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AFR

Judgment reserved on 24.09.2019.

Judgment delivered on 29.11.2019.

Court No. 1

Criminal Appeal No. 5018 of 2009.

Mashook & Others vs. State of U.P.

Connected with

Criminal Appeal No. 4699 of 2009

Shafique and another vs. State of U.P.

Hon'ble Ramesh Sinha, J.

Hon'ble Ajit Kumar, J.

(Delivered by Ramesh Sinha, J.)

1.As both the appeals arise out of same judgment and

order, hence the same are hereby decided by this common

judgment and order.

2.The present appeals have been directed against the

judgment and order dated 29.7.2019 passed by Additional

Sessions Judge, Court No. 7 Saharanpur in S.T. No. 738 of

2007 State vs. Mashooq and others by which all the appellants

have been convicted under section 147 I.P.C. and sentenced to

undergo one year imprisonment with a fine of Rs. 1,000/-

whereas all the appellants have been convicted under section

148 I.P.C. and sentenced to undergo two years R.I. with a fine

of Rs. 1,000/- further all the appellants have convicted under

section 302/149 IPC and have been sentenced to undergo life

imprisonment with a fine of Rs. 15,000/- whereas appellant nos.

1 and 4 have been convicted under sections 25/4 Arms Act and

have been sentenced to undergo one year imprisonment and a

fine of Rs. 2,000/- and appellants nos. 2 and 3 have been

convicted under section 25 Arms Act and have been sentenced

to under one year imprisonment and a fine of Rs. 2,000/-

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Appellants Shafique and Babar were also convicted under

section 147 I.P.C. and sentenced for one year R.I. with a fine of

Rs. 1000/- and also convicted under section 148 I.P.C. for 2

years R.I. with a fine of Rs. 1,000/-. All the sentences have been

ordered to run concurrently.

3.As per the report of the C.J.M., Saharanpur dated

13.9.2019, the appellant Shafique died during the pendency of

the appeal on 19.12.2009, hence the appeal on his behalf is

abated and the Court proceed to hear the appeal on behalf of

other appellants.

4.The prosecution case in nutshell is that a written report

(Ext. Ka.1) was submitted by one Arshad son of Sadiq resident

of Sarsava, District Saharanpur which was written by one

Gulzari Lal stating that on 28.4.2007 at about 8 p.m. his brother

Gayyur son of Sageer after offering Namaz in the Mosque was

returning to the house and when he was about enter in the house

at the door, the accused persons, namely, Mashooq, Mahfooz,

Sonu sons of Mahbeeob @ Bobby, Shafiqueue son of Hafeez,

Babar son of Shafiqueue and Iliyas son of Mumtaz all residents

of Mohalla Mirdhan, Qasba & police station Sarsawa, District

Saharanpur, who were armed with sword and saria, standing

from before with a common object to kill assaulted Gayyur on

his neck, face and abdomen, who was badly injured because of

earlier enmity. On raising alarm by him Galib, Usman, Ashraf,

Naeem and Nisha-sister of Gayyur and Razia wife of Gayyur

arrived at the place of occurrence and the said incident was

witnessed by them in the light of torch. Thereafter, Gayyur was

taken to the District hospital Saharanpur in injured condition

but on the way he succumbed to his injuries. The dead body of

the deceased was kept in the hospital. The written report was

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submitted by P.W. 1 Arshad at police station Sarsawa for taking

appropriate action against the accused persons.

5.In pursuance of the written report submitted by P.W. 1

Arshad on 28.4.2007, an F.I.R. (Ext. Ka.2) was registered on

the same day at 22:40 p.m. at police station Sarsawa against the

accused persons which was registered as case crime no. 138 of

2007 for the offence under sections 147, 148, 149 and 302/34

I.P.C. The F.I.R. was also endorsed in the G.D. No. 43 (Ext. Ka.

3) at 22:40 p.m. The police reached the place of occurrence and

inquest on the dead body of the deceased was conducted on

28.4.2007 Ext. Ka 20. The other police papers were prepared

such as police form No. 13 Ext. Ka. 31, Challan Lash Ext. Ka.

21, Photo Lash Ext. Ka. 22, letter to R.I. Ext. 23, letter to

C.M.O. Ext. Ka. 24. The investigating officer made a spot

inspection of the place of occurrence and prepared the site plan

Ext. Ka. 25 and also collected the simple soil and blood stained

soil from the place of occurrence Exts. Ka 4 and 5. The post

mortem of the deceased was conducted on 29.4.2007 Ext. Ka.

19. The investigating officer recorded the statement of the

witnesses under section 161 Cr.P.C. and submitted charge-sheet

against 10 accused persons, i.e, six accused persons named in

the F.I.R., i.e., the appellants, along with four other accused

persons, namely, Rashid, Sajid, Intezar and Sabez under

section 147, 148, 149, 302/34 I.P.C Ext. Ka. 39.

6.On 7.5.2007, the appellant Iltaf @ Altaf was arrested by

the police and from his possession weapon of assault, i.e., knife

and Maruti Van bearing registration no. HR-01 H 8925 was

recovered and fard recovery memo of the same was prepared

and Ext. Ka. 27. On the basis of said fard recovery memo, an

F.I.R. was registered against Iltaf @ Altaf on 7.5.2007 under

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section 4/25 Arms Act Ext. Ka 12 and the same was also

endorsed in the G.D. No. 15 which was proved as Ex. Ka 13.

The investigating officer prepared the site plan of the recovery

and Ext. Ka 37. Charge-sheet was submitted against accused

Iltaf @ Altaf under section 25/4 Arms Act Ext. Ka. 18. On

8.5.2007, the appellants Mashooq, Mahfooz and Sonu were

arrested by the police and from the possession of Mashooq a

country made pistol of 315 bore along with two cartridges were

recovered and from the possession of Mahfooz and Sonu a

sword was recovered. Fard recovery memo of the weapons

recovered from the said accused were prepared Ext. Ka. 20. The

same was also endorsed in the G.D. dated 8.5.2007 at 16:30

p.m. Ext. Ka 14. On the basis of said recovery memo three

separate F.I.Rs., i.e., case crime nos. 153 of 2007, 154 of 2007

and 155 of 2007 were registered against three appellants under

section 25 Arms Act and 4/25 Arms Act respectively which

were endorsed in G.D. No. 32 marked as Ex. Ka. 16. The site

plan of the place of recovery was also prepared by the

investigating officer Ext. Ka. 31.

7.After finding sufficient evidence against the said three

accused, charge-sheet was submitted against accused Mashooq

under section 25/4 Ext. Ka. 34, against accused Mahfooz under

section 25 Arms Act Ext. Ka. 35 and against accused Sonu

under section 25 Arms Act Ext. Ka. 36 and requisite sanctions

for their prosecution under the Arms Act was also obtained

from the District Magistrate Saharanpur Exts. Ka. 29 and 30

respectively. Thereafter the case was committed to the Court of

Sessions. The trial court framed charges against the accused

appellants on 11.12.2007 under section 147, 148, 149, 302

I.P.C. On 11.1.2008 against accused appellants charges were

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framed for the offence under section 120B I.P.C. along with co-

accused Rashid, Sajid, Intezar and Sabez. The accused denied

the charges and claimed their trial.

8.The charges were also framed against accused Mashooq

and Iltaf @ Altaf under section 25/4 Arms Act and against

accused Mahfooz and Sonu under section 25 Arms Act on

14.11.2009 and the said case was also committed to the Court

of Sessions. The accused pleaded not guilty and claimed their

trial.

9.The prosecution in support of its case has examined P.W.

1 Arshad-the informant of the case, P.W. 2 Nisha wife of

Ghalib, P.W. 3 Mohammad Usman, P.W. 4 Constable Pramod

Kumar, P.W. 5 Constable Peepan Singh, P.W. 6 Dr. R.K. Goel,

P.W 7 S.I. Sripal Rana, P.W. 8 Irfan and P.W. 9 Rishiram

Katheria.

10.The accused in their statement under section 313 Cr.P.C.

have denied the prosecution case. They have stated that the

witnesses have falsely deposed against them and due to enmity

they have been falsely implicated.

11.P.W. 1 Arshad in his deposition before the trial court has

stated that appellants Mashook, Mahfooz, Sonu, Shafiqueue,

Babar and Iltaf @ Altaf, who are accused in the present case are

known to him as they are residents of Mohalla Mirdhan

Sarsawa and all the accused are related to each other. The

deceased Gayyur was an accused in the murder case of

Mahmood @ Bhure and was facing trial in the court of

Saharanpur for the last 16-17 months prior to the incident in

which Gayyur was on bail. Mahmood was a historysheeter and

was having enmity with deceased Gayyur. On 28.4.2017, i.e.,

on the day of incident, the witnesses was present at the house of

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Gayyur. At 8 p.m. in the evening, Gayyur after offering Namaz

in the Mosque was returning to his house and when he reached

near his house the accused Mashooq, Mahfooz, Sonu, Babar

and Iltaf @ Altaf came out of whom accused Sonu and

Mahfooz were armed with country made pistol, accused

Mashooq and Iltaf @ Altaf were armed with sword and

Shafiqueue and Babar were armed with sharp edged saria and

with an intention to kill Gayyur assaulted him with their

respective weapons on account of which Gayyur received

serious injuries on his person. On the alarm raised, the

witnesses, namely, Ghalib, Usman, Ashraf, Nisha sister of

Gayyur, Razia wife of Gayyur and Margoob brother of Gayyur

arrived, who saw the incident in the electric light. The accused

thereafter fled away in a Maruti Van which was parked nearby.

At the place of occurrence blood was lying. On account of

receiving of injuries, the condition of Gayyur was deteriorated.

He was taken to Saharanpur hospital but on the way he died.

His body was kept in the hospital. He got the report of the

incident written by a boy. He wrote the same whatever he told

to him. Thereafter he put his signature on the same and gave it

at police station Sarsawa. After seeing paper no. 5, he proved

the said written report as Ext. 1. He deposed before the trial

court that he told the scribe of the report about the fact that

Gayyur was assaulted by firearm but on account of hurry he

forgot to mention the same, hence he told the same to the S.I. at

police station in his statement recorded under section 161

Cr.P.C.

12.In his cross examination, the witness has stated that he

studied upto 3-4 classes. He had put his signature on the written

report (Ext. Ka.1) without reading the same and the person,

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who wrote the written report had not read out the same to him.

He has submitted the written report at police station at 10:30-

10:40 p.m. At that time the Station Officer was present at the

police station. After he submitted the written report, the

investigating officer recorded his statement. The witnesses has

stated that he is resident of village Kunda from where Sarsawa

is 3 kms. away. The agricultural work is done from Kunda and

elderly people of his family used to reside at Kunda. He has no

rented accommodation in Sarsawa. He is still unmarried. He

denied the suggestion that the accused Shafiqueue was not

related to accused Mahfooz and others. He was not aware of the

fact that whether the name accused Iltaf @ Altaf is in the voter

list of Sarsawa or not neither he is having any knowledge about

his having any ration card. Iltaf @ Altaf used to reside in

Sarsawa on rent. Prior to the present incident, the deceased

Gayyur was facing criminal trial under section 302 I.P.C. for the

murder of Mahmood and there was also another case on Gayyur

for the murder of Dr. Kamil and his wife in which a

compromise was entered between the parties. He denied the

suggestion that Gayyur was amongst top 10 criminals of police

station Sarsawa. Gayyur had also faced trial for the murder of

son of Dr. Kamil, namely, Pappu in which also compromise

took place between the parties. The second son of Dr. Kamil

was Arshad. Gayyur had 100 bighas of land on which witness

was engaged in the agricultural work. Gayyur had two children

aged about 2 and 5 years respectively. He stated that in the

F.I.R. he had written that he was present in the house and if the

same has not been mentioned in the F.I.R. he could not tell any

reason for the same but he told about the same to the

investigating officer in his statement under section 161 Cr.P.C.

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He had further mentioned in the F.I.R. that accused Shafiqueue

and Babar were armed with sharp edged weapon if the same has

not been mentioned in the F.I.R. he could not tell any reason

about the same. The thickness of saria was about 3" but the

same was not sharp edged. The sword was three feet long.

Accused Iltaf @ Altaf was also having a small sword. Accused

Iltaf @ Altaf and Mashooq both of them had assaulted the

deceased with their respective weapons four times each. At the

time of incident, he was at a distance of 10-12 paces from the

place of occurrence. Mosque is about 150 paces from the place

of occurrence towards West. All the witnesses reached the place

of occurrence on hearing the alarm and he was the first person

to reach the place of occurrence and thereafter the sister of

Gayyur, namely, Nisha, Razia wife of Gayyur came together

and after that Ashraf, Naim, Usman, Ghalib and other witnesses

reached at the place of occurrence. Margoob also reached

thereafter. The house of Usman is near the house of deceased

Gayyur. The witness made an effort to save the deceased but the

accused pointed country made pistol on him. The scribe of the

report had met him all of sudden and he was not known to him.

He was resident of Yamunanagar. He had written the same what

was dictated to him. Before signing the report it was not read

out to him as he was in hurry and disturbed.

13.P.W. 2 Nisha wife of Ghalib, who is sister of deceased

Gayyur has supported the prosecution case as has been stated

by P.W. 1 and she deposed before the trial court that on

28.4.2007 she had come to her brother's house as on the next

day her brother Margoob's engagement ceremony was to be

solemnized in district Meerut and other relatives had also

assembled in the house for the said purpose. On the night of the

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incident, she along with sister-in-law Razia and brother of his

Bua, namely, Arshad were having conversation while sitting in

courtyard (Sahan). While, his brother Gayyur after offering

Namaz in the Mosque was coming to the house accused

Mashooq, Mahfooz, Sonu, Babar and Iltaf @ Altaf came

together and assaulted him with their respective weapons.

Accused Sonu and Mahfooz were armed with country made

pistol, accused Mashooq and Iltaf @ Altaf were armed with

sword and Shafiqueue and Babar were armed with saria on

account of which he was badly injured. On the alarm raised,

Ghalib, Usman, Margoob and Ashraf arrived and witnessed the

said incident in the light of invertor. The accused fled away in a

Maruti van and when she saw her brother in a pool of blood she

was frightened and her condition became bad. At the place of

occurrence blood was lying. In the injured condition, his

brother was taken to Saharanpur hospital but on the way he

succumbed to his injuries.

14.In her cross examination, the witness has stated that she

had come to the house of the Gayyur three days prior to the

incident. The investigating officer had taken her statement

under section 161 Cr.P.C. at the house of Gayyur. After the

incident the police had arrived. She had told the investigating

officer that his brother Margoob's engagement was to be

solemnized at Meerut with the daughter of Sadiq. The distance

between the main door of the house and the place of occurrence

is about 10 paces. On hearing the fire shots all of us reached at

the place of occurrence.

15.P.W. 3 Mohammad Usman in his statement recorded

before the trial court, has supported the prosecution case and

deposed that on 28.4.2007 at about8 p.m. he along with Ghalib

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was returning from market and when they reached near the

house of Gayyur then they saw that Mahfooz and Sonu were

firing shot at Gayyur whereas accused Mashooq and Iltaf @

Altaf armed with Sword, Shafiqueue and Babar armed with

saria were assaulting Gayyur with their respective weapons

mercilessly on account of which his condition became critical.

Beside him, the said incident was witnessed by Ashraf, Arshad,

Naim, Nisha sister of the deceased, Razia wife of the deceased

in the electric light. The accused fled away along with their

weapon in a Maruti van which was parked near the place of

occurrence. Gayyur was rushed to Saharanpur hospital in a

critical condition where he was declared dead.

16.In his cross examination, the witness has stated that he is

the son of real Tau of Gayyur and at the time of incident he was

returning from market along with Ghalib. The witness used to

do Imamat in the Mosque. The Mosque was situated in the

Bazar. His statement under section 161 Cr.P.C. was recorded by

the Investigating officer after one month of the incident and

thereafter the statement of Ghalib was recorded by the

investigating officer. He had come to the market with Gayyur.

No one tried to rescue the deceased as the accused had pointed

country made pistol on them on account of which they were

frightened and did not say anything. He has seen sharp edged

saria which was 1 and 1/2 inches thick and three feet long in

the hands of Shafiqueue and Babar. He denied the suggestion

that on account of the fact that he was the brother of the

deceased he is falsely deposing against the accused.

17.P.W. 4 Constable Pramod Kumar, who is the formal

witness has stated before the trial court that on 28.4.2007 on the

written report submitted by Arshad, he prepared the chik F.I.R.

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in his writing and proved the same as Ext. Ka-2 and further

endorsed the same in the G.D. in his writing and original copy

and carbon copy of the same has been proved by him as Ext. Ka

3. He has proved various police papers as Exts. 4 to 18 at

regular intervals.

18.In his cross examination, the witness has admitted that

the deceased was a history-sheeter registered at his police

station. There is a history-sheet opened against him being

History-sheet No. 31A. He further deposed that the station

officer immediately after registration of the F.I.R. has left for

the place of occurrence. The distance of police station from the

place of occurrence is about 700-800 meters.

19.P.W. 5 Constable Peepan Singh in his deposition has

stated that on 28.4.2007 and 29.4.2007 he was posted at police

station Sarsawa as Constable and the inquest of the dead body

of the deceased Gayyur was conducted by the S.I. Sripal Rana,

who had appointed Punch witnesses in his presence and sent the

dead body of the deceased Gayyur to mortuary at district

hospital Saharanpur. The dead body was sealed there and

sample seal was also prepared along with other police papers

and the same was handed over to him along with constable

Pramod Kumar for being handed over to the doctor for

conducting postmortem so long as the dead body was in sealed

condition.

20.P.W. 6 Dr. R.K. Gautam has stated before the trial court

that on 29.4.2007 he was posted at District Hospital as Medical

Officier (Chest Officer) and at 12:30 p.m. in the afternoon he

conducted the post mortem of the deceased and found following

injuries on his person:-

"1.Incised wound 8 cm. x 1.5 cm. x bone deep on the left

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frontal region with fracture of underlying bone.

2.Incised wound 15 cm. x 3 cm. bone deep in the left

mandible region and left lateral surface of neck and fracture

of mandible.

3.Incised wound 6 cm x 2 cm. on the lateral surface of

left side neck.

4.Incised wound 3 cm. x 1 cm. on the lateral surface of

pharyngeal region on the left. side.

5.Incised wound 10 cm. x 4 cm. on the post surface of

right side neck.

6.Incised would 14 cm x 4 cm on the Rt mandible region

with fracture of Rt. mandible.

7.Gunshot wound of entry 3 cm. diameter on the lateral

surface of right upper arm in the deltoid region with fracture

of Rt. humerus.

8.Gunshot wound of exit 2 cm. diameter on the medial

surface of right upper arm, margin inverted.

9.Gunshot wound of entry 1.5 cm. diameter on the

lateral surface of right side chest. margin inverted.

10.Incised wound 8 cm. x 1 cm. on the outer surface of

abdominal wall 5 cm. above the umbilicus.

11.Incised wound 7 cm. x 1 cm. on the outer surface of

abdominal wall 4 cm. below umbilicus, margin of wound

clean.

12.Gunshot wound of entry 2.5 cm. diameter on the base

of skull.

13.Incised wound 23 cm. x 3 cm. on the outer surface of

upper part of outer surface of thigh.

14.Incised wound 8 cm. x 3 cm. on the outer surface of

middle of 1/3 of left thigh.

15.Incised wound 8 cm. x 2 cm. on the outer surface of

right leg 20 cm. below the right knee joint.

16.Incised wound 5 cm. x 1 cm. on the outer surface of

right leg 30 cm. below the right knee joint.

17.Gunshot wound of entry 3 cm. diatere on the lat

surface of upper part of right thigh."

21.He has proved the post mortem report as Ext. Ka-19.

22.On internal examination he found various bones of the

body including parietal bone etc. to be fractured. The lungs the

chest were also lacerated. Metallic bullet was recovered from

the left side of the lung. One metallic bullet was embedded in

the brain tissue.

23.He has stated that the death of the deceased had taken

place on 28.4.2007 at 8:00 p.m. Out of the injuries found on the

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dead body of the deceased, injury nos. 1 to 6 and 10, 11, 14 and

16 were of sword, knife and sharp edged saria and injury nos. 7,

8, 12 and 17 could be caused by fire arm weapon.

24.In his cross examination, he has stated that there was no

blackening or charring on the gun shot injury. He could not tell

the distance by which the fire was shot at the deceased. The

injuries on the body of the deceased could be also caused by

sharp edged weapon.

25.P.W. 7 S.I. Sripal Rana on being examined by the trial

court has deposed that on 28.4.2007 he was posted as Sub

Inspector and on the instruction of Station Officer Sarsawa he

prepared the inquest report of the dead body of the deceased in

his writing and proved the same as Ext. Ka. 20. He has also

prepared other police papers such as challan lash (Ext. Ka 21),

photo lash (Ext. Ka 22), letter to R.I. (Ext. Ka 23), letter to

C.M.O. (Ext. Ka 24). Took the soil sample on the spot and

thereafter handed over the dead body of the deceased to

Constable Peepan Singh and Pramod Kumar for being taken for

post mortem.

26.In his cross examination, the witness has stated that in the

inquest report in the column of injuries received by the

deceased, he has not mentioned about the gun shot injury. He

stated that if the same would have been there then he would

have written the same. He stated that the witness of the inquest

have not tell him anything about the incident.

27.The said witness was again recalled on 23.3.2009 and his

statement was recorded in which he has stated that the sanction

for prosecution of accused Mahfooz and Sonu under section 25

Arms Act was taken by the then District Magistrate and he has

proved the prosecution sanction of accused Mahfooz as Ext. Ka

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29 and the prosecution sanction of accused Sonu as Ext. Ka 30.

He has also made a spot inspection and prepared the site plan.

The original site plan is in the file of Mashook and carbon copy

of same is in the file of Mahfooz. He proved the same as Ext.

Ka 31 and 32. He proved the site plan of Sonu as Ext. Ka. 33.

After investigation charge-sheet was submitted against the said

three accused under the Arms Act which were marked as Exts.

Ka. 34 to 36. He has also investigated the F.I.R. of case crime

no. 151 of 2007 registered against Iltaf @ Altaf. During

investigation, he prepared the copy of the F.I.R., G.D., recorded

the statement of Rishiram Katheria, the informant of the case

and other police personnel, site plan of the place of occurrence

and marked as Ext. Ka. 37 and submitted charge-sheet under

section 25/4 Arms in his writing which is Ext. Ka. 38.

28.The station officer Brijesh Kumar was posted along with

him and he has seen him working and he was acquainted with

his hand writing and signature thus he proved the charge-sheet

(Ext. 39) which was submitted by him in case crime no. 738 of

2007 under section 147, 148, 149, 302/34 and 120B I.P.C.

29.P.W. 8, who is the witness of fact had turned hostile and

not supported the prosecution case.

30.He in his cross examination has stated that the

investigating officer has not recorded his statement, if the same

has been recorded, he could not tell any reason about the same.

31.P.W. 9 Rishiram Katheria was examined by the trial court

and he has stated that he was posted as Station Officer at police

station Sarswa on 28.4.2007 and in his presence the F.I.R. of the

present case was registered on 28.4.2007. He has taken the C.D.

and copy of the chik F.I.R. and G.D. He recorded the statement

of Head Moharrir Pramod Kumar and the informant Arshad at

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police station had proceeded to the place of occurrence along

with Sub Inspector Sripal Rana and other police personnel. He

had also instructed S.I. Sripal Rana to prepare the inquest report

of the dead body of the deceased Gayyur. He found the light of

invertor at the house of the deceased Gayyur where the

tubelight and bulbs were on. He inspected the place of

occurrence at the pointing out of the informant and prepared the

site plan in his writing and signature and proved the same as

Ext. Ka. 25. He collected the plain and blood stained soil from

the place of occurrence and prepare the sample seal in his

writing and signature and marked as Ext. Ka 26, recorded the

statement of the brother of the deceased, namely, Margoob and

Naim at 12 p.m. in the night. On 29.4.2007, he went to the

hospital where S.I. Sripal Rana, who prepared the necessary

papers and got the dead body of the deceased sealed. He also

recorded the statement of Irfan, Sajid and Zulfiquar, who were

in the hospital, who had stated about the conspiracy of the

murder of the deceased. They told that there was dispute

between Mahmood @ Bhure and Gayyur with regard to some

election, hence Mahmmod @ Bhure had assaulted Gayyur but

fortunately Gayyur survived and Mahmood was killed by

Gayyur. On 25.4.2007, they have stated that Rashid called a

meeting at his house and had given country made pistol and

knife to Mashook, Mahfooz, Sonu and Iltaf @ Altaf which was

brought by Sajid and Intezar and on 28.4.2007 the incident took

place. Gayyur was in a critical condition as he had suffered

injuries of country made pistol, knife and sword by which he

was assaulted and was succumbed to his injuries while being

taken to the hospital. He has recorded the statement of Arshad

under section 161 Cr.P.C. and added the offence under section

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120-B I.P.C. On 3.5.2007, he came to house of the informant

and recorded the statements of Smt. Razia and Nisha. He

further arrested accused Iltaf @ Altaf on 7.5.2007 at 8:15 a.m.

and recovered a Maruti Van bearing registration no. HR 01 H

8925 from Chilkana road near Grahmin turning. From his

possession a knife was also recovered description of which has

already been given in the fard recovery memo and when he was

questioned about the license for having possession of the same

he could not give the same. He prepared the fard recovery

memo in his writing and marked the same as Ext. Ka. 27. He

had deposited the knife as well as lodged the accused in lockup

and lodged an F.I.R. under section 25/4 Arms Act. On 8.5.2007

he arrested accused Mashooq, Mahfooz and Sonu and

recovered a sword from Mashooq, a country made pistol of 315

bore along with one live cartridge and one empty cartridge each

from accused Mahfooz and Sonu. The recoveries which were

made from all the three accused were sealed on the spot and

fard recovery was prepared at the spot and took the signatures

of the accused on the same. He proved the same as Ext. 28. The

accused were taken to the police station where against accused

Mashooq a case under section 25/4 Arms Act was registered

whereas against accused Mahfooz and Sonu case under section

25 Arms Act were registered. On. 19.5.2007, he arrested co-

accused Sajid. On 27.5.2007 under the orders of the Court he

interrogated accused Rashid, Intezar and Sabez and thereafter

he was transferred. The vehicle which was standing outside the

Court, i.e., HR 01 H 8925 recovered from accused Iltaf @ Altaf

was marked as Ext. Ka 1. He has proved the other recoveries

before the trial court which was opened before him as material

exhibits Ka-2 to 24.

17

32.In his cross examination on behalf of the accused, the

witness has stated that the statement of the informant Arshad

was recorded by him at the police station at 11 p.m. in the night

The witness Arshad had not stated to him that he was in his

house on the day of the incident but was present at the house of

Gayyur. Nisha in her statement under section 161 Cr.P.C. had

not told him that there was Margoob's engagement on the next

day. He has recorded the statement of Usman on 30.5.2007 at

the house of the deceased at 2-2:30 p.m. The witness has not

told him that Shafiqueue and Babar had assaulted Gayyur with

saria. In the F.I.R. the use of country made pistol has not been

mentioned. The informant had told him that the fact about the

use of country made pistol was dictated by him in the report but

the scribe of the report forgot to mention it. He admitted the

fact that accused Shafiqueue is a political person and the

deceased Gayyur was a man of criminal antecedents and was

sent to jail in a murder case. Whether he was a history-sheeter

or not he had no knowledge. At the time of recovery of the

Maruti van there was no public witness. The vehicle was being

driven by Iltaf @ Altaf himself. On the sword/knife which was

recovered from him no blood stain was found. The witness was

further cross examined and he admitted that in the F.I.R. there

has been no mention that the accused had come and gone on

vehicle nor the use of country made pistol has been mentioned.

He was present at the time of panchayatnama. He admitted that

joint recovery memo was prepared with respect to accused

Mashooq, Mahfooz and Sonu. He denied the suggestion that he

had not arrested the accused persons nor had prepared the fard

recovery memo.

33.The trial court after examining the prosecution evidence

18

and considering the defence version had convicted the

appellants for the offence in question and being aggrieved by

the same, the appellants preferred the present appeals.

34.Heard Sri Noor Mohammad, Sri Tripurari Pal and Sri

Sudhir Agarwal, learned counsel for the appellants, Sri Sanjay

Mishra, learned counsel for the complainant, Sri G.P. Pratap

Singh, learned A.G.A. for the State and perused the impugned

judgment and order and record.

35.Learned counsel appearing on behalf of appellant Iltaf @

Altaf has vehemently argued that he has been falsely implicated

in the present case on account of the fact that he was related to

co-accused Shafiqueue. He submitted that the appellant Iltaf @

Altaf has no motive whatsoever to commit the murder of

Gayyur as the same, if any, is with co-accused Mahfooz,

Mashooq and Sonu, who are the real brothers and whose

brother Mahmood was murdered by Gayyur because of enmity.

He argued that Gayyur was a history-sheeter and his history-

sheet has been opened at police station Sarsawa being history-

sheet no. 31-A as is evident from the statement of P.W. 4

Constable Pramod Kumar and he was a man of criminal

antecedents. He was done to death in some other manner and

not as stated by the prosecution. He next submitted that the

informant P.W. 1 Arshad happens to be cousin brother of the

deceased. His presence at the place of occurrence appears to be

doubtful as he had no occasion to be present at the place of

occurrence as he was a resident of village Kunda and the

incident had taken place at village Sarsawa which is about three

kms. away. It was pointed out that the scribe of the F.I.R.,

namely, Gulzari Lal from whom he got the written report

prepared was a resident of Yamuna Nagar a district of State of

19

Harayana and he being stranger and had no connection with

P.W. 1 it would not be possible that he would take his assistance

for writing the said report on the basis of which the F.I.R. has

been lodged against the accused persons. He further submitted

that the testimony of P.W. 1 is not worthy of credence, hence

the conviction of the appellants on the basis of his evidence by

the trial court is not sustainable. Similarly he has also assailed

the evidence of P.W. 2 Smt. Nisha, who is the real sister of

deceased Gayyur and has supported the prosecution case her

evidence also does not inspire confidence and cannot be relied

upon and it appears to be at the instance of police to work out a

case against the appellants and other co-accused persons. So far

as evidence of Usman P.W. 3 is concerned, his evidence is not

reliable one as he himself was an accused in a murder case

along with the deceased Gayyur and had also gone to jail which

is clearly evident from his evidence before the trial court. It was

argued by him that all the three witnesses are highly interested

and partisan witnesses and they are related to the deceased,

hence the conviction and sentence of the appellant Iltaf @ Altaf

by the trial court is bad and is liable to be set aside. So far as

recovery of knife from the appellant Iltaf @ Altaf and blood

stained earth from the place of occurrence is concerned, he

argued that as per the report of Serologist the blood found on

the knife was found to be disintegrated which goes to show that

the recovery of knife which was shown from the possession of

appellant Iltaf @ Altaf after nine days of the incident is

absolutely false one and moreover no blood was found on the

earth which was recovered from the place of occurrence which

further goes to show that the place of occurrence is doubtful.

Moreover, there is no independent witness of the said recovery,

20

hence the said recovery appears to be doubtful. In support of his

submissions, he has placed reliance on the judgment of the

Apex Court in the case of Balwan Singh vs. The State of

Chhattisgarh and another reported in 2019 0 Supreme (SC)

826. He has drawn the attention of the Court towards para-8 of

the said judgment which is reproduced hereunder:-

"8. The prosecution also relies upon the evidence relating to

recovery of sticks and tabbal which were bloodstained. Such

evidence may not be helpful to the prosecution in this case

inasmuch as there is no evidence to show that these articles

were stained with human blood, and more particularly with

blood of the same blood group as that of the deceased. As per

the Forensic Science Laboratory Report, the blood stains were

disintegrated, and their origin could not be determined.

In Sattatiya v. State of Maharashtra, (2008) 3 SCC 210, one of

the crucial factors that had led this Court to reverse the

conviction was that the bloodstains on the items seized in the

recovery could not be linked with the blood of the deceased.

This factor was treated as a serious lacuna in the case of the

prosecution.

Similarly, in Shantabai and Ors. v. State of Maharashtra,

(2008) 16 SCC 354, the bloodstains on some of the clothes

seized from the accused in recovery belonged to a different

blood group from that of the blood group of bloodstains found

on the clothes of the deceased and on the sample of soil, axe,

stones etc. which were taken from the spot by the investigating

officer. As a result of this mismatch, it was held that this

circumstance was not proved against the accused.

It is also important to note the following observations made by

a Constitution Bench of this Court in Raghav Prapanna

Tripathi & Ors. v. State of U.P., AIR (1963) SC 74:

“21. In this connection, reference may also be made to

circumstances 9 and 10, relating to the recovery of the

bloodstained earth from the house.

The bloodstained earth has not been proved to be

stained with human blood. Again, we are of opinion that it

would be far fetched to conclude from the mere presence of

bloodstained earth that earth was stained with human blood

and that the human blood was of Kamla and Madhusudhan.

These circumstances have, therefore, no evidentiary value.”

(Emphasis supplied) Therefore, the five judge bench had ruled

that in that case the prosecution needed to prove that the

bloodstains found on the earth or the weapons were of a

human origin and were of the same blood group as that of the

deceased."

21

36.Sri Tripurari Pal, learned counsel appearing on behalf of

rest of the three appellants has also assailed the presence of

three eye witnesses at the place of occurrence and argued that in

the F.I.R. the informant has only alleged a general allegation of

the deceased being assaulted by the accused persons with sword

and saria. He submitted that the country made pistol which is

said to have been used by the accused appellants Mahfooz and

Sonu are concerned the same does not find mention in the F.I.R.

that the said weapons were used by the accused Mahfooz and

Sonu respectively. He submitted that the specification of the

weapons have been made by the witnesses before the trial court

for the first time only and during the course of investigation the

same does not find place. He reiterated the arguments advanced

by Sri Noor Mohammad Advocate appearing on behalf of

appellant Iltaf @ Altaf for the other accused persons also that

the deceased was a man of criminal antecedents and he was

done to death in some other manner and not as stated by the

prosecution. So far as recoveries of country made pistol,

cartridges and sword which are said to have made at the time of

arrest of the appellants Mahfooz, Mashooq and Sonu by the

police are concerned, he submits that there is no independent

witness of the said recoveries, hence the same appears to be

doubtful. He next argued that so far as the motive for

committing the murder of the deceased Gayyur by the

appellants Mashooq, Mahfooz and Sonu it has been suggested

that their brother Mahmood @ Bhura was murdered by Gayyur

for which he was facing trial and on account of which the said

three brothers have committed his murder along with other

accused persons, is absolutely false as the deceased himself was

a history-sheeter and when he was done to death by some

22

unknown miscreants, the appellants have been falsely

implicated by the informant Arshad, who happens to be the

cousin brother of the deceased and two other eye witnesses,

namely, Nisha, who is the real sister of the deceased and Usman

cousin brother of the deceased stating that it was the appellants,

who along with other accused persons have committed the

murder of the deceased.

37.Sri Sudhir Agarwal, learned counsel appearing on behalf

of appellant Babar in the connected appeal has also assailed the

conviction and sentence of the said appellant and has adopted

the arguments advanced by learned counsel appearing on behalf

of other appellants and submitted that no recovery of any saria

was made from possession of the appellant and his false

implication in the present case cannot be ruled out. Thus, it has

been argued by learned counsel for the appellants that the

conviction of the appellants by the trial court is against the

evidence on record and the same be set aside and the appellants

be acquitted.

38.Per contra, Sri Gaurav Pratap Singh, learned A.G.A. for

the State has vehemently opposed the arguments of learned

counsel for the appellants and submitted that the F.I.R. of the

incident was lodged by P.W. 1 Arshad, who is the cousin

brother of the deceased promptly soon after the incident on the

same day at 22:40 p.m. at the concerned police station which is

1/2 km. away from the place of occurrence. He submitted that

the arguments regarding the presence of eye witnesses, namely,

Arshad-P.W.1 the informant and cousin brother of the deceased,

Nisha-P.W. 2 real sister of the deceased and Usman cousin

brother of the deceased at the place of occurrence cannot be

doubted as it has come in the evidence of P.W. 2 that the real

23

brother of the deceased, namely, Margoob's engagement

ceremony was to be solemnized on the next day of the incident

and all the members of the family and other relatives have

assembled in the house of the deceased and the accused, who

are three real brothers and other two accused, namely, Iltaf @

Altaf and Babar are also closely related to the three accused

whose brother Mahmood @ Bhure was murdered by the

deceased Gayyur they come to murder the deceased for taking

vengeance on the day of incident as the accused were fully

conscious that the deceased would be present in the house as

there was engagement ceremony of his brother Margoob giving

them advantage to kill him because of previous animosity

between the parties. He submitted that some discrepancies

which have been pointed out and argued by learned counsel for

the appellants that there has been general allegation against the

accused persons in the F.I.R. that they have assaulted the

deceased with sword and sharp edged sarias and no use of fire

arm weapon was mentioned in the F.I.R. and for the first time

specific role and use of fire arm have been deposed by the

witnesses before the trial court, is hardly of a significance

which may belie the prosecution case. He has drawn the

attention of the Court towards the statement of P.W. 1 in which

he has clarified and deposed that after the deceased, who was

his cousin brother, who was brutally done to death by the

appellants with sword country made pistol and saria and the

deceased after receiving as many as 17 injuries on his person,

was rushed to the hospital in a vehicle by the informant and

other persons and on the way he succumbed to his injuries. He

deposed that the scribe of the F.I.R. Gulzari Lal from whom he

took assistance in writing the written report and he dictated

24

about the incident as he was disturbed after the incident, the

report was not read over to him and had put signature and

submitted the same at the concerned police station for lodging

the F.I.R. against the accused persons though he has further

submitted in his deposition that he had dictated about the use of

fire arm weapon by the accused but inadvertently the same was

not mentioned by the scribe. He further submitted that Smt.

Nisha, who is the real sister of the deceased was quite natural

witness she was also present at the time of the incident and she

has narrated the entire version which was witnessed and the

same is corroborated by the medical report of the deceased.

Similarly P.W. 3 Usman also supported the prosecution case and

was natural witness, who was returning from the market and

witnesses and ocular testimony of the said witness corroborates

with the medical report. He submitted that the recoveries of

sword from accused Mahfooz, country made pistol from

accused Mashooq and Sonu sariya which was also used by

Babar goes to show that the ocular testimony cannot be

discarded as the same is fully corroborated by the medical

evidence. The country made pistol of 315 bore was sent to

Ballistic Expert and the use of the same was also found

corroboration as the three metalic bullets were recovered from

the body of the deceased also matched and the said weapons

were used in the crime which shows the participation of the two

appellants and further the other recoveries made from Mashooq

and Sonu and Altaf also shows its use as it has come in the

evidence of P.W. 1 that four times assault was made by Altaf

and Mahfooz by their respective weapons as 12 incised wounds

were found which was also caused by sharp edged sariya by

co-accused Babar. He has further drawn the attention of he

25

Court that the recovery of the Maruti van which belong to

appellant Mahfooz was recovered from Altaf @ Iltaf when he

was arrested by the police on 8.5.2007 and simply because the

said recoveries were not made before the independent witnesses

be discarded would not be correct as it has come in the

evidence of P.W. 8 that police had made effort to arrange

independent witnesses but no one was agreed to be a public

witness of the said recoveries. So far as argument of learned

counsel for the appellant Iltaf @ Altaf is concerned that no

blood was found on the earth collected from the place of

occurrence and further recovered knife which was recovered

from Iltaf @ Altaf no blood was found as it has been opined by

the Serologist to be disintegrated he submitted that some it

happens that the blood stains were disintegrate, and their origin

could not be determined, hence the conviction and sentence of

the appellants is fully justified on the basis of the evidence led

by the prosecution which is corroborated by the medical report,

hence the appeal be dismissed. In support of his submissions,

he has placed reliance on the judgment of the Apex Court in the

case of State of Rajasthan vs. Teja Ram reported in 1999

LawSuit (SC) 333. He has drawn the attention of the Court

towards para-25 of the said judgment which is quoted

hereinbelow:-

"Failure of the Serologist to detect the origin of the blood, due

to disintegration of the serum in the meanwhile, does not

mean that the blood stuck on the axe would not have been

human blood at all. Sometimes it happens, either because the

stain is too insufficient or due to hematological changes and

piasmatic coagulation that a Serologist might fail to detect the

origin of the blood. Will it then mean that the blood would be

of some other origin? Such a guess work that blood on the

other axe would have been animal blood is unrealistic and far

fetched in the broad spectrum of this ease. The effort of the

criminal court should not be to prowl for imaginative doubts.

Unless the doubt is of a reasonable dimension which a

26

judicially conscientious mind entertains with some objectivity

no benefit can be claimed by the accused. "

39.We have considered the rival contentions of learned

counsel for the parties and perused the record.

40.It is apparent from the record that the present incident

had taken place on 28.4.2007 at about 8:00 p.m. in which

Gayyur s/o-Sagheer was done to death by the appellants,

Mashooq, Mahfooz, Sonu sons of Mahboob, Shafique son of

Hafiz, Babar son of Shafique and Iltaf @ Altaf son of Mumtaz,

who were armed with sword, saria and country made pistol

respectively. The F.I.R. of the incident was lodged by P.W. 1

Arshad, who happens to be the cousin of the deceased on the

same day at 22:40 p.m. at the concerned police station which is

at a distance of 1/2 kms. from the place of occurrence. The

deceased received as many as 17 injuries on his person which

include incised wounds and gun shot injuries. The incident was

witnessed by the informant P.W. 1 Arshad along with Ghalib,

P.W. 3 Usman, Ashraf, Naeem and P.W. 2 Nisha, who is real

sister of the deceased and Razia wife of the deceased Gayyur.

The deceased was immediately rushed to the district hospital

Saharanpur by the informant but on the way he succumbed to

his injuries.

41.The accused appellants were arrested by the police and

charge-sheet was submitted against them for the offence in

question and under the Arms Act against accused Mahfooz,

Mashooq, Sonu and Iltaf @ Altaf. They were put to trial and

were convicted and sentenced by the trial court by passing the

impugned judgment and order.

42.The contention of learned counsel for the appellants that

the deceased was a man of criminal antecedents and he was also

27

registered as a history-sheeter at police station Sarsawa as

history-sheet no. 31A which is evident from the statement of

P.W. 4 Constable Pramod Kumar and so might have been done

to death in some other manner and not as stated by the

prosecution and further the presence of three eye witnesses of

the occurrence, namely, P.W. 1 Arshad, P.W. 2 Nisha and P.W. 3

Mohammad Usman at the place of occurrence is doubtful, is not

at all acceptable, as from a perusal of the evidence of three eye

witnesses, i.e., P.W. 1, 2 and 3 goes to show that their testimony

with respect to the incident is a consistent one as they have

stated before the trial court that they have seen the appellants

Mashooq armed with sword, Mahfooz and Sonu armed with

country made pistol of 315 bore, Shafique and Babar (now

dead) armed with Saria and Iltaf @ Altaf armed with knife

(talwarnuma chaku) and they had assaulted the deceased when

he was entering at the door of his house after offering 'Namaz'

in the mosque and on the alarm raised, all the witnesses

including the witnesses named in the F.I.R. including the three

eye witnesses, i.e., P.W. 1, 2 and 3 arrived at the place of

occurrence and saw the incident and further seen the appellants

fleeing away in a Maruti Van. The deceased was rushed to the

hospital but he succumbed to his injuries. The eye witnesses,

i.e., P.W. 1 Arshad, P.W. 2 Nisha and P.W. 3 Mohammad Usman

are though closely related to the deceased but their presence at

the place of occurrence is fully established and the trial court

examining their evidence, has convicted and sentenced the

appellants. P.W. 2 Smt. Nisha wife of Ghalib, who is the real

sister of the deceased has categorically stated before the trial

court in her evidence that she had come to the house of the

deceased, where he was living along with his brothers, as one of

28

her brothers, namely, Margoob's engagement ceremony was to

be performed on the next day of the incident in district Meerut

and for the said ceremony she along with other relatives had

gathered in the house. P.W. 1 has also categorically stated in his

deposition before the trial court that he was present at the house

of the deceased Gayyur on the date and time of the incident and

has witnessed the same along with other eye witnesses of the

occurrence. It is noteworthy to mention here that soon after the

incident when the deceased succumbed to his injuries, he got

the F.I.R. of the incident lodged at the police station after

getting the same written by one Gulzari Lal, who met him at the

police station, at 22:40 p.m. Similarly, P.W. 3 Mohammad

Usman has also deposed in his evidence before the trial court

that at the time of incident, he was returning along with Ghalib

to the house and when they reached near the house of the

deceased Gayyur, he witnessed the incident in the electric light.

The deceased was the son of his Tau and he was returning from

the market at that point of time along with Ghalib. Though

learned counsel for the appellants tried to show some

contradictions in the statements of three eye witnesses recorded

by the trial court but the contradictions in their statements are

not such which may throw out the entire prosecution case.

43.The motive to commit the murder of the deceased Gayyur

by the appellants is strong one as the three appellants, namely,

Mashooq, Mahfooz and Sonu are the real brothers and one

Mahboob @ Bhure, who was also their real brother was

murdered by the deceased Gayyur, who was facing trial in the

Court of Saharanpur for the last 16-17 months prior to the

incident in which he was on bail. The other appellants, namely,

Shafique, Babar and Iltaf @ Altaf also happen to be related to

29

the three appellants as it has come in the evidence of P.W. 1, 2

and 3, who participated in the murder of the deceased with a

common object to eliminate him on day of incident. Even if,

the deceased was a history-sheeter and a man of criminal

antecedents then too the involvement of the appellants for his

murder, cannot be ruled out in the light of the evidence of three

eye witnesses of the occurrence, who have deposed before the

trial court. Their ocular testimony fully corroborates the

prosecution case and their remains no iota of evidence to show

that the deceased being a man of criminal antecedents was done

to death by some unknown miscreants or the incident had taken

place in some other manner and not as stated by the prosecution

as has been argued by learned counsel for the appellants. The

another circumstance which goes to show that it was the

appellants, who were responsible for the murder of the

deceased is the recovery of weapons which have been made

from their possession when they were arrested by the police on

7.5.2007 and 8.5.2007 respectively. Learned counsel appearing

on behalf of appellant Iltaf @ Altaf has vehemently argued that

the said appellant was implicated in the present case only on

account of the fact that he happens to be related to appellants

Shafique and further the recovery of knife which was made

from his possession at the time of his arrest shows as per the

Serologist report that on the same disintegrated blood was

found which shows false recovery from his possession. The said

argument of learned counsel for the appellants is also not of

much relevance as from the report of Serologist dated

17/18.8.2007 it is apparent that the articles which were sent by

the Investigating Officer which include sword, knife the

weapon of assault, clothes and the plain earth and blood stained

30

earth in all said articles blood stains were found and on the

sword and clothes of the deceased human blood was found and

so far as the knife and blood stained earth are concerned

disintegrated blood was found on the same in this regard the

submission of the learned A.G.A. has substance.

44.Learned A.G.A. in reply to the arguments of learned

counsel for the appellants with respect to disintegrated blood

found on the knife and blood stained earth, has placed reliance

on the judgment of the Apex Court and has argued that some

times it happens, either because the stain is too insufficient or

due to haematological changes and plasmatic coagulation that a

Serologist might fail to detect the origin of the blood as has also

been observed by the Apex Court in para-25 of the judgment in

the case of State of Rajasthan vs. Teja Ram (Supra), therefore,

this cannot be a ground for setting aside the conviction and

sentence of the applicant Iltaf @ Altaf particularly when there is

eye witness account of the occurrence which is in the form of

P.W. 1, 2 and 3, who have witnessed the incident and the trial

court has rightly believed their testimony and convicted and

sentence the appellants.

45.Moreover, the case law which has been cited by Sri Noor

Mohammad of the Apex Court in the case of Balwan Singh vs.

State of Chhattisgarh (Supra), the Apex Court has considered

its earlier decision on the point reference of which is necessary

to be taken note of such as in the case of Jagroop Singh vs.

State of Punjab reported in (2012) 11 SCC 768, the Court had

ruled that as the recovery was made pursuant to a disclosure

statement made by the accused, and the serological report had

found that the blood was of human origin, the non

determination of the blood group had lost its significance.

31

46.In another case of State of Rajasthan vs. Teja Ram and

others reported in (1999) 3 SCC 507, the Court had observed

that the failure of the serologist to detect the origin of the blood,

due to disintegration of the serum, did not mean that the blood

stuck on the weapon could not have been human blood at all.

46.Further in the case of Balwan Singh (Supra), the Apex

Court in para-9 and 13 has held the proposition of law which

are reproduced hereunder:-

"9. We are also conscious of the fact that, at times, it may be

very difficult for the serologist to detect the origin of the blood

due to the disintegration of the serum, or insufficiency of blood

stains, or haematological changes etc. In such situations, the

Court, using its judicious mind, may deny the benefit of doubt

to the accused, depending on the facts and circumstances of

each case, if other evidence of the prosecution is credible and

if reasonable doubt does not arise in the mind of the Court

about the investigation.

Thus, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC

266, this Court had observed:

“31. A failure by the serologist to detect the origin of the

blood due to disintegration of the serum does not mean

that the blood stuck on the axe could not have been

human blood at all.

Sometimes it is possible, either because the stain is insufficient

in itself, or due to haematological changes and plasmatic

coagulation, that a serologist may fail to detect the origin of

the blood in question. However, in such a case, unless the

doubt is of a reasonable dimension which a judicially

conscientious mind may entertain with some objectivity, no

benefit can be claimed by the accused in this regard. Once the

recovery is made in pursuance of a disclosure statement made

by the accused, the matching or non matching of blood

group(s) loses significance.” Similar observations were made

by this Court in the case of Gura Singh v. State of Rajasthan,

(2001) 2 SCC 205, wherein it was observed that it was not

possible to accept the submission made on behalf of the

accused that in the absence of the report regarding the origin

of the blood, the accused could not have been convicted,

inasmuch as it was only because of the lapse of time that blood

could not be classified successfully.

32

In the case of State of Rajasthan v. Teja Ram and Others,

(1999) 3 SCC 507, the Court had observed that the failure of

the serologist to detect the origin of the blood, due to

disintegration of the serum, did not mean that the blood stuck

on the weapon could not have been human blood at all. In this

context, it was noted that it could not be said that in all cases

where there was a failure in detecting the origin of blood, the

circumstance arising from recovery of the weapon would stand

relegated to disutility. It was thus observed that unless the

doubt was of a reasonable dimension which a judicially

conscientious mind entertained with some objectivity, no

benefit could be claimed by the accused.

13. From the aforementioned discussion, we can summarise

that if the recovery of bloodstained articles is proved beyond

reasonable doubt by the prosecution, and if the investigation

was not found to be tainted, then it may be sufficient if the

prosecution shows that the blood found on the articles is of

human origin though, even though the blood group is not

proved because of disintegration of blood. The Court will have

to come to the conclusion based on the facts and circumstances

of each case, and there cannot be any fixed formula that the

prosecution has to prove, or need not prove, that the blood

groups match. "

48.In the case of Balwan Singh (Supra), the Apex Court

granted benefit to the accused as it was argued in the said case

that the investigation of the case was a tainted one and further

the prosecution had failed to prove that the blood recovered on

the weapon of assault was of human origin and further of the

same blood group as that of the accused, hence it doubted the

recovery made from the accused but in the instant case as the

serologist report, the articles item nos. 1 to 5 which included

knife and blood stained earth blood stains were found but

serologist further opined that in item no. 2 to 5 which are knife

and blood stained earth, blood stains were found to be

disintegrated, hence failed to detect the origin of the blood in

question, whereas on item nos. 1, 3 and 4 human blood was

found, therefore, the said case is distinguishable on the facts

and circumstances and cannot be made applicable in the instant

case and further there has been no argument made by learned

33

counsel for the appellants that the investigation of the case was

tained one and no malafides have been alleged against the

investigating officer of the case for the false recovery made

from the said appellant Iltaf @ Altaf.

49.It is further relevant to mention here that when the

appellant Iltaf @ Altaf was arrested by the police on 7.5.2007

then the Maruti van of appellant Mahfooz was also recovered

from his possession for which no explanation could be given by

the said appellant which is another circumstance to show his

involvement in the present case. So far as the argument of

learned counsel for the appellants that there was no independent

witness of the recovery, hence the recovery is doubtful, is also

not acceptable as it has come in the evidence of Investigating

Officer and the police personnel that efforts were made to

obtain independent witness but no one was ready to be the

witness of the recovery. Moreover, the recovery memo was

signed by the appellants which they have not disputed. So far as

recovery with respect to appellant Mashooq is concerned,

sword was recovered on 8.5.2007 from his possession and

blood stains were found on the same as per the report of

Serologist, hence his involvement in the murder of the deceased

stands proved taking into account the evidence of three eye

witnesses. Similarly country made pistol of 315 bore was also

recovered from the possession appellants Mahfooz and Sonu

when they were arrested by the police and the same was sent to

the Ballistic Expert along with cartridges recovered from the

dead body of the deceased which in the opinion of the Ballistic

Expert were fired from the country made pistol recovered from

the possession of the appellants, Mahfooz and Sonu which

further goes to establish the participation of the said appellants

34

in the present incident. It was vehemently argued by learned

counsel for the appellants that Gulzari, who was the Scribe of

the F.I.R. happens to be resident of district Yamuna Nagar of

State of Haryana and he was not examined before the trial

court. In the F.I.R., he has only given general role of assaulting

the deceased by the appellant with sword and saria and there

was no mention of the use of firm arm weapon on the deceased

which create doubt about the genuineness of the F.I.R. The said

contention of learned counsel for the appellants does not hold

good as from the evidence of P.W. 1 Arshad, who happens to be

the cousin of the deceased and had lodged the F.I.R. it is

apparent that he has categorically stated in his evidence before

the trial court that soon after the incident he reached the police

station to lodge the F.I.R. of the same where he met with one

boy by the name of Gulzari and requested him to write the

report. He dictated him the entire incident mentioning the name

of the appellants and the weapon of assault and the name of eye

witnesses but it appears that looking to the circumstances

incident was narrated in a hurried manner and so due to mistake

the Scribe of the F.I.R. forgot to mention the use of fire arm

weapon in the F.I.R. The F.I.R. which was dictated by him to

Gulzari was not read over to him by Gulzari and was signed by

him as he was mentally disturb after the incident. It is true that

there appears to be no mention of the use of fire arm in the

F.I.R. but the said circumstance cannot be of such nature which

may discard the prosecution case as the F.I.R. which was

lodged by P.W. 1 had given broad narration of the incident and

there cannot be any doubt to disbelieve the same. It was further

argued by learned counsel for the appellants that the statements

of eye witnesses of the occurrence were recorded under section

35

161 Cr.P.C. by the Investigating Officer at a belated stage

though they were present at the place of occurrence which goes

to show that the said witnesses have been planted to falsely

implicate the appellants on account of inimical relationship but

the said argument also does not has substance as if there was

any latches on the part of the Investigating Officer in recording

the statements promptly, the same cannot belie the prosecution

case particularly in view of the evidence of three eye witnesses

before the trial court, who have categorically stated about the

involvement of the appellants with their respective weapons.

From a close scrutiny of the evidence on record including the

evidence of eye witnesses of the occurrence and also of the

doctor, who conducted the post mortem of the deceased their

remains no doubt that the appellants' participation in the murder

of the deceased is fully proved by the ocular testimony and the

medical evidence.

50.The Apex Curt in the case of Mallikarjun vs. State of

Karnataka reported in (2019) 8 SCC 359 has reiterated with

appreciation of evidence of witnesses in a criminal case in

paras-13 and 14 of the said judgement which are quoted

hereasunder:-

"13. While appreciating the evidence of a witness, the

approach must be to assess whether the evidence of a witness read

as a whole appears to be truthful. Once the impression is formed, it

is necessary for the court to evaluate the evidence and the alleged

discrepancies and then, to find out whether it is against the general

tenor of the prosecution case. If the evidence of eye witness is

found to be credible and trustworthy, minor discrepancies which do

not affect the core of the prosecution case, cannot be made a

ground to doubt the trustworthiness of the witness.

14. Observing that minor discrepancies and inconsistent version do

not necessarily demolish the prosecution case if it is otherwise

found to be creditworthy, in Bakhshish Singh v. State of Punjab and

another (2013) 12 SCC 187, it was held as under:-

32. In Sunil Kumar Sambhudayal Gupta v. State of

Maharashtra (2010) 13 SCC 657 this Court observed as

36

follows: (SCC p. 671, para 30) “30. While appreciating the

evidence, the court has to take into consideration whether

the contradictions/omissions had been of such magnitude

that they may materially affect the trial. Minor

contradictions, inconsistencies, embellishments or

improvements on trivial matters without effecting the core

of the prosecution case should not be made a ground to

reject the evidence in its entirety. The trial court, after

going through the entire evidence, must form an opinion

about the credibility of the witnesses and the appellate

court in normal course would not be justified in reviewing

the same again without justifiable reasons. (Vide State v.

Saravanan (2008) 17 SCC 587.)”

33. ……. this Court in Raj Kumar Singh v. State of

Rajasthan (2013) 5 SCC 722 has observed as under: (SCC

p. 740, para

43) “43. … It is a settled legal proposition that, while

appreciating the evidence of a witness, minor

discrepancies on trivial matters, which do not affect the

core of the case of the prosecution, must not prompt the

court to reject the evidence thus provided, in its entirety.

The irrelevant details which do not in any way corrode the

credibility of a witness, cannot be labelled as omissions or

contradictions. Therefore, the courts must be cautious and

very particular in their exercise of appreciating evidence.

The approach to be adopted is, if the evidence of a witness

is read in its entirety, and the same appears to have in it, a

ring of truth, then it may become necessary for the court

to scrutinize the evidence more particularly, keeping in

mind the deficiencies, drawbacks and infirmities pointed

out in the said evidence as a whole, and evaluate them

separately, to determine whether the same are completely

against the nature of the evidence provided by the

witnesses, and whether the validity of such evidence is

shaken by virtue of such evaluation, rendering it unworthy

of belief.” "

51.The Apex Court has further observed in the said

judgment Mallikaraju vs. Stage of Karnataka (Supra) that it is

fairly well settled that the evidence of the Investigating Officer

can be relied upon to prove the recovery even when the Panch

witnesses turned hostile. In the case of Rameshbhai

Mohanbhai Koli vs. State of Gujrat reported in (2011) 11 SCC

111 it was held as under:-

37

"33.In Modan Singh vs. State of Rajasthan it was

observed (at SCC p. 438, para-9) that where the evidence of

the investigating officer who recoered the material objects is

convincing, the evidence as to recovery need not be rejected

on the ground that seizure witnesses did not support the

prosecution version. Similar view was expressed in Mohd.

Aslam. v. State of Maharashtra."

52.In view of the settled proposition of law as has been

referred above, the evidence of P.W. 1, 2 and 3, who are eye

witnesses of the occurrence cannot be disbelieved as their

evidence against the appellants have been found to be credible

and trust worthy by the trial court and minor discrepancies do

not affect the prosecution case and cannot be a ground to doubt

trustworthiness of the witnesses. It is also well settled law that

the evidence of family members of the deceased or his relative

cannot be discarded simply because they are related to the

deceased and are partisan witnesses though of course their

evidence has to be considered by the Court with great caution,

if they otherwise are found to be trust worthy and a credible

one. In the instant case these are the three eye witnesses of fact

out of which two are cousin of the deceased whereas one is real

sister of the deceased and their evidence against the appellants

does not cast any doubt, who have killed the deceased in their

presence and they had witnessed the incident. Thus, the

findings recorded by the trial court in convicting and sentencing

the appellants is fully justified as the prosecution has proved its

case beyond reasonable doubt against the appellants.

53.In view of the forgoing discussions, the conviction and

sentence of the appellants by the trial court is hereby upheld.

54.The appeals lack merit and are accordingly, dismissed.

55.The appellants are stated to be in jail. They shall remain

in jail and serve out the sentence as awarded by the trial court.

56.Let a certified copy of this order along with the record be

38

sent to the trial court concerned for its compliance.

(Ajit Kumar, J.) (Ramesh Sinha, J.)

Dated:-29.11.2019

Shiraz.