Shah Miyan
when accused Tahir on a motorcycle kicked
him and on his objection hurled filthy
abuses and also threatened him. On his
return when he reached Hauli Chauraha he
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
found that the accused Tahir alongwith his real
brothers Iqbal and Tayyab and cousin Wahid
Ahmad were waiting, armed with pistol,
sword, kanta and lathi (wooden log) and on
seeing him the accused Iqbal exhorted that kill
the informant. Accused persons started
assaulting the informant with the pistol grip
and lathi (wooden log) and on hearing his cries
the informant's brother Minzar and Ashraf
came and saved him, whereafter accused
persons took Minzar and Ashraf inside their
house and with an intent to kill them started
assaulting them with sword and kanta and
accused Tahir fired from his pistol but the
bullet missed. Minzar and Ashraf suffered
injuries from sword and kanta and the accused
persons left them in the nearby lane presuming
them to be dead. The entire incident was seen
in the tube-light by the informant and that his
brothers are in serious condition.

3. On the basis of aforesaid written report
(Ex.Ka.1)
the
First
Information
Report
(Ex.Ka.7) came to be registered as Case Crime
No.76 of 2009 under Sections 323/34, 324/34,
302/34, 504 and 506(2) IPC, Police Station
Bahedi, District Bareilly on 17.01.2009 at 09.10
PM. The injured Minzar was sent to the
Community Health Centre for his medical
examination alongwith Chitthi Majroobi with
Home Guard Dwarika Prasad. The Medical
Officer (PW-3) examined the injured Minzar on
17.01.2009 at 09.30 PM and found following
injuries on him:-

"An incised wound 8cm x 3cm Not
probed on the left side back of abdomen (in
the loin region) margins are clear, regular,
fresh blood oozing present. Pulse weak,
B.P. note recordable respiration- in gasping
condition, G.C. Low, altered sesnsorium."

In the opinion of Medical Officer the
injuries were to be kept under observation
and were caused by a sharp object and were
fresh injuries. The injured was referred to
District Hospital where he died soon
thereafter. The information regarding his
death was sent to the nearest Police Station
at 00.15 AM on 18.01.2009. Inquest
proceedings commenced at 11.30 AM and
concluded at 12.20 PM at the District
Hospital itself. The first informant Mohd.
Arif was one of the inquest witnesses and
in the opinion of inquest witnesses the
deceased Minzar died on account of
injuries sustained on his back and to know
the cause of death his postmortem be got
conducted. The body of the deceased
Minzar
was
sealed
and
sent
for
postmortem. The postmortem (Ex.Ka.5) of
the deceased has been conducted by Dr. K.
K. Mishra (PW-5) at 02.15 PM on
18.01.2009 and the cause of death has been
determined as shock and haemorrhage due
to ante-mortem stab wound injury. The
injuries found during postmortem are as
under:-

"Incised wound 8cm x 3cm x body
cavity deep 18cm below the left scapula
over back lumbar area underneath rib is
also cut down"

4. The first informant Mohd. Arif and
his brother Mohd. Ashraf were also sent to
Community Health Centre, Bahedi for their
medical examination on the next day i.e. on
18.01.2009. They have been medically
examined at 10.15 AM and their injury
reports are also part of the record and their
injuries are as under:-

"Injuries of Mohd. Arif

1. Abrasion 1cm x .5cm on mid part of
upper lip. Colour Red.

2. Abrasion 3cm x 2cm on anterior
surface of neck. 3cm above supra sternal
notch. Colour Red.
12 All. Tayyab & Anr. Vs. State of U.P.
1031

Injuries of Mohd. Ashraf

1. Incised wound 2cm x .5cm x muscle
deep on left side of scalp. 5cm above the
left year clotted blood present. Margin
sharp.

2. Contusion with traumatic swelling 3cm x
1cm on posterior surface of left hand.
Colour reddish. Advise x-ray left hand AP
& lateral view."

5. The Investigating Officer collected
bloodstained and plain floor (Ex.Ka.20).
On 19.01.2009 the accused Tahir during
custodial interrogation is stated to have
informed the Investigating Officer about
the place where the weapon of assault was
kept by him and on his pointing out a
bloodstained knife has been recovered,
which allegedly was used by Tahir to cause
fatal injury to Minzar. This knife, however,
has not been sent for forensic report and
has also not been produced before the
Court. The recovery of knife vide recovery
memo alone has been proved by Ram
Siromani Saroj, SHO, Bahedi (PW-8). The
description of knife is that its blade size is
eight fingers; its handle is ten fingers in
length; in the nature of fish and contains
carving of red and blue colour; and having
a brass clip for its opening and closing.

6.

The
statutory
investigation
ultimately concluded with submission of
charge sheet on 02.03.2009 against accused
appellants Tahir, Iqbal, Tayyab and Wahid.
The magistrate took cognizance on the
charge sheet and committed the case to the
court of sessions, who took cognizance on
the charge sheet. Five charges were framed
against the accused appellants under
sections 323/34, 324/34, 302/34, 504,
506(2) IPC. The accused appellants denied
the charges and demanded trial.

7. The prosecution in order to bring
home the charge has adduced several
documentary evidence i.e. FIR as Ex.Ka.7;
written report as Ex.Ka.1; recovery memo
of
bloodstained
and
plain
floor
as
Ex.Ka.20; recovery memo of knife as
Ex.Ka.9; injury report of Mohd. Arif as
Ex.Ka.4; injury report of Mohd. Ashraf as
Ex.Ka.3; injury report of deceased Minzar
as Ex.Ka.2; postmortem report as Ex.Ka.5;
inquest report as Ex.Ka.12; charge sheet as
Ex.Ka.11; and site plans with index as
Ex.Ka.21 and 10 etc.

8. The prosecution in order to bring
home the charge has also produced oral
testimony of first informant Mohd. Arif as
PW-1; Mohd. Ashraf (injured) as PW-2; Dr.
Ram Prasad, Medical Officer, CHC, Bahedi
as PW-3 who proved the injury report of
deceased Minzar; Dr. Jai Prakash, CHC,
Bahedi as PW-4, who proved the injuries of
injured Mohd. Ashraf and Mohd. Arif; Dr.
K. K. Mishra, Autopsy Surgeon from
District Hospital, Bareilly as PW-5, who
proved the postmortem report of deceased
Minzar; Constable Jhajhan Lal, Moharir as
PW-6, who proved the G.D. Entry; Head
Constable Rohitas Singh as PW-7, who
proved the Chik FIR and G.D. Entry
Kayami Mukadma; Ram Shiromani Saroj,
SHO Bahedi as PW-8, who proved
recovery memo of knife and charge sheet
etc.; S.I. Subhash Chand Yadav as PW-9,
who proved inquest report etc.; and Sushil
Kumar Verma, Outpost Incharge Police
Station Bahedi as PW-10, who proved
recovery memo of bloodstained earth etc.

9. As against the above-noted prosecution
version, in respect of the incident, the
defence version is somewhat distinct and
needs to be noticed. Km. Fatima Parveen
(DW-1), sister of the accused brothers,
claims that on 17.01.2009 at about 09.00
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
PM the deceased Minzar Ahmad, who had
a suspicious character entered her house
after seeing her sister Shabana in the room
and with a bad intent caught hold of her.
When Shabana objected to his act she was
inflicted a stab injury and on hearing the
commotion DW-1 together with her sister
Tabassum attempted to save Shabana but
they too were inflicted knife injuries by
Minzar. At this stage Km. Fatima claims to
have taken a knife from kitchen and in
order to save her sisters hit Minzar
whereafter he fled. Mother of Fatima soon
returned from the neighbourhood and all of
them went to the police station Bahedi for
lodging the report, but the police personnel
did not register it and instead asked them to
get themselves medically examined first. Km.
Fatima, Shabana and Tabassum accordingly
went to CHC, Bahedi and got themselves
medically examined, whereafter they allegedly
again came to the police station but even then
their report was not registered. Following day
i.e. 18th January was a Sunday and on
19.01.2009 a letter was sent to police personnel
informing that the family members of Minzar
have falsely lodged a report against her brothers
for killing Minzar whereas her brothers were
not even at home and the police has not
registered her report. With similar contents
letters have been allegedly sent to I.G. Range,
Bareilly, S.S.P. Bareilly under certificate of
posting which are at pages 6 to 11 of the paper
book. These letters have been duly exhibited.
The injury reports of Shabana, Tabassum and
Fatima have also been exhibited and have been
proved by Dr. Ram Prasad, Medical Officer,
CHC Bahedi (PW-3). The injuries on the three
sisters of accused have been noticed as under:-

Injuries of Sabhana

चोट सं० 1- कटा हुआ घाव 7 से.मी x 2
से.मी. x मांस पेशी तक गहरा। बायीं अग्र भुजा
पर पीछे की तरफ कलाई के जांेड से 8 से.मी
ऊपर था।

चोट सं 2- 5 लाईि दार खरोंच 11 x 4
से.मी के क्षेत्रफल में बायी अग्र भुजा में पीछे की
तरफ चोट सं. 1 से ठीक िीचे थी।

चोट सं 3- दो ऊपरी खरोंच 6 x 2 से.मी
लम्बाई दानहिी भुजा पर पीछे की तरफ दानहिी
अग्र भुजा पर पीछे की तरफ कलाई के जोड से
3 से.मी ऊपर थी।

Injuries of Tabassum

चोट सं० 1- खरोंच 2 से.मी x 2 से.मी चेहरे
में दायी तरफ दानहिे काि के (sic) नहस्से से
आगे की तरफ जमा हुआ खूि मौजूद था।

चोट सं० 2- 7 खरोंचे 7 से.मी x 4 से.मी
क्षेत्रफल में बायीं अग्र भुजा के आगे की तरफ
निचले नहस्से में थी।

Injuries of Fatima Parveen

चोट सं० 1- लाईिदार खरोंच। माथे पर 2.5
से.मी दानहिी तरफ थी। दानहिी आई ब्रो से ठीक
ऊपर थी।

चोट सं० 2- लाईिदार खरोंच (sic) से.मी x
. 2 से.मी बाये हाथ में पीछे की तरफ थी।

चोट सं० 3- कई लाईिदार खरोंच संख्या में
6 सीिे के ऊपरी नहस्से में आगे की तरफ थी।

10. The original register maintained in
the CHC Bahedi has also been produced by
the doctor to prove the injuries caused to
three sisters.

11. PW-1 in his deposition has
supported the prosecution case by stating
that at about 08.45 PM on 17.01.2009 he
was going towards Majar of Maula
Shahmiyan when the accused Tahir kicked
12 All. Tayyab & Anr. Vs. State of U.P.
1033
him while going on motorcycle and on his
resisting it the accused hurled filthy abuses
and also threatened him. On his return
when he reached Hauli Chauraha he saw
that accused Tahir together with his
brothers Iqbal, Tayyab and cousin Wahid
were waiting with arms. Tahir was carrying
a pistol, Iqbal had a sword, Wahid was
armed with kanta and Tayyab was armed
with lathi. Accused Iqbal exhorted to kill
the informant and he was assaulted by
pistol grip (but) and lathi. On raising an
alarm by him, his brothers Minzar Ahamd
and Mohd. Ashraf came and started saving
him on which the accused persons took
them inside their house and while accused
Tahir tried to kill Minzar, by firing pistol,
but the bullet missed whereafter Minzar
and Ashraf were assaulted by sword and
kanta and they got injured. Presuming them
to have died the accused persons left them
in the adjoining lane. He has stated that
when the accused persons were taking his
two brothers inside their house and
assaulting them the informant (PW-1) saw
the incident from the courtyard in the tubelight lighted on an inverter. The incident
was also seen by Parvej and Ikhtyar Ahmad
but they have not been produced in
evidence. It is also stated that he took his
brother Minzar and Ashraf to the police
station and dictated the written report to his
brother Tahir, which is exhibited Ka.1. A
constable thereafter was sent alongwith
deceased Minzar and he was examined in
the government hospital Bahedi, whereafter
Minzar was referred to district hospital at
Bareilly.

In the cross examination questions
have been put to PW-1 with regard to
contest of election of Nagar Palika Bahedi.
He has stated that accused Iqbal has
attended marriage of deceased Minzar. The
witness at a later stage in the crossexamination has clarified that his relations
with accused Iqbal were good and they
used to wish each other. The house of PW-1
was at a distance of about 300-350 paces
from the Hauli Chauraha, whereas the
house of accused from Hauli Chauraha was
about 200 paces. PW-1 has also verified the
written report on the basis of which FIR got
registered. He has, however, stated that
details about possessing of arms by accused
i.e. Iqbal having sword, Wahid Ahmad
having kanta and Tayyab having lathi was
disclosed to the Investigating Officer and
no reasons can be given for its nonnarration in the statement under Section
161 Cr.P.C. He has further admitted that in
the written report he has not mentioned the
injuries caused to him. He has also
admitted that he has not disclosed that
Ashraf was taken with him to police
station. PW-1 has categorically stated that
prior to the incident in which he was kicked
there was no enmity or bad breath between
the accused and PW-1. He has stated that at
the crossing he was assaulted by Tahir with
pistol butt and Tayyab with lathi. The
second assault by pistol butt was on his
lips. He was held by two persons while
other two accused were assaulting him and
he had cut injury. On his raising alarm his
brothers Minzar and Ashraf came from the
Rice Mill and saved PW-1. Ashraf was also
assaulted with lathi by Tayyab. None of the
shop keepers came to their rescue. The
witness however was not able to identify as
to in front of whose shop the incident
occurred. The accused took Ashraf and
Minzar to their house by holding their
colour and while PW-1 kept shouting while
following them, yet, none came to save
them. PW-1 was 10-15 paces behind the
accused who were taking Ashraf and
Minzar. He has denied any knowledge
about the family members living in their
house. The two brothers of PW-1 were
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
taken through the courtyard to a small room
where they were assaulted. Accused also
fired at Minzar and Ashraf and assaulted
them with sword and kanta. PW-1 claims to
have seen the incident from a distance near
the courtyard. The accused later brought
Minzar and Ashraf on shoulder support
when PW-1 rushed towards the north.
There was no street light and when PW-1
returned he found his brothers Minzar and
Ashraf wounded and bleeding. He took
them on a rickshaw to the police station.
PW-1 took Minzar inside the police station
who was sent for medical examination
while Ashraf stayed outside the police
station. PW-1 has stated that he had not
shown his or Ashraf's injury to the police
personnel. He has denied the suggestion
that there were no injuries caused to PW-1
and Ashraf and that is why it was not
shown to the police. He has further denied
the defence version that his brother Minzar
with bad intent entered the house of
accused finding Shabana to be alone and
caused injuries to Shabana and Fatima or
that he got hurt by the knife blow of
Fatima.

12. Mohd. Ashraf has been produced
as PW-2, who has stated that around 09.00
PM on 17.01.2009 he alongwith Minzar
was returning home from Rice Mill. When
he reached near Hauli Chauraha crossing
he heard the screams of brother Arif. He
alongwith Minzar rushed there and found
that accused Iqbal, Tayyab and Wahid were
assaulting his brother with lathi and
revolver butt. PW-2 tried to save his
brother Arif. He and Minzar were dragged
to the house of accused with an intent to
kill them. Accused Tahir fired at PW-2 and
Minzar but the bullet fortunately missed.
Tayyab assaulted PW-2 with lathi while
Wahid hit mhim by kanta on his head. Iqbal
assaulted Minzar with sword and left him
and Minzar outside their house in the lane.
At the time of incident tube-light was lit
with inverter in which the incident has been
seen by PW-2 as also by Parvej and
Iftakhar. He has further stated that he
alongwith Arif took Minzar to police
station whereafter Minzar was sent to
Government Hospital, Bahedi and from
there he was referred to District Hospital,
Bareilly where he was declared dead. PW-2
also got himself medically examined.

In the cross-examination PW-2 has
stated that he left his house for Rice Mill at
about 08.30 PM. It is also stated that
version of his return from the Rice Mill has
been disclosed for the first time in court.
He had denied the suggestion that Rice Mill
was lying closed from before the incident.
About the incident he has explained that
from Hauli Chauraha the accused firstly
took them (PW-2 and Minzar) in the
courtyard of their house and then in the
room. Four accused alongwith PW-2 and
Minzar were in the room when the accused
started assaulting them. He has stated that
Tahir fired when they were about to enter
the room and was at a distance of 5-6 paces
and that when the accused left them in the
lane after assaulting them none was present
and Arif reached later. Minzar had fallen on
the road when he was left by the accused.
He has also denied the suggestion that after
three sisters of accused caused injury to
Minzar
thereafter
injuries
were
got
fabricated by PW-1 and PW-2. He also
denied the suggestion that Minzar was a
drinker or characterless person and entered
the house with bad intent towards Shabana
finding her alone and sustained injuries
when Fatima acted in self-defence.

13. Dr. Ram Prasad of C.H.C., Bahedi
has appeared as PW-3 and verifed the
injuries caused to Minzar and stated that
12 All. Tayyab & Anr. Vs. State of U.P.
1035
such injuries could have caused by sharp
weapon like sword and was sufficient to
cause death. He later stated that in
comparison to sword the injuries of Minzar
could have been caused more probably by
kitchen knife. He has also verified the
injuries of Shabana, Tabassum and Fatima.
The injuries could have been caused at
about 09.00 PM in scuffle. The injuries of
three sisters were simple and he could not
say whether they were self inflicted or were
caused by someone else.

14. Dr. Jai Prakash, C.H.C., Bahedi
has appeared as PW-4, who has verified the
injuries of Ashraf (PW-2) and Arif (PW-2).
The injuries were simple and superficial
and has denied that injuries could be self
inflicted.

15. Dr. K. K. Mishra, Autopsy
Surgeon has appeared as PW-5. In his
opinion the cause of death of Minzar was
ante-mortem injuries which could be
caused by sharp weapon like sword.

16. The other witnesses are the formal
witnesses and would be referred at
appropriate stage, including PW-8 who has
stated that during investigation he came to
know that some of the ladies in the house
of accused had also sustained injuries in the
incident. He further denied that in the
statement under section 161 Cr.P.C. Ashraf
had not disclosed the weapon available
with the accused or that Wahid assaulted
him with kanta or that Iqbal assaulted
Minzar with sword or Tayyab assaulted him
by lathi.

17. On the basis of evidence led by
the prosecution the incriminating materials
were put to accused, who denied the
charges and stated that they have been
falsely implicated due to enmity. Accused
Abdul Wahid stated that he too has been
implicated as none to do pairvi of his
cousin,
who
too
have
been
falsely
implicated. Written statement under section
313 Cr.P.C. has also been given by accused
stating
that
around
09.00
PM
on
17.01.2009 the accused were not at home
when Minzar with bad intent entered their
house and grabbed their sister Shabana and
on her objecting assaulted her with knife
and when their sisters Tabassum and
Fatima tried to intervene they too were
caused injuries whereafter Fatima brought
knife from kitchen and attacked Minzar and
blue knife which hit Minzar after which
Minzar fled. When the sisters came to
lodge report they were asked to get
themselves medically examined and that
they were in fact medically examined on
the same night and when they returned to
lodge the report, yet, their report was not
registered and a false case was lodged
against accused for murdering Minzar.
Complaint in that regard has been sent to
police
officers
on
19.01.2009.
The
statement under section 313 Cr.P.C. is
common on behalf of other three brothers
namely Iqbal, Tayyab and Tahir.

18. On behalf of the accused DW-1
Fatima Parveen has also been produced,
who has stated that Tahir, Iqbal and Tayyab
are real brothers while Wahid his cousin.
She knew the deceased Minzar who had a
bad character. Shabana is her sister who
was unmarried then and is now married.
She has stated that on 17.01.2009 around
8.45-9.00 PM she alongwith her sister
Tabassum and Shabana were in the house
alongwith their father, who was in coma.
She and Tabassum were in the room of
father and Shabana in the room next to
road. The brothers of DW-1 had gone to
Ajmer Sarif to offer prayers for welfare of
her father who died 15-20 days after the
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
incident. She has also stated that Minzar
entered the house and grabbed Shabana and
on her objecting Minzar caused a knife injury
on her hand. DW-1 alongwith Tabassum tried
to save her sister Shabana from Minzar, to
which Minzar caused injuries to her and
Tabassum also. In defence the DW-1 claims
to have brought out a knife from kitchen and
attacked Minzar who got hit and left
thereafter. She could not say as to where
injury was caused to Minzar. She claims to
have gone wiith her cousin Babblu @
Iftakhar for lodging report but they were
asked to get themselves medically examined
but even thereafter their report was not
registered. She has verified the complaint
sent to police personnel, which is duly
exhibited. Letters were sent by UPC and the
receipt is also exhibited. In the cross
examination DW-1 stated that when Minzar
came to her house there was no light in the
lane but inverter light was available. Minzar
had come alone. She had elaborately
explained as to how she saw Minzar holding
knife when she entered in the room of
Shabana on her raising alarm. The sisters
were shouting but Minzar did not retreat and
they got injured by knife. She claimed that
knife by which she attacked Minzar was
thrown in the room. She further admitted that
the police was not informed about causing of
knife injury nor the knife was taken to the
police station. She claims that three brothers
of DW-1 had returned on 18.01.2009 and she
heard that they were arrested by the police.

19. The trial court on the basis of
evidence led by the prosecution has found
the charges levelled against the accused
appellants to be proved beyond reasonable
doubt and consequently convicted them
vide impugned judgement and order.

20. Sri Rajiv Lochan Shukla, learned
counsel for the appellants submits that the
prosecution has not been able to explain the
genesis
of
the
incident
nor
the
commissioning of offence in the manner
suggested by its witnesses. He contends
that the entire prosecution case lacks
credibility and the two witnesses of fact are
not reliable. He also submits that the
deposition of prosecution witnesses is
untruthful. It is also argued that genesis of
incident lies in mystery and the prosecution
has otherwise suppressed the injuries on the
accused. He submits that the injuries on the
accused clearly probablize the plea taken
by the defence and in such circumstances
the prosecution has failed to establish the
guilt
of
accused
appellant
beyond
reasonable doubt. In support of his
submission learned counsel has placed
reliance upon judgments of the Supreme
Court in Suchand Pal Vs. Phani Pal, 2003
(11) SCC 527; Vijay Narain Mishra Vs.
State of U.P., 2013 0 Supreme (All) 1913;
Balwan Singh Vs. State of Haryana, 2005 3
Supreme (SC) 740; Ganesh Datt Vs. State
of Uttarakhand, 2014 0 Supreme (SC) 457,
and judgment of the High Court in Sanjay
Sharma Vs. State of U.P., passed in
Criminal Appeal No.3667 of 2018, decided
on 24.12.2021.

21. Sri Manish Tiwari, learned Senior
Counsel assisted by Sri Atharva Dixit for
the informant, on the other hand, that the
prosecution
witnesses
have
truthfully
narrated the incident and the conviction of
the
court
below
relying
upon
the
prosecution witnesses is valid. He states
that presence of PW-1 and PW-2 at the
place of occurrence is natural and probable
and finds corroboration from the medical
evidence available on record. He submits
that the cross-version pleaded by the
defence is not supported by medical
evidence and the defence story is wholly
improbable. He also argues that as the
12 All. Tayyab & Anr. Vs. State of U.P.
1037
defence has come up with a cross-case the
onus would be upon it to prove its case
beyond all reasonable doubts or at least to
shake the prosecution story leaving it no
legs to stand which the defence has failed
to do. He also submits that the solitary
blow on the deceased could not have been
caused by kitchen knife, as is sought to be
urged on behalf of defence. He argues that
the injuries on the deceased had clearly
been caused by a heavy cutting weapon,
which in the present case happens to be a
sword. He also submits that the defence has
not explained as to why it did not pursue its
cross-case and that neither dispatch of letter
by UPC is reliable nor the conduct of
defence in not filing a letter application
under Section 156(3) Cr.P.C. is credible. He
further submits that the injuries on the
defence were clearly self-inflicted and
although
the
cross-version
is
not
substantiated but taking of such stand by
the defence clearly proves that the incident
is admitted to the defence as well. Learned
Senior Counsel has placed reliance upon
judgment of the Madhya Pradesh Court in
Sukhendra Singh Vs. State of Madhya
Pradesh, 2017 SCC OnLine MP 1138 and
judgments of the Supreme Court in Jagdish
Narain and another Vs. State of U.P.,
(1996) 8 SCC 199; Shivanna Vs. State by
Hunsur Town Police, (2010) 15 SCC 91;
Tori Singh and another Vs. State of Uttar
Pradesh, (1962) 3 SCR 580; Ganga Singh
Vs. State of Madhya Pradesh, (2013) 7
SCC 278; Jai Prakash Vs. State of Uttar
Pradesh and others, (2020) 17 SCC 632;
Hema Vs. State through Inspector of
Police, Madras, (2013) 10 SCC 192 and
Ram Bali Vs. State of U.P., (2004) 10 SCC
598. He further submits that in the case of a
defective investigation the court has to be
circumspect in evaluating the evidence. He
further points out that the doctor has clearly
stated that the injuries on the prosecution
witnesses were not self-inflicted and none
of the accused in their statement under
Section 313 Cr.P.C. have been taken the
plea that they were at Ajmer.

22. It is in the light of the above
conditions and the evidence placed on record
that this Court is required to consider as to
whether the prosecution has succeeded in
proving the guilt of the accused appellant
beyond reasonable doubt?

Analysis on Facts:

23. The prosecution story emanates on
the report of PW-1, who claims that while
going to offer prayer at Majar of Maula Shah
Miyan on 17.1.2009, at about 08.45 PM, he
was kicked by accused Tahir. PW-1 objected
to it on which the accused allegedly hurled
filthy abuses and threatened him. This part of
the prosecution story, which provides the
genesis of occurrence is based upon the sole
testimony of PW-1. The reliability of the
testimony of PW-1 is therefore required to be
examined, first.

24. PW-1 in his testimony has
supported the prosecution case about the
genesis
of
incident
and
has
been
elaborately cross-examined. In his crossexamination PW-1 has clearly stated that he
had no enmity with the accused Tahir and
that their relations were cordial. That being
so, the conduct of accused Tahir in kicking
PW-1, for no obvious reason, seems
doubtful. Accused Tahir otherwise has no
criminal history and is not known to be a
person of cantankerous or quarrelsome
nature. The genesis of occurrence, as per
the prosecution, therefore, does not seem
probable and remains a grey area.

25. PW-1 then stated that he went to
Majar; offered prayers and returned soon
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter to find that the four accused
armed with pistol, sword, kanta and lathi
were waiting at Hauli Chauraha and on
seeing him Iqbal exhorted that kill the
informant. This part of the prosecution
story sounds improbable. It is difficult to
understand as to why the accused party
would come armed with an intent to kill
PW-1 when there exists no reason for it.
Mere kicking or consequential altercation
between PW-1 and Tahir also would not
create sufficient reason or provocation for
such an act on part of the accused.

26. It is thereafter that PW-1 was
assaulted with pistol grip and lathi and on
hearing his cries the informant's brother
Minzar and Ashraf came and saved him.
This part of the prosecution version is also
based substantially upon the statement of
PW-1. The only material available on
record for the purposes of corroboration of
such version of PW-1 is the injury report of
PW-1 (Ex.Ka-4). The injuries on PW-1 Arif
consists of abrasion 1 cm x 0.5 cm on mid
front of upper lip and; (2) Abrasion 3cm x
2cm on anterior surface of neck. In the
opinion of the doctor both the injuries were
caused by rubbing of body part against
rough surface of hard blunt object. Both the
injuries were simple in nature. The injuries
of Arif have not been examined on the date
of incident, rather his examination was
done on the next morning i.e. 18.1.2009 at
10.55 am.

27. Even if the issue with regard to
timing of the medical examination is for the
time being kept aside, yet the two injuries
which are in the nature of rubbing of blunt
object cannot be caused by pistol butt or by
lathi. The testimony of PW-1 that he was
hit by a butt of revolver or was hit by a
lathi does not therefore find corroboration
from the injury sustained by PW-1.

28. The prosecution case then is that
Ashraf and Minzar hearing the screams of
PW-1 came on the spot while returning
from the rice mill. The prosecution case
further is that two brothers namely Mohd.
Ashraf and Minzar saved PW-1, whereafter
the two brothers Mohd. Ashraf and Minzar
were taken by the accused party to their
house situated at a distance of about 200
paces. This part of the prosecution story
requires a careful analysis.

29. As per the prosecution case the
fight was between PW-1 and the accused
Tahir. However, instead of PW-1 being
taken by the accused party it was the other
two brothers, with whom there was no
enmity who were taken by the accused
party. PW-1 was left behind. No possible
reason is disclosed for such unusual act.
There is no material on record to even
remotely suggest that there existed any
enmity/fight between Minzar and Mohd.
Ashraf with the accused persons. There is
thus no possible explanation on record as to
why the accused persons choose to take
Minzar and Mohd. Ashraf with them to
their house leaving behind PW-1, when the
discord was with PW-1.

30. The statement of PW-1 and PW-2
are to the effect that the accused took
Minzar and Mohd. Ashraf with them to
their house. This part of the prosecution
version remains wholly unexplained. The
statement of PW-1 and PW-2 goes contrary
to the charge framed against the accused as
per which all three brothers were taken by
accused party to their house.

31. Once the discord/fight was with
PW-1, the natural conduct would have been
for the accused to take PW-1, if they
wanted to cause any harm to him. However,
the prosecution version is that PW-1 was
12 All. Tayyab & Anr. Vs. State of U.P.
1039
left and the two other brothers Minzar and
Ashraf, who had come to save PW-1, were
rather taken by the accused to their house.
This version of prosecution is also
improbable.

32. It is then the prosecution case that
the accused held Ashraf and Minzar and
took them to their house at a distance of
about 200 paces. It is admitted that the
incident occurred at Hauli Chauraha and
there were shops around which were open.
As per the PW-1 none came forward to
save them. As per the prosecution case
Minzar, Ashraf and Mohd Arif were on one
side while four accused were on the other.
It sounds a little unusual that three able
bodied men would be taken with an intent
to cause harm without any resistance or
scuffle on their part through an area
inhabited by others. Even if none directly
intervened as accused were armed yet the
natural conduct would be that someone in
the market would raise alarm or inform the
police.

33. Even if the accused were armed
yet some sort of resistance was expected to
be made by Minzar, Ashraf and Arif which
is totally missing. This conduct of three
able
bodied
young
men
in
blindly
following the accused to their house cannot
be termed natural.

34. The prosecution version that PW1 was following the accused without any
protest while his brothers were taken by the
accused party also seems unnatural.

35. PW-1 then claims that he saw
from a distance the incident in which his
two brothers were taken through the
courtyard inside a small room. There is no
possible explanation as to why PW-1 was
left out while the other two brothers were
taken inside the house and then assaulted.
PW-1 and PW-2 moreover stated that when
they entered the room accused Tahir fired at
Ashraf and Minzar. There is no empty
cartridge found from the spot. If the bullet
had missed the two brothers, it would have
hit
some
other
wall
etc.
but
no
signs/evidence of bullet being fired in the
room is available. None of the two brothers
have
otherwise
sustained
any
bullet
injuries.

36. In the event the accused wanted to
kill either or both the brothers they could
have done so easily by firing upon them
particularly when they were armed with
firearms but admittedly they have not
caused any bullet injuries. There is no
reason to take the two brothers inside the
house and then assault one of them so as to
kill him. The room in which PW-2 and
Minzar have been allegedly assaulted is a
small room of 8 x 10 feet in which the four
accused alongwith Minzar and Ashraf were
present. The room otherwise had a fridge, a
sofa and bed as per the site plan.