Reserved Judgment

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

THE ACTING CHIEF JUSTICE SHRI SANJAYA KUMAR MISHRA

AND

JUSTICE SHRI RAMESH CHANDRA KHULBE

CRIMINAL APPEAL NO.204 OF 2012

Reserved on: 26.04.2022

Delivered on: 18.05.2022

Between:

Safdar and Another …… Appellants

Vs.

State of Uttarakhand …… Respondent

With

CRIMINAL APPEAL NO.27 OF 2013

Between:

Mehar Alam @ Mehar …… Appellant

Vs.

State of Uttarakhand …… Respondent

Counsel for the appellants : Mr. Sajjad Ahmad and Mr. Mohd.

Umar learned counsels.

Counsel for the State : Mr. J. S. Virk, learned Deputy

Advocate General for the State.

Counsel for the private respondent : Mr. Ramji Srivastava, learned

counsel.

Upon hearing the learned Counsel, the Court made the

following

JUDGMENT

: (per Shri Justice Ramesh Chandra Khulbe )

Since the appellants in these appeals were

tried together and convicted by the court below vide a

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common judgment, hence both these appeals are taken

up together and decided by this common judgment.

2. Appellants in thes e criminal appeals have

challenged the judgment and order dated 16.05.2012

passed by the Sessions Judge, Haridwar in S.T. No.294 of

2007, State vs. Shahnajar and others , whereby they

have been convicted under Section 302 read with Section

34 IPC and each of them was sentenced to undergo

imprisonment for life along with a fine of Rs.5,000/-; in

default of payment of fine, the defaulter was directed to

undergo three months’ additional imprisonment.

3. Briefly stated, facts of the case are that on

25.01.2007, Rao Budhan Khan (P.W.1) submitted a

written report at P.S. Kotwali Ranipur, Haridwar to the

effect that on 24.01.2007 at about 1:30 PM, while he

along with his sons Abrar, Karaar and servant Shamim

were peeling the sugarcane, two persons came there to

extract honey from a honeycomb. When the complainant

and his associates stopped those persons not to break

the honeycomb to avoid being hurt by the bites of honey

bees, those persons began to abuse the complainant and

his family members and threatened them of their lives.

After that incident, on 25.01.2007 at about 12:00 noon,

when the complainant’s sons Abrar, Karar and servant

Shamim were peeling the sugarcane and the complainant

was watering the fields, four persons, including those two

who had quarreled on 24.01.2007, at once assaulted

complainant’s elder son Abrar with a dagger and Gandasa

(a sharp edged weapon). On raising an alarm by him,

the assailants ran away from there extending a threat to

kill them also in future. With these averments, the FIR

was lodged. Accordingly, the Chick FIR being Crime

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No.22 of 2007 under Section 302 IPC was registered

against four persons.

4. The matter was invest igated and the I.O., after

completing the investigation, submitted the charge sheet

against the appellants.

5. After complying with the provisions of Section

207 Cr.P.C, the concerned court committed the case to

the Court of Sessions for trial. Accordingly, the concerned

Court took the cognizance. Thereafter, the concerned

Court framed the charges against the appellants on

30.08.2007 for the offence punishable under Section

302/34 34 IPC, to which th ey pleaded not guilty and

claimed to be tried.

6. To prove its case, the prosecution examined

PW1 Rao Budhan Khan (informant), PW2 Rao Shahid

Khan, PW3 Khalid, PW4 Karaar Ahmed (eyewitness), PW5

Shamim, PW6 Ali Nawaz, PW7 Dr. J.S. Chufal, PW8

Nafasat Khan, PW9 Inspector Ashok Kumar Arora (I.O.),

PW10 Dr. R.S. Chauhan (who conducted autopsy) and

PW11 S.I. Ram Babu Arya (I.O. of the case).

7. After completion of the prosecution evidence,

statements of appellants were recorded under Section

313 of the Cr.P.C., in which they denied the evidence

produced by the prosecution.

8. In defence, no evidence was produced.

9. After hearing learne d counsel for both the

parties, the trial Court convicted and sentenced the

appellants as mentioned in paragraph no.2 of this

judgment.

10. Being aggrieved by the judgment and order

dated 16.05.2012, these criminal appeals have been

preferred by the appellants.

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11. The prosecution has proved Rao Budhan Khan

(P.W.1) as an eyewitness of the case. By supporting the

contents of the FIR lodged by him, he has deposed that

on 24.01.2007, two accused persons reached at the spot

to break the honeycomb. On being stopped by the

complainant’s party, they threatened that they would do

so even at the cost of someone’s life, and they also

hurled derogatory abuses. On this, his son scolded those

persons due to which they left giving a threat that they

are the sons of ‘Rohit Pahalwan’. On 25.01.2007, when

his sons Abraar, Karaar and servant Shamim were doing

work in the field, and he (informant) was also working in

the adjacent field, at about 12:30 PM, those two accused

persons, who came on 24.01.2007, as well as one more

person, reached there. The witness identifying all those

three persons in the court, stated that on 25.01.2007 at

about 12:30 PM all those three persons came on the spot

being armed with weapons; Mehar Alam was armed with

a ‘Patal’, Shahnazar was having a ‘Gandasa’ and Safdar

was having a ‘dagger’. Those accused persons with their

respective weapons attacked Abrar upon his head. On

raising an alarm by the servant Shamim, when he

reached on the spot, he saw that the accused persons

had cut the head and neck of his son and he had fallen

down. The accused persons, while leaving, had also

extended a threat to kill in case anyone comes forward.

After the incident, he dictated the report of this incident

to Rao Sahab and lodged the same at the police station

which was registered as Ex .Ka-1. This witness was

subjected to a lengthy cross-examination at the hands of

defence counsel but nothing substantial could be derived

to raise any doubt on the testimony of this witness.

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12. Rao Shahid Khan (PW2) is the scribe of the

FIR. In his statement, he has deposed that he wrote the

report at the instance of Rao Budhan Khan. After writing

the same, he read over the report to the informant who

had put his thumb impressi on on the same. He has

proved his signatures as also the thumb impression of

the informant on the report. He is also a witness of the

inquest as he was appointed a ‘Panch’.

13. Khalid (PW3) is a witn ess of recovery of dagger

at the instance of appellant Safdar. He has proved his

signature on the recovery memo Ex.Ka-10.

14. Karaar Ahmed (PW4) is said to be another son

of the informant as also the eyewitness of the

occurrence. He has deposed that on 24.01.2007, he

along with his brother Abrar, father and servant Shamim

were peeling the sugarcane. On that day, at about 1:00

PM, two persons came and started to break the

honeycomb. When they stopped them not to do so as the

honeybees may bite them, those persons, stating them

to be the sons of ‘Wahid Pahalwan’, began to hurl

abuses. His brother Abrar scolded and ran them away,

then one out of them stated that they would certainly

break the hive and extract the honey. On the next day

i.e. on 25.01.2007, he along with his brother Abrar

(deceased) and servant Shamim was working in

sugarcane field, and his father was doing work in the

adjacent field, then the same two persons, who came last

day, along with one other person came there and at

once, they began to assault his brother by their

respective weapons viz. ‘Patal, Gandasa and a dagger’.

When his brother screamed, they saw that those persons

were heavily assaulting his brother. Those persons had

cut the neck and head of his brother by their weapons

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‘Patal, Gandasa and a dagger’. On raising the alarm, his

father came running on the spot and when they

proceeded to save his brot her, the accused persons,

brandishing the weapons, ch allenged that if someone

moves forward, he will also suffer the same

consequences. In the Court, he identified Safdar and

Mehar Alam. This witness was also subjected to a lengthy

cross-examination at the hands of defence counsel but

nothing substantial could be derived to raise any doubt

on the testimony of this witness.

15. Shamim (PW5) is also a person who has given

the eyewitness account in the case. This witness has

categorically corroborated the evidence of PW1 Rao

Budhan Khan as well as PW 4 Karaar Ahmed. Narrating

the same tale of plucking the honeycomb by the accused

persons on 24.01.2007 and being scolded by the Abraar

(deceased), he has clearly stated that on 25.01.2007 at

about 12:00 noon, the accused persons (appellants)

being armed with deadly weapons i.e. ‘Patal, Gandasa

and a dagger’, came on the spot; they surrounded Abrar

and assaulted him causing severe injuries on his head

and neck. In the court he identified Safdar and

Shahnazar. This witness was also subjected to a lengthy

cross-examination at the hands of defence counsel but

nothing substantial could be derived to raise any doubt

on the testimony of this witness.

16. Ali Nawaz (PW6) is also a witness of recovery

of murder weapons. He has proved recovery of ‘Gandasa’

at the instance of appellant-Shahnazar, recovery of

‘Patal’ by appellant Mehar Alam. He has proved his

signature on the joint recovery memo (Ex.Ka-8).

17. Dr. J.S. Chufal (PW7) is the medical officer who

medically examined the appe llants, namely, Shahnazar

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and Mehar Alam on 30.01.2007 and proved their medical

reports as Ex.Ka-3 and Ex.Ka-4 respectively.

18. Nafasat Khan (PW8) is a witness of inquest

report.

19. PW11 S.I. Ram Babu Arya is the person who

conducted the investigation of the case, prepared the

spot map and arrested the accused. Subsequently, the

investigation was entrusted to the Inspector Ashok

Kumar Arora (PW9) who ultima tely submitted the charge

sheet against the accused which is Ex.Ka-25.

20. Dr. R.S. Chauhan (P W10) is the person who

conducted autopsy on the dead body of deceased Abrar

on 25.01.2007. The following ante-mortem injuries were

found on the body:-

 “Transverse incised wound on back of head 8cm x

3cm, brain deep grey matter exposed, it is 6 cm

above C1.

 Incised wound 1cm X 1.8 cm in size, it is over right

shoulder.

 Incised wound 3cm X 0.7cm in size, 3cm below

injury no.2.

 Incised wound 3 x 1cm on back of right shoulder.

 Incised wound 4 x 1 cm over medial side of left

forearm.

Deep incised wound on back of head (occipital

region).

Blood and blood stains trt over scalp head, face and

chest.

In the opinion of Doctor, the death was caused by

massive haemorrhage and shock due to ante-

mortem injuries.”

21. Thereafter, the st atements of accused

appellants were recorded under Section 313 Cr.P.C. in

8

which they denied all the allegations levelled against

them. However, no evidence, either oral or documentary,

was led into defence.

22. We have heard learned counsel for the parties

at great length and carefu lly examined the entire

documentary evidence available in the records of the

Court.

23. Learned counsel appearing on behalf of the

appellants has argued that the prosecution has utterly

failed to prove its case against the appellants beyond any

reasonable doubt and the appe llants are liable to be

acquitted.

24. On the other hand, learned Deputy Advocate

General appearing for the St ate as well as learned

counsel appearing for the informant has emphatically

argued that it is a broad daylight murder brutally

committed by the accused persons, even there is direct

evidence available on record against the accused

persons, and thus, the Trial Court has rightly convicted

and sentenced the accused for imprisonment for life.

25. As per the FIR, firstly on 24.01.2007, the

appellants – Mehar Alam and Shah Nazar came at the

agricultural field of the informant and they were going to

break honeycomb for extracting honey. The deceased

Abrar stopped them from doing so. On this, the accused

said that one of them is son of ‘Habib Pehalwan’ and who

will extract the honey even after killing Abrar. Again on

25.01.2007, at about 12:00 ho urs, both the appellants

along with the appellant-Safdar reached at the same field

when deceased Abrar along with his younger brother-

Karaar and servant– Shamim were peeling sugarcane

where they started to grievously assault Abrar with a

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dagger and a Gandasa; due to this incident, Abrar

succumbed to his injuries.

26. As per the evidence of PW1 Rao Buddan Khan

(father of deceased Abrar), PW4 Karaar Ahmad (brother

of deceased) and PW5 Shamim (servant of PW1), on

24.01.2007, Abraar (deceased), PW4 Karaar and PW5

Shahim were peeling sugarcane in the field of PW1 Rao

Buddan Khan. At about 1:00–1:30 p.m. appellants-

Mehar Alam and Shah Nazar reached at the field and

started going to pluck the hive stuck on a tree standing

in the field of Wahid adjacent to our field. When the

complaint and his associates stopped them, they started

to abuse and said that you do not know us, and we will

destroy this hive even if we have to commit murder of

Abrar.

27. On 25.01.2007, when Abrar (deceased), PW4

Karar and PW5 Shamim were present in the field and

PW1 Rao Buddan Khan was also working in the field

adjacent to the spot, at about 12:00 to 12:30 p.m. the

appellants reached at the spot with weapons. Mehar Alam

was having Patal, Shah Nazar was having Gandasa while

Safdar was having a knife and they started to badly

assault the deceased (Abrar). After PW5 Shamim, PW1

Rao Buddan Khan reached at the spot. The appellants

also extended life threats to PW1 Rao Buddan Khan and

ran away towards the forest. Due to the assault by the

appellants, Abraar died at the spot.

28. PW1 Rao Buddan Khan submitted the

information (Ex.Ka-1) with Kotwali Ranipur on the very

same day. On the basis of the said information, the police

lodged the chick FIR (Ex.Ka-22). The Inquest Report

(Ex.Ka-13) was prepared by PW11 Ram Babu Arya, which

is also proved by PW2 Sh ahid Khan and PW8 Nafasat

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Khan. Post-mortem report (Ex.Ka-6) was prepared by

PW10 Dr. R.S. Chauhan.

29. On 29.01.2007, a ppellant-Mehar Alam and

Shah Nazar were arrested. Their disclosure statements

were recorded, which is Ex.Ka-11. At the pointing out of

appellant-Mehar Alam, Patal was recovered and at the

pointing out of appellant-Shah Nazar, Gandasa was

recovered. Accordingly, the recovery memo (Ex.Ka-8)

was prepared which was pr oved by PW11 Ram Babu

Arya.

30. On 02.02.2007, the disclosure statement of

appellant-Safdar was recorded, which is Ex.Ka-12. At the

pointing out of him, a knife (Ex.Ka-10) was recovered,

which is proved by PW11.

31. At the time of incident, PW1 Rao Buddan Khan

(informant) was also working in the field nearby the spot.

On hearing noise of PW5 Shamim, he reached at the

spot. He also saw the incident of committing murder of

his son Abrar (deceased) by the appellants.

32. On the fateful day, PW4 Karar Ahmed, who is

younger brother of the deceased, was also peeling the

sugarcane. He supported the entire story, as alleged in

the FIR.

33. As per the FIR, PW5 Shamim, who is the

servant of PW1 Rao Buddan Khan, was also present at

the spot. He also narrated the same story as stated by

PW1 Rao Buddan Khan and PW4 Karar Ahmed.

34. All the above three witnesses are the eye-

witness of the scene. PW2 Rao Shahid Khan is the scribe

of the report (Ex.Ka-1), who is also one of the witnesses

of the inquest report and in whose presence the inquest

report was prepared.

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35. PW3 Khalid is also th e witness of the recovery

of the knife in whose presence the knife was recovered at

the pointing out of the appellant-Safdar on 02.02.2007.

36. From the evidence of PW3 Khalid, it is clear

that a knife was got recovered by the appellant-Safdar,

which was used in the crime.

37. PW6 Ali Nawaz is also a witness of the

recovery, in whose presence, appellant-Shah Nazar got

recovered the Gandasa and appellant-Mehar Alam got

recovered a Patal.

38. It is argued by learned counsel for the

appellant that no Test Identification Parade (TIP) was

conducted by the investig ating agency during the

investigation. The FIR was lodged only against a son of

Wahid Pehalwan and the appe llants were not named in

the FIR. Since, no TIP was conducted, accordingly, the

case of the prosecution has become doubtful.

39. It is true that in this matter, no test

identification was conducted by the investigating agency

as per Section 9 of the Evidence Act, but as per the FIR,

PW1 Rao Buddan Khan, PW4 Karar Ahmed and PW5

Shamim were present at the spot. They knew the

appellants by face. On 29.01.2007, in the presence of

police, appellants – Shah Nazar and Mehar Alam were

identified by PW1 Rao Buddan Khan (informant and

father of the deceased) and PW4 Karar Ahmed (brother

of the deceased). On 02.02.2007, when the appellant-

Safdar was arrested, at that time, both the witnesses

were also present and the appellant-Safdar was properly

identified by them. At the time of recording the

statement, PW1 Rao Budda n Khan (informant) also

identified the appellant before the Court. At the time of

recording the statement, PW4 Karar Ahmed also

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identified appellants-Safdar and Mehar Alam. As far as

appellant-Shah Nazar is concerned, he was not present at

the time of recording the statement in the Court because

his exemption application was also moved by the defence

counsel. PW5 Sham im also identified the appellants-

Safdar and Shah Nazar at the time of recording the

statement before the Court.

40. The Hon’ble Apex Court in Dana Yadav Vs.

State of Bihar, (2002) 7 SCC 295 has held that:-

“11. It is well settled that no test identification

parade is called for and it would be waste of time to

put him up for identification if the victim mentions

name of the accused in the first information report or

he is known to the prosecution witnesses from before.

41. In a recent judgment, the Hon’ble Apex Court

in Rajesh Vs. State of Haryana, (2021) 1 SCC 118

summarized the principles regarding test identification. For the sake of convenience, relevant principles are

quoted hereinbelow:-

“43.1 ………………….

43.2 ………………….

43.3 ………………….

43.4 ………………….

43.5 The identification of the accused in court

constitutes substantive evidence;

43.6 ………………….

43.7 ………………….

43.8 ………………….

43.9 Since a TIP does not constitute substantive

evidence, the failure to hold it does not ipso facto

make the evidence of identification ina

dmissible

;

43.10 ……………. 43.11 Identification of the accused in a TIP or in

court is not essential in every case where guilt is

13

established on the basis of circumstances which

lend assurance to the nature and the quality of

the evidence; and

43.12 ……………………..”

42. Similarly, the Hon’bl e Apex Court of-late in

Jayan Vs. State of Kerala, (2021) SCC OnLine SC 961

has

held that:-

“15. …………………. However, the absence of T.I Parade

may not be ipso facto sufficient to discard the

testimony of a witness who has identified the accused

in the Court. In a given case, there may be otherwise

sufficient corroboration to the testimony of the witness.

In some cases, the Court may be impressed with

testimony of the prosecution witnesses which is of a

sterling quality. In such cases, the testimony of such a

witness can be believed.

43. In the present matte r, PW1 Rao Buddan Khan,

PW4 Karar Ahmed and PW5 Shamim were well acquainted

with the facial identity of the appellants although they

were unaware of their names. However, at the time of

arrest as also before the trial Court, the above witnesses

properly identified the appellants. In these circumstances,

it is immaterial that no test identification was conducted

during investigation by the investigating agency.

44. It is next argued by the learned counsel

appearing for the appellants that the weapons, which

were recovered at the pointing out of the appellants, were

not sent for FSL testing and, accordingly, the appellants

are liable to be acquitted.

45. It is true that the investigating agency did not

sent the weapons recovered at the pointing out of the

appellants to FSL, but, from the record, it is proved that

when the appellants were arrested, they disclosed the

crime before the Police and also disclosed about the

weapons used in the crime. Accordingly, their disclosure

statements were recorded. On the pointing out of the

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appellant-Safdar, a knife was recovered on 02.02.2007 in

presence of PW3 Khalid, who is an independent witness.

At the pointing out of Shah Nazar, the weapon of assault

‘Gandasa’ was recovered and at the pointing out of Mehar

Alam, ‘Patal’ was recovered. At the time of recovery of

‘Gandasa’ and ‘Patal’, Ali Nawaz (PW6) and Abdul Rehman

were also present, who proved the recovery memo

(Ex.Ka-8).

46. The Hon’ble Apex Court in Amar Singh Vs.

Balwinder Singh and Othe rs, (2003) 2 SCC 518 has

held that:-

“15…………………. It would have been certainly

better if the investigating agency had sent the fire

arms and the empties to the Forensic Science

Laboratory for comparison. However, the report of the

Ballistic Expert would in any case be in the nature of an

expert opinion and the same is not conclusive. The

failure of the investigating officer in sending the fire

arms and the empties for comparison cannot

completely throw out the prosecution case when the

same is fully established from the testimony of eye-

witnesses whose presence on the spot cannot be

doubted as they all received gunshot injuries in the

incident.”

47. Thus from the abov e discussion, the following

points are emerging:-

A. On 24.01.2007 when the son of the informant,

namely, Abrar (deceased), Karar and servant

Shamim were peeling suga rcane in their field at

about 1:30 p.m. two boys came there and were

going to extract honey. On stopping them, both of

them started abusing and on making protest, one of

them hurled derogatory words and threatened that

one of them is the son of Habib Pehalwan and that

they will extract the honey even after killing them.

B. On 25.01.2007, at about 12:00 hours when

elder son of PW1 Rao Buddan Khan (informant),

PW4 Karar Ahmed and PW5 Shamim were peeling

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sugarcane on the same field while PW1 Rao Buddan

Khan (informant) was working nearby, in the

meantime, appellants came and started assaulting

grievously to the elder son Abrar with the weapons

due to which Abrar succumbed to the injuries at the

spot.

C. PW1 Rao Buddan Khan, who is father of the

deceased, promptly reported the matter with Police

Station on 25.1.2007 itself at 12:45 hours while the

incident is said to have taken place on that day at

about 12 noon.

D. On the very same day, inquest report and post-

mortem report were prepared.

E. On 29.01.2007, ap pellant-Mehar Alam and

Shah Nazar were arrested and they were duly

identified by PW1 Rao Buddan Khan and PW4 Karar

Ahmed.

F. On 02.02.2007, the appellant- Safdar was

arrested being identified by PW1 Rao Buddan Khan

and PW4 Karar Ahmed and PW5 Shamim.

G. At the pointing out of appellant-Mehar Alam

and Shah Nazar, Gandasa and Patal were recovered

in presence of PW6 Ali Nawaj and Abdul Rehman,

while at the pointing out of Safdar and in presence

of PW3 Khalid, a knife (recovery memo Ex.Ka-10)

was recovered, which is proved by PW11.

H. At the time of incident, PW1 Rao Buddan Khan,

PW4 Karar Ahmed and PW5 Shamim were present at

the spot and they duly corroborated the prosecution

story.

I. The appellants were also identified by PW1 Rao

Buddan Khan, PW4 Karar Ahmed and PW5 Shamim

before the trial Court at the time of recording of

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their statements.

48. For the aforesaid reasons, as discussed above,

we do not find any sufficient ground to interfere with the

impugned judgment and order passed by the trial Court

convicting the appellants under Section 302 IPC. The trial

Court has given detailed reasons after discussing the

entire evidence on record before coming to the

conclusion that the appellants were found guilty of the

offence. We are in complete agreement with the findings

recorded by the trial Court that the charge of offence u/s

302/34 IPC is fully proved against the appellants.

49. Accordingly, we do not find any infirmity or

perversity in the impugned findings recorded by the Trial

Court.

50. Both the appeals lack merit and the same are,

accordingly, dismissed affirming the judgment and order

under challenge. The appellants are on bail. Their bail

bonds are cancelled. Let they be taken into custody

forthwith to serve out the sentence imposed against

them by the Trial Court. The sureties shall stand

discharged only after the appellants are taken into

custody.

51. Registry is directed to send a copy of this

judgment and order along wi th the LCR to the Court

concerned for forthwith compliance.

_______________________

SANJAYA KUMAR MISHRA, A.C.J.

______________

RAMESH CHANDRA KHULBE, J.

Rdang