# The State of U.P. (In Jail) v. Kalim Ullah & Ors

- **Citation:** (2021) 3 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-18
- **Case number:** Criminal Appeal No. 348 of 1984
- **Bench:** Ramesh Sinha, Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-state-of-u-p-in-jail-v-kalim-ullah-ors-46983
- **Pages:** 31

## Headnote

matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 147, 148, 302,
149-challenge
to-conviction-
dying
declaration of the deceased which has been
recorded by P.W. 3 suffers from many
infirmities
on
fact
and
law-
dying
declaration of the deceased is a forged and
fabricated document-The trial Court has
given
cogent
and
good
reasons
to
disbelieve the said dying declaration as the
same has not been recorded in the
presence of a Magistrate.-Moreover, there
is no fitness certificate given by the doctor
showing
whether
the
deceased
was
conscious to give such a dying declarationdeceased, who was Ex. Chairman of town
area was a political person and was having
some inimical relationship-the evidence of
P.W. 1, and 2 are concerned, the incident is
said to have taken place at 10:30 p.m. in
the night and the reason given for being
present at the place of occurrence of P.W. 1
and 2 and other persons, who were sitting
at the door of the deceased for discussing
about the meeting of town area and while
discussion being going on, the deceased
went to his workshop which was at 200
paces to see the repair work and when the
deceased did not return for sometime, P.W.
1 and 2 and some other went to search the
deceased at his workshop and they saw the
incident,
is
not
a
reliable
one-
the
Investigating Officer, who reached the
place of occurrence did not find any repair
work going on in the workshop nor any
labourers or persons of the area gathered
at the place of occurrence at the time of
incident-The story for having conversation
with the deceased at his door, appears to
be cooked up-on the appraisal of evidence,
the lower appellate court rightly passed the
judgment of acquittal.(Para 1 to 49)
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
881
B. While exercising the powers in appeal
against the order of acquittal the court of
appeal would not ordinarily interfere with
the order of acquittal unless the approach
of the lower court is vitiated by some
manifest illegality and the conclusion
arrived at would not be arrived at by any
reasonable person and, therefore, the
decision
is
to
be
characterized
as
perverse. Merely because two views are
possible, the court of appeal would not
take the view which would upset the
judgment delivered by the court below.
However, the appellate court has a power
to review the evidence if it is of the view
that the view arrived at by the court
below is perverse and the court has
committed a manifest error of law and
ignored the material evidence on record. A
duty is cast upon the appellate court, in
such circumstances, to reappreciate the
evidence to arrive at a just decision on the
basis of material placed on record to find
out whether any of the accused is
connected with commission of the crime
he is charged with.(Para 45)

The appeal is dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,947 of 108,935. This is a partial read: ask again with offset=39947 for what follows._

880 INDIAN LAW REPORTS ALLAHABAD SERIES
disputed. Even their injuries are fully
corroborated by the medical evidence.
Thus, on the basis of the medical and
ocular evidence, we are fully satisfied that
the prosecution has been able to prove its
case beyond reasonable doubt. It is also not
a case where injured witnesses can be said
to be planted one.

52. We have carefully perused all the
evidence on record. We are convinced that
prosecution evidence is trustworthy and
prosecution has brought home the guilt of all
the appellants by cogent, credible and
trustworthy evidence.

53. In the light of the aforesaid
discussion, we do not feel that any
interference
is
warranted.
Impugned
judgment of conviction is hereby affirmed.
Accordingly, the instant criminal appeal is
dismissed. Appellants, who are on bail, are
directed to surrender immediately. Their bail
is cancelled and sureties are discharged. Trial
court is also directed to get them arrested and
send them to jail to serve out the sentence
awarded by trial court and affirmed by this
judgment.

54. Let a copy of the judgment be sent
to the court concerned through Sessions
Judge, within fifteen days. The trial court
shall thereafter report compliance within one
month.
----------
(2021)03ILR A880
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.03.2021

BEFORE

THE HON'BLE RAMESH SINHA , J.
THE HON'BLE RAJEEV SINGH, J.

Criminal Appeal No. 348 of 1984
The State of U.P. ...Appellant(In Jail)
Versus
Kalim Ullah & Ors. ...Opposite Party

Counsel for the Appellant:

Counsel for the Opposite Party:
--

A.
Criminal
matter-Code
of
Criminal
Procedure,1973-Section 374(2) & Indian
Penal Code, 1860-Sections 147, 148, 302,
149-challenge
to-conviction-
dying
declaration of the deceased which has been
recorded by P.W. 3 suffers from many
infirmities
on
fact
and
law-
dying
declaration of the deceased is a forged and
fabricated document-The trial Court has
given
cogent
and
good
reasons
to
disbelieve the said dying declaration as the
same has not been recorded in the
presence of a Magistrate.-Moreover, there
is no fitness certificate given by the doctor
showing
whether
the
deceased
was
conscious to give such a dying declarationdeceased, who was Ex. Chairman of town
area was a political person and was having
some inimical relationship-the evidence of
P.W. 1, and 2 are concerned, the incident is
said to have taken place at 10:30 p.m. in
the night and the reason given for being
present at the place of occurrence of P.W. 1
and 2 and other persons, who were sitting
at the door of the deceased for discussing
about the meeting of town area and while
discussion being going on, the deceased
went to his workshop which was at 200
paces to see the repair work and when the
deceased did not return for sometime, P.W.
1 and 2 and some other went to search the
deceased at his workshop and they saw the
incident,
is
not
a
reliable
one-
the
Investigating Officer, who reached the
place of occurrence did not find any repair
work going on in the workshop nor any
labourers or persons of the area gathered
at the place of occurrence at the time of
incident-The story for having conversation
with the deceased at his door, appears to
be cooked up-on the appraisal of evidence,
the lower appellate court rightly passed the
judgment of acquittal.(Para 1 to 49)
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
881
B. While exercising the powers in appeal
against the order of acquittal the court of
appeal would not ordinarily interfere with
the order of acquittal unless the approach
of the lower court is vitiated by some
manifest illegality and the conclusion
arrived at would not be arrived at by any
reasonable person and, therefore, the
decision
is
to
be
characterized
as
perverse. Merely because two views are
possible, the court of appeal would not
take the view which would upset the
judgment delivered by the court below.
However, the appellate court has a power
to review the evidence if it is of the view
that the view arrived at by the court
below is perverse and the court has
committed a manifest error of law and
ignored the material evidence on record. A
duty is cast upon the appellate court, in
such circumstances, to reappreciate the
evidence to arrive at a just decision on the
basis of material placed on record to find
out whether any of the accused is
connected with commission of the crime
he is charged with.(Para 45)

The appeal is dismissed. (E-5)

List of Cases cited:

1. Laxman Vs St. of Mah. (2002) AIR SC 2973

2. Balbir Singh & OrsVs St. of Punj. (2006) AIR
SC 3221

3. Munni Devi & Ors. Vs St. of U.P. (2020) 5 ALJ
653

4. Mrinal Das & Ors. Vs St. of Tripura (2011)
AIR SC 3753

5. Basappa Vs St. of Karnataka (2014) II ACC 1
SC

6. St. of U.P. Vs Moti Lal Srivastava & Ors
(2016) 94 ACC 817

(Delivered by Hon'ble Ramesh Sinha, J.)

1. This criminal appeal has been filed
by the State against the judgment and order
dated 19.01.1984 passed by IInd Additional
District & Sessions Judge, Barabanki by
which the accused-respondents have been
acquitted for the offence under sections
147, 148, 302, 149 I.P.C. in S.T. No. 410 of
1982.

2. Out of five accused persons three
accused-respondents, i.e., respondent nos.
1, 2 and 5, namely, Rafiullah, Naimullah,
Kalimullah have died during the pendency
of the appeal and the appeal on their behalf
has already been ordered to be abated by
Co-ordinate Bench of this Court vide order
dated
19.10.2020.
Hence
this
Court
proceed to hear the appeal with respect to
accused-respondent nos. 3 and 4, namely,
Habibullah and Mohammad Ansar only.

3. The brief facts of the case are that
an F.I.R. was lodged by one Haji Fazal-urrahman at police station Zaidpur, District
Barabanki stating that his brother Misbahur-rahman was Chairman of town area
Zaidpur. He was having enmity with one
Dr. Habiullah and Sajid Ali with respect to
election of town area and also with one
Naimullah with regard to auction of a
house. Rafiullah and Ansar Ahmad also
belong to his party. On 30.5.1982 at about
9:30 p.m., Misbah-ur-rahman had gone to
his old workshop (Karkhana) in which
these days, Hakim Fatehpuri is residing.
The informant, who is the cousin of Sri
Misbah-ur-rahman, was sitting at the door
of
Misbah-ur-rahman
along
with
Mohammad Sabir, Mohammad Muslim,
Sultan Ahmad, Ali Mohammad and Atiq.
When Misbah-ur-rahman did not return for
a long time then the informant along with
the said persons sitting at door of Misbahur-rahman, had gone in his search towards
his workshop (Karkhana). When they
reached on the road at the door of
Mohammad Yaseen, they heard the shriek
882 INDIAN LAW REPORTS ALLAHABAD SERIES
of Misbah-ur-rahman, i.e., 'bachao-bachao'
on which they rushed towards the direction
from where the shriek of Misbah-urrahman come and reached in front of the
house of one Ramzan where they saw that
Ansar Ahmad had tightly caught hold the
neck of Misbah-ur-rahman from behind and
one Rafiullah s/o of Rahmatullah fired shot
at the chest of Misbah-ur-rahman from a
close range. On the alarm raised by the
informant
and
other
persons,
Dr.
Habibullah, Kaleemullah and Naimullah,
who were standing under the Pakar tree had
threatened them for dire consequences in
case they intervened, hence on account of
fear, they did not move and Rafiullah and
Ansar Ahmad fled away. Thereafter, Dr.
Habibullah, Kaleemullah and Naimullah
also fled away on a motorcycle. On the
basis of said written report of Fazal-urrahman, an F.I.R. was registered at police
station Zaidpur, District Barabanki as case
crime no. 38 of 1982 under section 307
I.P.C.
against
five
accused
persons,
namely, Rafiullah, Ansar Ahmad, Dr.
Habibullah, Kaleemullah and Naimullah.

4. Just after the incident, the injured
was taken to Primary Health Centre, Zaidpur
at 11:05 p.m. by the informant and other
persons where P.W. (3) Dr. Muneeruddin, the
then Medical Officer, P.H.C., Zaidpur, had
conducted medico-legal examination of the
injured and had provided first aid to him. The
doctor
had
also
recorded
the
dying
declaration of Misbah-ur-rahman in the
presence of certain witnesses which has been
marked as Ex. Ka-3. Since the condition of
the injured was very serious, he was taken to
Civil Hospital, Barabanki where P.W. (6) Dr.
Shahjahan has given treatment to Misbah-urrahman at about 12:05 A.M., on 31.06.1982.
As the condition of the injured was
deteriorated, he was taken to Balrampur Civil
Hospital, Lucknow where unfortunately at
about
3:00
a.m.,
on
31.05.1982,
he
succumbed to his injuries.

5. P.W. (1) Haji Fazal-ur-rahman had
informed the concerned police station about
the fact that injured Misbah-ur-rahman had
died at Balrampur Civil Hospital, Lucknow.

6. Sri S.N. Singh, the then Station
Officer of police station, Zaidpur, who was
entrusted with the investigation of the case,
had
completed
the
investigation
and
submitted
charge-sheet
against
all
the
accused persons before the Court concerned.

7. The case was taken up by the then
Chief Judicial Magistrate Barabanki and has
committed the case to the Court of Session.

8. On 03.08.1982, the Session Judge,
Barabanki framed charges against all the
accused persons for the offence under
sections 147, 148, 302 read with section 149
I.P.C.

9. Since, all the accused persons
denied the allegations and charges and had
claimed trial, the prosecution was called
upon to lead evidence in support of the
charges.

10. Prosecution in support of its case
has examined P.W. 1 Haji Fazal-urrahman, P.W. 2 Mohammad Muslim, P.W.
3 Dr. Muneeruddin, P.W. 4 S.I. Shiv
Narain Singh, P.W. 5 Dr. S.C. Srivastava,
P.W. 6 Dr. Shahjahan.

Ram Balak Mishra was examined
as Court witness.

11. The accused persons were
examined
and
their
statements
were
recorded under section 313 Cr.P.C. All of
them denied the allegations and had
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
883
pleaded their false implication in the
present case on account of enmity and
claimed their trial.

12. The accused persons were called
upon to lead evidence on which they filed
certain documents in support of their case.

13. P.W. 1 Haji Fazal-ur-rahman, who
was the informant of the case and cousin
brother of the deceased, had reiterated the
present case as has been stated by him in
the F.I.R. He stated about the enmity
between the deceased and accused-Dr.
Habibullah on account of election of town
area. He also stated about the enmity
between
the
deceased
and
accused
Naimullah which was with respect to
auction of a house. He deposed before the
trial Court that on the day of incident, while
sitting at the door of Misbah-ur-rahman, he
was having conversation with the deceased
and
Mohammad
Sabir,
Mohammad
Muslim, Sultan Ahmad, Ali Mohammad
and Atiq for convening a meeting of town
area. It was moon light and after informing
the informant and other persons with whom
he was having conversation, the deceased
went to see his workshop (Karkhana)
where some repair work was going on. The
deceased told them that he would return
after some time and talk to them. The
distance of the workshop of the deceased
from his house was about 200 paces. He
stated that when the deceased did not return
for about 45 minutes, then the informant
along with the said persons sitting with
him, went towards the workshop of the
deceased to talk to him and when they
reached on the road near the house of
Yaseen, they heard the shriek of the
deceased, i.e., 'bachao-bachao' on which
they rushed towards the direction from
where the shriek came and on reaching near
the house of one Ramzan, they saw the
incident taking place in front of the house
of one Abdul Hai. The witness stated that
he saw that accused Ansar caught hold the
neck of the deceased from behind and
accused Rafiullah had shot the deceased by
country made pistol from a close range and
when the witness and other person tried to
save the deceased, accused Dr. Habibullah,
Kaleemullah and Naimullah, who were
standing
under
the Pakar
tree,
had
threatened them for dire consequences in
case they come forward. The incident had
taken place on the road near the house of
Ramzan. After the incident, accused
Rafiullah and Ansar Ahmad fled away
towards West and accused Dr. Habibullah,
Kaleemullah and Naimullah, who were
standing under the Pakar tree, had fled
away on a motorcycle towards South. The
witness identified all the five accused
persons, who were present in the Court, to
be of his locality. The witness stated that he
along with other persons reached the place
of occurrence where the deceased was
lying holding his wound with his hand. The
witness along with other persons took him
to P.H.C. Zaidpur where the doctor took
him in his room for providing first aid and
after 15-20 minutes, the doctor asked them
to take the deceased to Civil Hospital,
Barabanki on which the witness and other
persons took him to Civil Hospital
Barabanki. There he got a report about the
incident written by Mohammad Shamim
and after reading over the same, he found
that Mohammad Shamim wrote the same
what he dictated to him. Thereafter, he put
his signature on the same which is marked
as Ex. Ka-1. The deceased remained alive
in Primary Health Centre, Zaidpur, Civil
Hospital
Barabanki
and
Balrampur
Hospital, Lucknow and on the next day at
3:00 a.m. in the morning, he succumbed to
his
injures
at
Balrampur
Hospital,
Lucknow.
884 INDIAN LAW REPORTS ALLAHABAD SERIES

14. In his cross examination, the
witness has stated till the time when he was
present at the place of occurrence, no
labourer or Hakim Fatehpuri, who had
taken one portion of the workshop
(karkhana) of the deceased on rent, had
arrived at the place of occurrence. He also
did not meet them in the hospital though
many other persons have gathered and on
the next day when the dead body of the
deceased was brought to Lucknow for
cremation then the labourers and Hakim
Fatehpuri along with other persons had
come. The witness further deposed that as
per his knowledge, the deceased was not
having any litigation with any other person
except the accused persons with whom he
was having two litigations. He admitted the
fact that in the year 1977 proceedings under
section 107 Cr.P.C. was initiated against
the deceased but he was not aware of the
fact whether the witnesses Sabir and Sultan
Ahmad were party in the said case or not.
He further deposed that the deceased while
being injured was taken from his workshop
(karkhana) to the hospital till then the
ladies of the family had not come either at
the place of occurrence or at the hospital.
30-40 persons have reached the hospital.
He stated that the neck of the deceased was
caught hold by accused Ansar by one hand
and by other hand he caught the hand of the
deceased. The accused Ansar did not have
any weapon in his hand. He stated that
accused Rafiullah had shot at the deceased
from a close range, i.e., 4-5 finger-breadth
and in his report, he has written that the
deceased was shot at his chest from point
blank range as it was equal distance. In the
report, he had written that the neck of the
deceased was caught hold from behind. It
was rightly written. He further deposed that
he had written in his report that the
deceased had received one single shot as he
had witnessed the same. It has not come in
his
knowledge
that
the
doctor
has
mentioned only one injury. There was no
conversation between him and the doctor
regarding the fact that the deceased has
received only one injury and did not
receive any second injury. The witness
further stated that on the third day of the
incident, he came to know that the doctor
had taken the statement of the deceased. He
did not go to the hospital to see the said
statement. He came to know that the
deceased had given statement against two
accused persons and so far as other three
accused are concerned, he could not
recognize them. He denied the suggestion
that the deceased was not taken in the room
of the doctor and was seen by the doctor in
the corridor (Varandah). He denied the
suggestion that in collusion with the doctor
and the police, the statement of the
deceased was fabricated. The deceased
knew English and he could also sign in
English and he occasionally used to put his
signature in short in English and some time
in full. It was deposed by the witness that
he did not have any conversation with the
deceased while he was being taken to the
hospital from the place of occurrence till he
reached the hospital nor any other persons
had talked to him. Till the time, he reached,
P.H.C. Zaidpur, he did not disclose to
anyone the name of the accused. He denied
the suggestion that he did not see the
incident. He further denied the suggestion
that the place where the deceased was done
to death is not the one which was stated but
the other one. He also denied the
suggestion that in collusion with the doctor
and the police, he got a false report written.
He also denied the suggestion that the fact
with respect to conversation regarding
meeting and the documents have been
fabricated under some legal advise just to
create
evidence
against
the
accused
persons. He admitted the fact that he and
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
885
the deceased are the sons of one mother
though their fathers are different.

15. P.W. 2 Mohammad Muslim in his
deposition before the trial Court has
supported the prosecution case as has been
stated by P.W. 1 in his examination in
chief, hence is not repeated for the sake of
brevity.

16. He denied the suggestion that he
had not seen the incident and is falsely
deposing against the accused persons.

17. P.W. 3 Dr. Muneeruddin in his
deposition before the trial Court has stated
that on 30.05.1982, he was posted as
Medical Officer at P.H.C. Zaidpur, District
Barabanki. On the said date at about 11:05
p.m., he had examined the injured Misbahur-rahman son of Hidayat Rasool and
found the following injury on his person:-

"Injury no. 1:- An abraded fire
arm wound 2.0 cm. x 2.0 cm. x intra
abdomiinal with blackening of margin 6.0
cm. x 8.0 cm. situated in epigastrium. C/o
severe pain in abdomen."

18. He stated that the said injury
could be caused on 30.05.1982 at about
10:30 p.m. by fire arm such as country
made pistol. He recorded the dying
declaration of the deceased and he has
written the same word by word what was
stated by the deceased. After writing the
same it was also read over to the deceased
and thereafter, the deceased put his
signature on the same. He has proved his
hand writing and signature on the dying
declaration which has been marked as Ex.
Ka-3.

19. In his cross examination, he has
stated that when the injured was brought
before him, there were 4-6 persons along
with him and there was neither any police
constable nor S.I. On the said date, he did
not meet the S.I. till the injured was in his
hospital.
At
the
time
of
medical
examination, no outsider is allowed to
come. Generally 2-4 persons of the Qasba
beside his staff were present at that time. At
the time of medical examination, he had
directed some persons to remain inside his
room and rest were asked to go outside.
The reason for keeping injured under
observation was different. He could not
ascertain the nature of injury. He stated that
the reason for keeping the injured under
observation is that whether the injured
could survive and according to his
observation, the injured could survive for
about two hours but he did not either
mention the same or told anyone about the
said fact. He did not know as to what time,
the injured died. Subsequently, he came to
know
that
on 31.05.1982,
he died.
According to the witness, if the injured
could have been operated in emergency at
Barabanki hospital and proper medicine
would have been given to him, he could
survive. In preparing the injury report of
the injured, he took about half an hour. It
took ten minutes to record the dying
declaration. He admitted the fact that prior
to recording the said dying declaration, he
did not record any dying declaration. As it
was night and there was no conveyance, he
did not immediately send the injured to
Barabanki Sadar Hospital but he told the
family members of the injured that he may
be taken to Barabanki as his treatment is
not possible there. The deceased was
known to the witness prior to the incident.
From the person, who have brought the
injured to the hospital, he came to know
that no report about the incident had been
lodged at the police station. He was well
aware of the fact that cognizable offence
886 INDIAN LAW REPORTS ALLAHABAD SERIES
has taken place, hence information to the
police is necessary but he did not inform
about the same either to the police Chauki
or police station on his own as the persons,
who brought the injured to the hospital had
stated that they would go to the police
station. He did not know the name of the
person, who has stated that he is going to
lodge the report as he did not return again.
He could not tell much about the person,
who told him that he is going to lodge the
report. On the next day of incident at about
7-8 a.m., he came to know that a report of
the incident has been lodged at the police
station and from whom, he came to know
about the said fact, he did not know. He
had received an application from the police
asking for injury report of the injured from
which he came to know that report of the
incident has been lodged. By the said
application, the injury report and the dying
declaration were asked from him. The said
application was brought by one constable.
He did not meet Station Officer Sri S.N.
Singh either on 31.05.1982 or any other
day. He had kept the said application in the
register of the injury report and given to the
constable,
who
has
brought
said
application. He had also taken a receiving
of the injury report and dying declaration in
the register by the said Constable. He was
not aware of the fact that the dying
declaration was to be sent directly to the
Magistrate.
He
had
kept
the dying
declaration in an envelope and sealed the
same and sent to the police as he thought
that the police would require the same with
respect to investigation of the case. On the
dying declaration, he did not get any
signature of the police personnel. The
Investigating Officer has recorded his
statement under section 161 Cr.P.C. From
the person, who have brought the injured to
him, he had asked to bring two respectable
persons
before
recording
the
dying
declaration then they put forwarded two
persons and said that they are respectable
persons. The witness stated that out of said
two witnesses of the dying declaration, he
only recognize Afzul-ur-rahman as he
know him from before by his face as well
as by name but so far as the other witness
of the dying declaration, namely, Ashfaq is
concerned, he was not known to him either
by name or by face and only on the asking
of Afzal-ur-rahman, he has made him as
witness of the dying declaration. In P.H.C.,
Zaidpur though there was electricity
connection but at the time of examination
of injury, the electricity supply of the area
was disconnected and till the medical
examination was being conducted, the
electricity supply did not resume, hence the
entire exercise was conducted in the light
of lantern and torch. A car had come at the
hospital in his presence which took the
injury to Barabanki hospital. The said car
belong to Haji Daroga and the said car had
arrived before he completed the injury
report. After completing the injury report,
he immediately let the injured go. As the
injured himself was complaining about pain
and suffered pain, therefore, he wrote the
same. After completing the entire exercise
no respectable person had come to him
either in the night or in the morning. He
denied the suggestion that as the injured
was in much pain, he did not get his
signature on the injury report and got his
thumb impression on the same. He stated
that in the injury report only thumb
impression are being affixed in order to fix
the identity. As in the dying declaration, he
had got the signature of the injured, hence
he did not get his thumb impression on the
same. He stated that as the injured was in
such a condition that he could put his
signature, hence he got his signature on the
dying declaration. At the time of recording
of the dying declaration, it did not click in
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
887
his mind that while recording dying
declaration, a certificate has to be given
that the person whose dying declaration is
being recorded is in a fit state of mind and
is conscious. He denied the suggestion that
the dying declaration is fabricated one with
malafide intention. He also denied the
suggestion that in the dying declaration a
forged signature of the deceased got done.
He also denied the suggestion that till
31.05.1982, no dying declaration was
written, hence the same was not send to the
Magistrate. He told the persons, who have
come with the injured, that the injury is
grievous in nature but he did not remember
whether he told them that the injury was of
fire arm or not.

20. On the query made by the Court,
the witness had stated that there is practice
for getting thumb impression on the injury
report and on this issue whether there is
any direction or rule, he is not aware of the
same.

21. P.W. 4 Shiv Narain Singh in his
examination in chief before the trial Court
has stated that from May, 1982 to July,
1982, he was posted as Station Officer at
police station Zaidpur, Barabanki. On
30.5.1982, written report of present case
(Ex. Ka-1) was submitted at the police
station on the basis of which chik report
was prepared by Head Moharir Satya
Narain Tiwari on which he has put his
signature. He identified the hand writing
and signature of the said Head Moharir and
proved the same as Ex. Ka-4. In G.D. No.
29, Head Constable Brij Bhawan Singh has
endorsed the registration of the F.I.R. in his
presence which is in the hand writing and
signature of Constable Brij Bhawan Singh
as he is acquainted with the same. A carbon
copy of which is marked as Ex. Ka.-5 on
which he has also put his signature. The
F.I.R. of the present case was registered
under section 147, 148, 149, 307 I.P.C. The
injured had not come to the police station
in his presence. On 31.05.1982, he along
with S.I. Bharat Tiwari, Constable Tej
Bahadur Singh, Mathura Prasad Chaubey,
Harnam Singh and Mukesh Singh reached
the place of occurrence in Mohalla
Badapur, Qasba Zaidpur and recorded the
statement of the informant Haji Fazal-urrahman and at his pointing out he had made
a spot inspection of the place of occurrence
along with him and prepared site plan. He
proved the same as Ex. Ka-6. He arrested
accused Naimullah and Kalimullah from
their house. They were hiding in their
house and on getting the door of their
house opened, they made an attempt to flee
away from there but were arrested. On the
same day, he brought the said two accused
and lodged them in police lock-up for
which he himself made an endorsement in
G.D.-14 dated 31.05.1982. The original
G.D. which was in his hand writing and
signature is before him. Copy of which he
had filed in the Court, is marked as Ka-7.
On the same day, he received an
application
from
Fazal-ur-rahman
regarding the death of Misbah-ur-rahmanthe deceased for which an endorsement was
made in G.D. No. 6 by Constable Moharir
Brij Bhawan Singh and the case was
converted under section 302 I.P.C. The
original G.D. which was before him was
written by Brij Bhawan Singh-Constable
Moharir in his hand writing and signature.
He proved the same as he was acquainted
with his hand writing and signature, carbon
copy of the which is marked as Ex. Ka.-2.
On the same day, he recorded the statement
of the witnesses, namely, Mohammad
Sabir, Mohammad Muslim and Sultan
Ahmad under section 161 Cr.P.C. He had
sent Constable Mathura Prasad Chaubey to
P.H.C. Zaidpur calling for the injury report
888 INDIAN LAW REPORTS ALLAHABAD SERIES
and the dying declaration of the deceased
so that there may not be any interpolation
in the same. He had put his signature on the
dying declaration so that there may not be
any manipulation or changes in the same.
He also perused the injury report and had
send the dying declaration to the Court of
C.J.M. in pursuance of the order of the
Court. He also recorded the statement of
the witnesses of the dying declaration,
namely, Afzal-ur-rahman and Ashfaq on
1.6.1982. He further made search for the
accused but they could not be traced. On
2.6.1982, he took the statement of Dr.
Muneeruddin of P.H.C. Zaidpur under
section 161 Cr.P.C. On 3.6.1982, he made
search in pursuance of warrant issued
against accused Habibullah, Rafiullah and
Ansar Ahmad but they could not be traced.
On 4.6.1982, he after getting order for
initiating proceedings under section 82 and
83 Cr.P.C. reference of which has been
made in G.D. No. 19, he got the attachment
proceedings under section 82 Cr.P.C. of the
house of accused Habibullah done in the
presence of witnesses and list of articles
which were recovered from his house was
prepared and copy of the same was given to
the father of accused Habibullah, namely,
Siraj Ahmad. The articles which were
attached were submitted in the Malkhana of
the concerned police station along with
G.D. No. 30. He has also proved G.D. No.
9-30 prepared by Constable Brij Bhawan
Singh which was in his hand writing and
signature and has filed a copy of the same
in his signature marked as Ex. Ka-10. He
has
further
proved
the
attachment
proceedings against accused Rafiullah and
Ansar Ahmad executed on 5.6.1982 under
his writing and signature and proved as Ex.
Ka-11 and 12. The attachment of properties
of two accused was submitted in police
Malkhana endorsement of the same has
been mentioned in G.D. No. 14. The
original G.D. was in the hand writing and
signature of Brij Bhawan Singh. He filed a
copy of the same and proved as Ex. Ka-13.
On 10.06.1982, he submitted charge-sheet
against accused Rafiullah, Ansar Ahmad
and Dr. Habibullah. He has proved the
charge-sheet which is in his hand writing
and signature as Ex. Ka-14. He proved the
Ex. Ka-15, i.e., sealed packets by which
some
pellets,
panchayatnama
and
postmortem were submitted by S.I. Raj
Bahadur Singh endorsement of which is
made in G.D. No. 21 which was prepared
by Constable Moharir Laxman Yadav in
his writing and signature. He has also
proved Ex. Ka. 16-24 and further a sealed
envelope in which some pellets were kept
which were recovered from the body of the
deceased, received at the police station
from the doctor, who had conducted the
post mortem of the deceased at Lucknow as
material Ex. Ka-1. On opening of the said
envelope 22 pellets and one tikli were
received. The pellets have been marked as
material Ex. Ka.-2 whereas Tikli has been
marked as material Ex. Ka-3. On the
information given by the informant Haji
Fazal-ur-rahman about the death of the
injured, there is signature of Fazal-urrahman. He has proved the same as Ex. Ka4. The S.I. Ram Chandra Gupta had
interrogated the accused in jail.

22. In his cross examination, he has
stated that on the Western side of the road
which goes to the hospital from the
workshop of the deceased, police station
Zaidpur is at a distance of one and half
farlong. On the date of incident he returned
to the police station between 9:30-10:00
p.m. and remained in the police station
whole night. The deceased was known to
him. At 11:50, the information about the
incident was received at police station. The
informant stated that the injured has been
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
889
sent to Barabanki. On receiving the
information, he went to the place of
occurrence but he could not receive any
information about the incident. Till night,
the witness did not make any report of the
incident and only made efforts to search the
accused. The informant had not informed
him that a dying declaration of the injured
was recorded by the doctor at P.H.C.
Zaidpur. He was not aware of the fact about
the dying declaration whole night. On
31.05.1982, at morning, he came to know
about the fact that the doctor at P.H.C.
Zaidpur had recorded the dying declaration
of the deceased. He sent Constable Mathura
Prasad to the doctor for getting the dying
declaration and prior to it he had recorded
the statement of the informant under
section 161 Cr.P.C. He admitted that in
spite of the fact that he is an experienced
S.I., he did not have any knowledge about
the fact that the person, who write the
dying declaration is obligated to send the
same to the Court concerned. He called
upon the dying declaration so that there
may not be any interpolation in the case
and the doctor may not make any changes
in the same as generally doctors make
changes in the dying declaration, hence he
had called upon the same immediately. It
was in a sealed cover. He opened the dying
declaration and put his signature on the
same but inadvertently he could not
mention in the case dairy that he had broke
open the seal of the envelope and taken out
the dying declaration. After breaking the
seal put on the envelope, he did not either
kept the same or its sample seal safely with
him. He sent the envelope in which dying
declaration was sent to him by the doctor,
to the Court which is on record. He did not
send the dying declaration immediately to
the Court as he thought that the same was a
part of investigation. He is not aware of the
fact that any application was given to the
S.P. Barabanki that he in collusion with the
doctor of P.H.C. Zaidpur and S.O. of
Zaidpur police station, had prepared a
forged fabricated dying declaration. On
receiving the order of the Court, he sent the
dying declaration on 31.05.1982. In the
case dairy, there is no endorsement that
when, how, by whom and where the dying
declaration was sent. He told the fact about
sending
the
dying
declaration
on
31.05.1982 as per his memory. He denied
the suggestion that he had told to the Court
that he had sent the dying declaration on
31.05.1982 just to make out a case. On
01.06.1982, he has sent all the documents
which were prepared by him during the
course of investigation upto 31.05.1982, to
S.P. Barabanki. He has not mentioned
about sending of documents on 1.6.1982 in
the case dairy and he is making the said
statement as per his memory. Though in the
case dairy, he had written that he has sent
papers to S.P. Barabanki on 31.05.1982 but
actually it was sent on 1.6.1982. Again the
witness has stated that he cannot tell
whether
the
documents
which
were
prepared upto 31.05.1982, were sent to S.P.
Barabanki from police station between
1.6.1982 to 4.6.1982 or not as the dispatch
register is not before him. On 31.05.1982,
he has given the disputed dying declaration
in his office so that the same may be sent in
pursuance of the order of C.J.M. as there is
an order of the C.J.M. that if there is any
dying declaration the same may be sent
immediately. He proved paper no. 14
which was on the committing file of the
present case. It was in the hand writing and
signature of the witness. It was circled by
red ink which is marked Ex. Kha.-1. He
stated that whatever written in red circle is
correct. He stated that he cannot tell
whether
the
dying
declaration
was
submitted by him or someone else had
submitted the same. After receiving the
890 INDIAN LAW REPORTS ALLAHABAD SERIES
order of the C.J.M., he submitted the
disputed dying declaration. In the case
dairy, he has not mentioned whether the
order was a written order or oral. The date
on which the order of a Court is received,
its endorsement is made on the same day in
the G.D. The G.D. of 31.05.1982 was
before the witness in which there is no
mention of any order of the C.J.M. The
G.D. dated 1.6.1982 was before the witness
in the same also there is no endorsement of
any order of the C.J.M. Similarly the G.D.
of 2.6.1982 and 3.6.1982 were before the
witness in which also there was no mention
about the order of the C.J.M. He cannot tell
when the first paper (parcha) of the case
dairy reached to the Office of Circle
Officer. The first Parcha is dated 1.6.1982
which is bearing the seal but who has
signed the same he cannot tell. He is not at
all conversant with the signature of the then
C.J.M. He denied the suggestion that on
31.05.1982, he did not receive the order of
the C.J.M. At that time Harbaksh Singh
was Pairokar in his police station and he
also cannot identify his signature. The
witness further stated that on 6.6.1982, he
had gone to workshop of the deceased
where he met Hakim Mohammad Rafi and
prior to it he did not go to the said
workshop, hence there was no question to
meet Hakim. During the course of
investigation, he could not come to know
that to make the workshop of the deceased
running there was any repair work going on
on the day of incident. Near the place of
occurrence, he had not taken the statement
of witness and only recorded the statement
of Ramzan. He has arrested accused
Naimullah and Kalimullah from their
residence at 11:15 a.m. and as because of
the incident there was tension prevailing,
the said two accused were not sent to Sadar
on the same day. On 31.05.1982 at 7:30
a.m. in the morning, the information about
the death of the deceased was received at
the police station. He did not record the
statement of Mohammad Shamim, who
was the scribe of the both the F.I.R. as well
as the information about the death of the
injured as he did not feel it necessary. He
did not recover anything relating to the
incident from the place of occurrence. He
did not found any blood on the place of
occurrence. 2-3 months prior to the
incident, he had heard rumor that he would
be transferred from police station Zaidpur.
He also heard that in order to get his
transfer stop a rally had gone to meet the
S.P. Sadar thereafter he did not hear the
rumor regarding his transfer. The deceased
and his family members were influential
persons of the Qasba. He did not know that
the deceased and his family members
belong to any party. He denied the
suggestion that the said rally which was
taken out was at the instance of family
members of the deceased. He denied the
suggestion that the report of the incident
was prepared on 31.05.1982 with his
consultation and thereafter a forged and
fabricated dying declaration was prepared
in collusion with the doctor. The site plan
and other papers were also concocted and
fabricated in collusion with the informant.
He further denied the suggestion that the
case dairy of the present case and other
papers are all fabricated and concocted.

23. P.W. 5 Dr. S.C. Srivastava in his
deposition before the trial Court has
submitted that on 31.05.1982, he was
posted as Medical Officer in Civil Hospital
Lucknow and on the said date he was on
duty for conducting the post mortem. On
the said date at 1:30 p.m. in the afternoon
the dead body of Misbha-ur-rahman son of
Hidayat Rasool was sent for post mortem
by S.O. Wazeerganj, Lucknow to him
which was brought in a sealed condition by
3 All. The State of U.P. Vs. Kalim Ullah & Ors.
891
Constable Ambrish Singh. He broke open
the seal and identify the dead body. The
deceased had died in Balrampur Hospital,
Lucknow
on
31.05.1982.
He
found
following ante mortem injuries on the dead
body of the deceased:-

"Injury no. 1:- fire arm wound
on the front of the chest 2 cm. x. 2cm.
margins (wound of entry) 1.5 cm. above
xiphisternum. Blackening and tattoing
present around the wound 9 cm. x. 7 cm..

Injury no. 2:-Contusion on the
left side abdomen 14 cm. x 12 cm. at the
level of embolism & 13 cm. left to it"

24.