# Tej Bir & Ors v. State of U.P

- **Citation:** (2026) 4 ILRA 580
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-02
- **Case number:** Criminal Appeal No. 2402 of 1989
- **Bench:** Chandra Dhari Singh, Devendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tej-bir-ors-v-state-of-u-p-54459
- **Pages:** 11

## Text

580 INDIAN LAW REPORTS ALLAHABAD SERIES

54. However, this Court finds that the prosecution has not been able to establish the element of
intention so as to bring the case within the ambit of Section 300 I.P.C. The evidence on record
indicates that the occurrence took place in the course of a sudden quarrel without premeditation. At
the same time, considering the nature of the act and the injury caused, the accused can be said to be
attributed with the knowledge that such act was likely to cause death.

55. Accordingly, the conviction of the accused under Section 302 I.P.C. is liable to be altered
to one under Section 304 Part II I.P.C.

56. The conviction of the accused-appellant under Section 302 I.P.C., as recorded by the
learned trial court, is hereby altered to a conviction under Section 304 Part II I.P.C.

57. Insofar as the sentence is concerned, it is noted that the accused has already undergone
incarceration for a period of 15 years, 04 months and 14 days as on 21.02.2026, which exceeds the
maximum sentence prescribed under Section 304 Part II I.P.C., i.e., imprisonment for a term which
may extend to 10 years.

58. In view of the aforesaid, the period of imprisonment already undergone by the accused is
held to be sufficient sentence for the offence under Section 304 Part II I.P.C. The sentence of fine,
imposed by the trial court, is maintained. However, in case the fine has already been deposited, no
further order is required; and in case of default sentence, it is observed that the accused has already
undergone incarceration exceeding even the maximum prescribed term.

59. The appeal, therefore, stands partly allowed.

60. The accused-appellant is directed to be released forthwith, if not required in any other case.

61. Pending applications, if any, shall stand disposed of.

62. Let a certified copy of this judgment along with the lower court record be transmitted to
the court concerned forthwith, and in any case within a period of one week, for compliance.
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(2026) 4 ILRA 580
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.04.2026

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.
THE HON'BLE DEVENDRA SINGH-I, J.

Criminal Appeal No. 2402 of 1989

Tej Bir & Ors. ...Appellants
Versus
State of U.P. ...Respondent
4 All. Tej Bir & Ors. Vs. State of U.P.
581
Issue for Consideration
Matter pertains to whether the conviction under S. 302 IPC could be sustained on the testimony of the sole
eyewitness, who was an interested and related witness, when the other eyewitness did not support the
prosecution case and was declared hostile, and whether the prosecution had established the guilt of the
appellant beyond all reasonable doubt. (Paras 27, 39-49)

Headnotes
Criminal Law - Murder - Appreciation of Evidence - Indian Penal Code, 1860 - S. 302 - Hostile
witness - Evidentiary value - Evidence of a prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross-examined him and evidence of
such witnesses cannot be treated as effaced or washed off the record altogether but can be
accepted to the extent their version is found to be dependable on a careful scrutiny thereof - One
eyewitness did not support the prosecution case from the very beginning and stated that as it
was a dark night he could not see the face of the accused and nothing could be elicited from his
mouth to support the prosecution case - No benefit could be derived by the prosecution from his
evidence. (Paras 31-38)
Criminal Law - Murder - Appreciation of Evidence - Interested and related witness - Indian Penal
Code, 1860 - S. 302 - Rule of prudence - Evidence of a related and interested witness should be
meticulously and carefully examined and where such witness may have some enmity with the
assailant, the evidence would have to be examined by applying a standard of discerning scrutiny
- Sole eyewitness was uncle of the deceased and admitted source of identification was torchlight
on a dark night - Testimony found improbable and discrepant - Evidence did not inspire
confidence. (Paras 39-47)
Criminal Law - Murder - Benefit of doubt - Indian Penal Code, 1860 - S. 302 - Enmity as doubleedged weapon - Enmity provides motive for the commission of the offence but also does not rule
out the possibility of false implication - Possibility of false implication on account of previous
enmity could not be ruled out from the nature of evidence placed on record - Appellant entitled
to benefit of doubt. (Paras 29, 48)
Criminal Law - Acquittal - Failure of prosecution to prove case beyond reasonable doubt - Indian
Penal Code, 1860 - S. 302 - Sole eyewitness not reliable and hostile witness not supporting
prosecution - Prosecution failed to establish guilt beyond all reasonable doubt - Conviction and
sentence set aside and appellant acquitted. (Paras 47-50)
Held: A witness in a crime is a vital component in the administration of justice and by now it is well settled by
a catena of judgements of Hon'ble Supreme Court that enmity is a double edged weapon which on one hand
provides motive for the commission of the offence and on the other hand does not rule out the possibility of
false implication - the first informant was admittedly not an eyewitness of the case and had admitted his
enmity with the accused - one of the two eyewitnesses did not support the prosecution case from the very
beginning and stated in clear terms that although he saw 4-5 persons running after committing the murder of
the deceased but as it was a dark night he could not see the face of the accused and therefore no benefit
could be derived by the prosecution from his evidence - the evidence of the sole remaining eyewitness who
was the uncle of the deceased was required to be meticulously and carefully examined - admittedly at the
place of occurrence there was no source of light and while they were moving forward they were flashing torch
to see the pathway - when pathway was not clearly visible to the witnesses it was improbable that they had
seen all the accused carrying country made pistols in their respective hands - the conduct of the witness after
the incident was also improbable and clearly shows that no one has seen the assailants and after the
occurrence the FIR has been lodged after due consultation with each other dragging the appellants in the
case due to previous enmity - there was also discrepancy in his evidence regarding inspection of the torch -
conviction of the sole surviving appellant could not be made on the testimony of the sole eyewitness whose
evidence does not inspire confidence - the possibility of the appellant being falsely implicated on account of
previous enmity cannot be ruled out and the appellant is entitled to benefit of doubt - the prosecution failed
to establish the guilt of the appellant beyond all reasonable doubt and the conviction and sentence under S.
302 IPC were liable to be set aside - Appeal allowed. (Paras 28-30, 37-50) (E-7)
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law Cited
Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, (1991)3 SCC 627; State of U.P. Ramesh Prasad
Mishra, (1996) 10 SCC 635; Bhajju Vs. State of Madhya Pradesh, (2012) 4 SCC 327; Selvamani Vs. State
represented by Inspector of Police, 2024 SCC OnLinw SC 837; Dadu alias Ankush and another Vs. State of
Madhya Pradesh and another, 2025 LiveLaw (SC) 1178; Masalti Vs. State of U.P., (1964) 8 SCR 133;
Raju Vs. State of Tamil Nadu, (2012)4 SCC (Cri) 184; Edakkandi Dineshan alias P. Dineshan and others Vs.
State of Kerala, (2025) 3 SCC 273; Chhote Lal Vs. Rohtash and others, (Criminal Appeal No. 2490 of
2014, decided on 14.12.2023)

List of Acts
Indian Penal Code, 1860; Code of Criminal Procedure, 1973.

List of Keywords
Murder; eyewitness; hostile witness; related witness; interested witness; enmity; double edged weapon;
benefit of doubt; appreciation of evidence; dark night; torch light; false implication; beyond reasonable doubt;
conviction; acquittal; testimony not inspiring confidence; sole eyewitness; prosecution failed to establish guilt.

Case Arising From
APPELLATE JURISDICTION: Criminal Appeal arising from the judgement and order dated 19.12.1989 passed
by the Special/Additional District and Sessions Judge, Saharanpur in ST No. 662 of 1988, whereby the
appellant was convicted and sentenced to life imprisonment under S. 302 IPC.

Appearances for Parties
Advs. for the Appellant:
Mr. Mohammad Kalim, learned counsel for the appellant.
Advs. for the Respondents:
Shri R.K. Gupta, learned Additional Government Advocate for the State.

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. This criminal appeal has been filed against a judgement and order dated 19.12.1989 passed
by the Special/Additional District and Sessions Judge, Saharanpur in ST No. 662 of 1988, under
Sections 302 and 302/34 IPC, police Station Manglaur, district Haridwar, whereby the learned
Judge convicted and sentenced the appellants Nepal, Raj Kumar and Ved Pal to life imprisonment
under Section 302 read with 34 IPC whereas appellant Tejbir was convicted and sentenced to life
imprisonment under Section 302 IPC.

2. Pursuant to the order of this Court dated 30.01.2026, criminal appeal filed on behalf of
appellant No. 2, 3 and 4, namely Nepal, Ved Pal and Raj Kumar is disposed of as abated.

3. Now, this Court is concerned with the criminal appeal filed on behalf of appellant No. 1.
Tejbir.

Facts of the case

4. The facts that formed the bedrock of the present criminal appeal, are that a written report
was given by Asghar, son of Allah Rakha at the police station Manglaur, district Haridwar with the
allegations that certain portion of land belonging to Bidmani Pandit was purchased by his brother
Rahman. Nepal and Tejbir wanted to purchase the said land. At the time of purchase of the said
4 All. Tej Bir & Ors. Vs. State of U.P.
583
land, altercation took place, due to which Nepal and Tejbir used to harbour animosity. When his
brother was constructing the house over the said plot, they also made obstructions. In front of the
house of his brother, there was a hut of Nepal and Tejbir and they were asked to remove the hut,
but they refused and threatened of dire consequences. On 17.08.1987 at about 09:00 PM, when his
cousin Rahman, Allah Rakha and Akram were coming back to village from Gurukul after supply of
milk, on the way at the turning of Gurukul-Mohammadpur, they met Nepal, Tejbir, Ved Pal and
Raj Kumar (herein after referred to as the accused), who were armed with country made pistols. On
seeing his brother, accused-Nepal, Raj Kumar and Ved Pal exhorted that he be killed and thereupon
Tejbir, with an intention to kill, fired at Rahman (hereinafter referred to as the deceased), due to
which he fell down. However, accused managed to escape. The accused were identified by Allah
Rakha and Akram in the light of torch and brought the deceased to Gurukul and the first informant
was called from the village. Thereafter, deceased was taken to Muzaffarnagar.

5. On the basis of the aforesaid written report, a Chik FIR was registered by Clerk Constable
Sunil Kumar, Ext. Ka-4, which was entered in GD, Ext. Ka-5.

6. After the registration of the case, the law set into motion and investigation of the case was
entrusted to PW-5, SI Yogendra Singh. On the pointing out of witnesses Allah Rakha and Akram,
he inspected the spot and prepared site plan, Ext. Ka-6. He also collected bloodstained and simple
earth, Ext. Ka-7. Thereafter, he recorded the statements of witnesses Akram and Allah Rakha. After
the death of the deceased-Rahman, he converted the case to one under Section 302 IPC vide GD
No. 10 at 07:20 AM. Thereafter, the investigation of the case was taken up by SO Shri Virendra
Kumar Sharma.

7. PW-4, SO Virendra Kumar Sharma in his examination-in-chief deposed that earlier
investigation of the case was conducted by SI Yogendra Singh. On 18.08.1987, he recorded the
statement of witness Bidmani Pandit. He arrested accused Raj Kumar on 24.08.1987, accused
Nepal Singh on 25.08.1987 and accused Tejbir Singh on 02.09.1987. After completing necessary
formalities, he submitted charge sheet against the appellants on 03.11.1987, which he proved as
Ext. Ka-3.

8. As the case was exclusively triable by the Court of Sessions, the learned Magistrate
committed the case to the Court of Sessions, where case was registered as ST No. 662 of 1988.
Learned Special/Additional Sessions Judge, Saharanpur vide order dated 12.04.1989 framed the
charge against the appellants Nepal Singh, Ved Pal and Raj Kumar under Section 302/34 IPC,
whereas charge against the appellant Tejbir Singh was framed under Section 302 IPC, which was
read over and explained to the accused in Hindi, who pleaded not guilty and claimed to be tried.

9. To bring home guilt of the appellants, the prosecution has examined as many as six
witnesses. PW-1, Asghar is the first informant of the case, PW-2, Akram and PW-3, Allah Rakha
are the witnesses of fact, PW-4, SHO Vinod Kumar Sharma, the second investigating officer of the
case, who submitted the charge sheet, PW-5, SI Yogendra Singh, the first investigating officer of
the case and PW-6, Dr. N.P. Sharma, who conducted autopsy on the cadaver of the deceased.
584 INDIAN LAW REPORTS ALLAHABAD SERIES

10. PW-1, Asghar is the first informant of the case. He reiterated the versions given in the FIR.
He further deposed that on 17.08.1987, he was present at his home. At about 09:15 PM, 2-3
persons came and told him that some one has fired at his brother. He came to Gurukul, where he
saw that Rahman was lying. Allah Rakha and Akram were with him, who told him about the story
of the incident. Accordingly, he wrote the report and handed over at the police station Manglaur,
Ext. Ka-1. Allah Rakha and Rahman took Rahman to Muzaffarnagar, where he succumbed to the
injury.

11. PW-2, Akram, in his examination-in-chief deposed that deceased was his brother-in-law
(Sala). He knows accused Tejbir, Nepal, Raj Kumar and Ved Pal, who are the resident of
Mohammadpur. Deceased was also the resident of Mohammadpur. On the date of incident when he
along with Allah Rakha and Rahman was coming back to Mohammadpur after supply of milk to
Gurukul in three different cycles and when reached near the turning at about 09:00 PM, someone
fired at Rahman. It was a dark night and he could not see as to who fired shot. He saw 4-5 persons
running, but he could not see the face of the accused.

12. At this juncture, on the request of prosecution, this witness has been declared hostile and
prosecution were permitted to cross examine him.

13. PW-3, Allah Rakha in his examination-in-chief, deposed that he along with Rahman and
Akram used to sell milk. When he along with Rahman and Akram was coming back to village on
cycle after supply of milk to Gurukul. This witness and Akram were having a torch, they kept on
flashing the torch and when they reached near the turning at about 09:00 PM, four persons met
them on the way. They were Nepal, Tejbir, Ved Pal and Raj Kumar of the village. They were
having separate country made pistol. On seeing Rahman, Nepal, Raj Kumar and Ved Pal exhorted
to kill him. Thereupon accused Tejbir fired at Rahman (deceased), who, on being injured, fell
down. He further deposed that after the incident 2-3 unknown persons met him at the place of
occurrence and they were told by this witness to inform at his home about the incident. After
sometimes, his son Asghar and other persons reached Gurukul, to whom he told about the incident.
Thereafter, Asghar wrote the report and handed over at the police station Manglaur. Injured was
taken to Muzaffarnagar Hospital, where he breathed his last.

14. The evidence of PW-4, Virendra Kumar Sharma, the second investigating officer and PW5, SI Yogendra Singh, the first investigating officer has already been discussed above.

15. PW-6, N.P. Sharma, deposed that on 18.08.1987, he was posted at Muzaffar Nagar
Hospital. On that date at about 03:30 PM, he conducted autopsy on the body of the deceasedRahman, who was brought by Constable 251 Jagveer Singh and Home Guard 1496 Ghanshyam
along with relevant documents. He found the following injuries on the person of the deceased:

"1. Multiple gun shot wound of entries in an area of 30 cm x 28 cm on both side of chest
and upper part of abdomen and front of neck size varying 2 cm x 1 cm to 1/2 cm x 1/2 cm depth- skin
to cavity deep. Margins are lacerated and inverted. No blackening and tattooing is present.
4 All. Tej Bir & Ors. Vs. State of U.P.
585

2. Three gun shot would of entry in an area of 6 cm x 3 cm on the front and inner aspect
of left upper arm, size 1/2 cm x 1/2 cm x skin deep. Margin lacerated. No blackening and tattooing
present.

3. Five gun shot wound of entry in an area of 8 cm x 4 cm on the front and outer aspect of
right upper arm, size 1/2 cm x 1/2 cm x skin deep. Margin lacerated. No blackening and tattooing
present.

4. Abrasion 3 cm x 1 cm over back of right elbow.

5. Abrasion 2 cm x 1 cm over the upper part of left thigh.

6. Abrasion 3 cm x 1 cm over upper part of right thigh.

16. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of
ante-mortem injuries. The death could have been caused after 09:00 PM on 17/18.08.1987.

17. Doctor also found three small metallic pellets from right lung, four small metallic pellets
from left lung, five small metallic pellets recovered in chest cavity, three small metallic pellets are
recovered from chest wall.

18. During cross-examination, to a specific question, doctor stated that fire was made from the
distance beyond 6 feet. He further deposed that he cannot tell definitely that the injuries was the
result of how many fires.

19. After the closure of the prosecution evidence, the statement of the accused was recorded
under Section 313 Cr.P.C., in which he denied the charges levelled against him and claimed false
implication.

20. Learned Special/Additional District and Sessions Judge, Saharanpur after hearing the
learned counsel for the parties and assessing, evaluating and scrutinizing the evidence on record,
convicted and sentenced the accused-appellants as indicated herein above.

21. Hence, this appeal.

22. Mr. Mohammad Kalim, learned counsel for the appellant submits that there is no
eyewitness of the occurrence and the appellants have been falsely dragged in the present case due
to enmity.

23. Learned counsel for the appellant further submits that PW-2, Akram, who claimed himself
to be the eyewitness of the occurrence, did not support the prosecution case and declared hostile.

24. Learned counsel for the appellant also argued that PW-3, who claimed himself to be the
eyewitness is close relative of the deceased and the first informant.

25. On the other hand, Shri R.K. Gupta, learned Additional Government Advocate
representing the State supported the findings of the learned trial court by stating that the
prosecution has discharged its burden by establishing the guilt of the appellant beyond reasonable
586 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt. He further submitted that the judgement is well reasoned and calls for no interference by this
Court.

26. Heard Mr. Mohammad Kalim, learned counsel appearing on behalf of surviving appellantTejbir and Mr. R.K. Gupta, learned Additional Government Advocate representing the State and
perused the record of the case.

27. The first argument of learned counsel for the appellant is that there was no eye witness of
the occurrence and appellant has been dragged in the instant case due to enmity.

28. A witness in a crime is a vital component in the administration of justice. By providing
evidence related to the allegation of the offence, the witness fulfils a holy obligation of aiding the
court in discovering the truth or rather facts. That is why before presenting testimony, a witness
takes an oath in the name of God or makes a solemn statement that he/she will narrate the truth, the
entire truth and nothing but the truth. In our justice system, witnesses play a critical role in assisting
courts in making effective judgements, ensuring that justice is given to those who need it the most.

29. By now it is well settled by a catena of judgements of Hon'ble Supreme Court that enmity
is a double edged weapon. On one hand, it provides motive for the commission of the offence, on
the other hand it also does not rule out the possibility of false implication.

30. Now, coming to the evidence of prosecution witnesses. PW-1, Asghar, who is the first
informant of the case, was admittedly not an eyewitness of the case. He has lodged the first
information report only on the narration of PW-2, Akram and PW-3, Allah Rakha. In the first
information report as well as in his evidence before the Court, PW-1, Asghar has admitted his
enmity with the accused-Nepal and Tejbir.

31. In this case two prosecution witnesses, namely PW-2, Akram and PW-3, Allah Rakha have
been shown as eyewitness of the occurrence. PW-2, Akram, who is the real brother-in-law (Bahnoi)
of the deceased did no support the prosecution case from the very beginning and has been declared
hostile.

32. So far as the evidence of hostile witness is concerned, a three Judge Bench of Hon'ble
Supreme Court in Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh (1991)3 SCC
627, relying upon catena of judgement of Hon'ble Supreme Court, held that "evidence of a
prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as
hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the same can be accepted to the extent
their version is found to be dependable on a careful scrutiny thereof.

33. In State of U.P. Ramesh Prasad Mishra, (1996) 10 SCC 635, Hon'ble Supreme Court
held that evidence of a hostile witness would not be totally rejected if spoken in favour of the
prosecution or the accused, but required to be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or defence can be relied upon.
4 All. Tej Bir & Ors. Vs. State of U.P.
587

34. Hon'ble Supreme Court in Bhajju Vs. State of Madhya Pradesh (2012) 4 SCC 327
discussed the worth of the evidence of a hostile witness in the following words:

"It is settled law that the evidence of hostile witnesses can also be relied upon by the
prosecution to the extent to which it supports the prosecution version of the incident. The evidence
of such witnesses cannot be treated as washed off the records, it remains admissible in trial and
there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by
other reliable evidence.."

35. In Selvamani Vs. State represented by Inspector of Police, 2024 SCC OnLinw SC 837,
after considering a catena of its earlier judgements on the point, Hon'ble Supreme Court held as
under:

"Thus, the law can be summarised to the effect that the evidence of a hostile witness
cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be
used by the prosecution or the defence."

36. The judgement in Ramesh Prasad Mishra (Supra) was reiterated by the Hon'ble Supreme
Court in Dadu alias Ankush and another Vs. State of Madhya Pradesh and another, 2025
LiveLaw (SC) 1178.

37. In the light of the above settled proposition of law, we shall not discuss the evidence of
PW-2, Akram. In his evidence, PW-2 has stated that deceased was his brother-in-law (Sala). He
knows accused Tejbir, Nepal, Raj Kumar and Ved Pal, who are the resident of Mohammadpur.
Deceased was also the resident of Mohammadpur. On the date of incident when he along with
Allah Rakha and Rahman were coming back to Mohammadpur after supply of milk to Gurukul in
three different cycles and when they reached near the turning at about 09:00 PM, some one fired at
Rahman. It was a dark night and he could not see as to who fired shot. He saw 4-5 persons running,
but he could not see the face of the accused.

38. Since, from the very beginning of his evidence, he did not support the prosecution case
and stated in clear terms that although he saw 4-5 persons running after committing the murder of
Rahman, the deceased, but as it was a dark night, he could not see the face of the accused. This
witness PW-2, Akram was also subjected to lengthy cross-examination, but nothing could be
elicited from his mouth to support the prosecution case. Therefore, from his evidence no benefit
can be derived by the prosecution.

39. Now, coming to the testimony of PW-3, Allah Rakha, who supported the prosecution case
and who is related and interested witness being the uncle of the deceased.

40. The rule of prudence of the point of related and interested witnesses is that their evidence
should be meticulously and carefully examined. Before discussing the evidence of PW-3, Allah
Rakha, it would be useful to refer to certain pronouncement of Hon'ble Supreme Court on the
point:
588 INDIAN LAW REPORTS ALLAHABAD SERIES

41. In Masalti Vs. State of U.P. (1964) 8 SCR 133 the Supreme Court observed:

"But it would, we think, be unreasonable to contend that evidence given by
witnesses should be discarded only on the ground that it is evidence of partisan or interested
witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan,
would invariably lead to failure of justice. No hard and fast rule can be laid down as to how
much evidence should be appreciated. Judicial approach has to be cautious in dealing with
such evidence; but the plea that such evidence should be rejected because it is partisan
cannot be accepted as correct."

42. In Raju Vs. State of Tamil Nadu (2012)4 SCC (Cri) 184 ,Hon'ble Supreme Court
held as under:

"The sum and substance is that the evidence of a related or interested witness
should be meticulously and carefully examined. In a case where the related and interested
witness may have some enmity with the assailant, the bar would need to be raised and the
evidence of the witness would have to be examined by applying a standard of discerning
scrutiny."

43. The aforesaid decision in Raju (Supra) was followed by Hon'ble Supreme Court in
Edakkandi Dineshan alias P. Dineshan and others Vs. State of Kerala, (2025) 3 SCC
273.

44. In Criminal Appeal No. 2490 of 2014 (Chhote Lal Vs. Rohtash and others),
decided on 14.12.2023, Hon'ble Supreme Court held as under:

"It may not be out of context to mention that the appellant/complainant, a sole
eyewitness, happens to be the most interested witness being the father of the deceased and
having long enmity with the group to which the accused persons belong, therefore, his
testimony was to be examined with great caution and the High Court was justified in doing so
and in doubting it so as to uphold the conviction on his solitary evidence"

45.. Keeping in view the observations of Hon'ble Supreme Court in the judgements
referred to above, we shall not proceed to discuss the evidence of PW-3, Allah Rakha, who is
the uncle of the deceased. Admittedly, at the place of occurrence, there was not source of
light as is evident from the evidence of PW-3, Allah Rakha himself. PW-3, Allah Rakha in
his evidence has stated that he along with Rahman and Akram was coming back to village on
cycle after supply of milk to Gurukul. He along with Akram was having a torch, they kept on
flashing the torch and when they reached near the turning at about 09:00 PM, four persons
met them on the way. They were Nepal, Tejbir, Ved Pal and Raj Kumar of the village. They
were having separate country made pistols. On seeing Rahman, Nepal, Raj Kumar and Ved
Pal exhorted to kill him. Thereupon accused Tejbir fired at Rahman (deceased), who, on
being injured, fell down. He further deposed that after the incident 2-3 unknown persons met
at the place of occurrence and they were told by this witness to inform at his home about the
incident. After sometimes, his son Asghar and other persons reached Gurukul, to whom he
4 All. Tej Bir & Ors. Vs. State of U.P.
589
told about the incident. Thereupon, his son by sitting at the same place written the report and
left for police station Manglaur and thereafter Injured was taken to Muzaffarnagar Hospital,
where he breathed his last. (emphasis added).

46. From the perusal of the above statement of PW-3, Allah Rakha it transpires that it
was a dark night and while they were moving forward, they were flashing torch to see the
pathway, which goes to suggest that they were even not in a position to see the pathway
without the light of the torch. When pathway was not clearly visible to the witnesses, how
they have seen all the four accused were having country made pistols in their respective
hand. Further the conduct of the witnesses after the incident was also improbable inasmuch
as after the occurrence, the injured instead of being taken to the hospital, he was taken to
Gurukul and made him to lay on the road, waited for the arrival of his son and after the
arrival of his son, he narrated the entire story to him, thereafter, he wrote the first
information report by sitting on the road and thereafter, his son went to the police station to
get the first information report lodged and this witness (PW-3 Allah Rakha) along with PW-2
Akram, took the injured to Muzaffarnagar, where he succumbed to his injuries. The aforesaid
conduct of PW-3, Allah Rakha clearly shows that no one has seen the assailants and after the
occurrence, the FIR has been lodged after due consultation with each other dragging the
appellants in the case due to previous enmity. Further there is certain discrepancy in his
evidence inasmuch PW-3, Allah Rakha in his examination-in-chief deposed that on the next
day of the occurrence, Daroga Ji met him and inspected his torch, whereas in his cross
examination he stated that Daroga Ji has inspected his torch after one month of the
occurrence.

47. In view of the above, the conviction of the sole surviving appellant Tejbir cannot
be made on the testimony of sole eyewitness PW-3, Allah Rakha, who is uncle of the
deceased and whose evidence does not inspire confidence.

48. It is a settled law that enmity is a double-edged weapon. On one hand, it provides
motive, on the other hand it also does not rule out the possibility of false implication. From
the nature of the evidence placed on record by the prosecution, the possibility of the
present appellanTejbir being falsely implicated on account of previous enmity cannot be
ruled out. In our opinion, therefore, the appellant is entitled to benefit of doubt.

49. In view of the above, we are of the view that the prosecution has failed to establish
the guilt of the appellant-Tejbir beyond all reasonable doubt.

50. Accordingly, the appeal is allowed. The order dated 19.12.1989 passed by the
Special/Additional District and Sessions Judge, Saharanpur in ST No. 662 of 1988
convicting and sentencing the appellant Tejbir to life imprisonment under Section 302 IPC
is set aside. The appellant-Tejbir is acquitted of the charge levelled against him.

51. The appellant-Tejbir is on bail. His bail bond is cancelled and sureties are
discharged.
590 INDIAN LAW REPORTS ALLAHABAD SERIES

 52. Office is directed to send a copy of this order to the court concerned for
compliance and compliance report be submitted to this Court within two months.
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(2026) 4 ILRA 590
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2026

BEFORE

THE HON'BLE AVNISH SAXENA, J.

Criminal Appeal No. 2403 of 1988

Shalauddin & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Issue for consideration
Matter pertains to unlawful assembly.

Headnotes
Indian Penal Code-Sec. 307 - Appellants shown to be the part of unlawful assembly -charged for the
offence of rioting, armed with deadly weapon- no evidence on record to show when the unlawful assembly
was created and when the common object to eliminate injured was found- the injured has suffered gun shot
injury-injury report does not contain either the signatures or the thumb impression of the injured - nothing on
record to show that the police was informed and the injured was admitted in the hospital- three accused who
remain unidentified have merely been disclosed to attract Section 141 IPC- five accused with three unnamed,
unidentified and without description for identification-prosecution has failed to establish guilt- judgment of
conviction and sentence set aside.- Criminal Appeal allowed. (E-9)

Case Law Cited
1. Mohan Singh and another Vs. State of Punjab, 1962 SCC On Line SC 82; AIR 1963 SC 174
2. Ashok Kumar Chaudhary Vs. State of Bihar, (2008) 12 SCC 173
3. M. Nageshwara Reddy Vs. State of Andhra Pradesh and others, (2022) 5 SCC 791
4. State of Punjab Vs. Gurpeet Singh and others, (2024) 4 SCC 469
5. Jitendra Kumar Mishra alias Jittu Vs. State of Madhya Pradesh, (2024) 2 SCC 666

List of Acts
Indian Penal Code, 1860

List of Keywords
Unlawful assembly; common object; unidentified; gun shot injury.

Appearances of parties
Counsel for Appellant(s) : Digvijay Tiwari, Intekhab Alam Khan, Krishna Ji Khare
Counsel for Respondent(s) : A.G.A.

(Delivered by Hon'ble Avnish Saxena, J.)