A.F.R.

Judgment Reserved On: 07.09.2021

Judgment Delivered On: 27.09.2021

Court No. - 48

Case :- CRIMINAL APPEAL No. - 6693 of 2010

Appellant :- Sayeed Alias Sahid And Another

Respondent :- State of U.P.

Counsel for Appellant :- Smt. Nayan Shri,I.M. Khan,Sudhanshu Srivastava

Counsel for Respondent :- Govt. Advocate

Hon'ble Anjani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

Per: Hon'ble Syed Aftab Husain Rizvi,J.

1.Heard Sri I.M. Khan, learned counsel for the appellants, learned

A.G.A. for the State and perused the record.

2.This criminal appeal has been filed against the common judgment and

order dated 26.08.2010 passed by the Additional Sessions Judge, court no.6

Saharanpur in S.T.s No. 742 of 2005 (State vs. Sayeed alias Shahid) in case

crime no.448/05 under Section 302 and 307 IPC, S.T. No.744 of 2005 (State

vs. Sayeed alias Shahid) in case crime no.453/05 under Sections 25/4 of

Arms Act, and S.T. No.746 of 2005 (State vs. Zahid) Case Crime No.470/05,

under Section 25/4 of Arms Act, P.S. Kotwali Dehat, District- Saharanpur,

convicting the accused-appellants (Sayeed @ Shahid and Zahid) under

Section 302/34 and sentencing each of them to undergo life imprisonment,

and a fine of Rs.5000/- and in default of payment of fine, three months

simple imprisonment, under Section 307/34 to undergo rigorous

imprisonment for seven years and fine of Rs. 3,000/- and in default of

payment of fine, three months simple imprisonment and further convicting

the accused-appellant (Sayeed @ Shahid) under Section 25/4 of Arms Act

and sentencing him to undergo rigorous imprisonment for one year and a

fine of Rs.1000/- and in default of payment of fine, one month simple

imprisonment and accused-appellant (Zahid) under Section 25/4 of Arms Act

and sentencing him to undergo rigorous imprisonment for one year and

imposing a fine of Rs.1000/- and in default of payment of fine, one month

simple imprisonment. All the sentences to run concurrently.

3.In brief the prosecution case is that complainant- Furkan gave a

written information dated 09.09.2005 at Police Station- Kotwali Dehat,

District- Saharanpur that today on 09.09.2005 at about 7:00 p.m. he along

with his father Rashid Ahmad and brothers Nasir, Kabir and Abdul Qadir

after offering Namaz were coming out from the Mosque situated at pooja

road, village- Rasoolpur when accused-persons Islam, Shahid, Zahil (correct

name-Zahid) and Israr who are the resident of the same village armed with

knives/ chhura and saying that today no one should be let alive suddenly

with the intention to kill, attacked them. His brothers Nasir and Kabir got

seriously injured and Abdul Qadir also received serious injuries. Fear and

panic prevailed. The devotees coming out from the Mosque ran helter-

skelter bare footed to save their lives and the neighbourers out of fear shut

the doors and windows of their houses. All the four accused persons

seriously injured the three brothers of the complainant. Complainant and his

brothers ran towards their house to save their lives, the accused-persons

chased them and entered into their house because of which the female

members of the house ran outside towards the forest to save their lives.

Injured Nasir, Kabir and Qadir were taken to the District Hospital by the

complainant and his father with the aid of other villagers where the doctor

declared Nasir and Kabir dead while Abdul Qadir is under treatment. The

incident has been witnessed by the complainant and his father and other

villagers in the electric light.

4.On the aforesaid written information, case crime no.448 of 2005 under

Sections 307 and 302 IPC was registered against Islam, Sayeed, Zahil and

Israr all sons of Phullu and the investigation commenced, the inquest report

and related papers of the dead bodies of Nasir and Kabir were prepared, the

dead bodies were sealed and sent for post-mortem. The Investigating Officer

visited the place of occurrence and collected the blood stained and plain soil

from the spot and sealed it in separate containers, prepared the site plan,

recorded the statement of complainant and other witnesses.

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During the course of the Investigation on 14.09.2005, the police party

comprising Investigating Officer S.O. Vijay Kumar Yadav, HCP Madanlal

Singh, Constable- Sudhir Kumar, Constable- Sunil Kumar and Constable

(driver)- Surendra Singh at about 4:30 a.m. arrested the accused Sayeed and

Islam and on interrogation they furnished the information that the knife and

Chhuri used by them in the incident was concealed and on the aforesaid

information, one knife was recovered at instance of accused Sayeed alias

Shahid under the trees towards west of Kothi situated at Maqbool Nursery

and another knife was recovered at the instance of Islam from other place in

presence of public witnesses Furkan Ahmed and Mohd. Ishaq at about 6:30

a.m. The recovered knives were sealed on the spot and recovery memo was

prepared and on the basis of recoverey memo, a separate FIR case crime

no.453 of 2005 under Section 4/25 of Arms Act against Sayeed alias Shahid

and case crime no.454 of 2005 under Section 4/25 of Arms Act against Islam

were registered on 14.09.2005 at 8:30 a.m. at police station-Kotwali Dehat,

Saharanpur.

Further on 20.09.2005, the police party comprising Investigating

Officer S.O. Vijay Kumar Yadav, HCP- Madanlal Singh, Constable- Rajveer

Singh, Constable- Dalchandra, Constable (driver)- Surendra Singh arrested

accused Zahid at 7:00 am and on his interrogation he also disclosed that he

has concealed the knife used in the incident and on his instance the same

was recovered at about 7:50 am from the western boundary of Moonji field

of Maqbool. The recovery memo was prepared on the spot and the knife was

sealed and a case crime no.470 of 2005 under Section 4/25 of Arms Act was

registered against accused-Zahid.

The investigation of the aforesaid two cases was conducted by S.I.-

Ashok Kumar and S.I.- Adesh Kumar respectively who visited the place of

occurrence, prepared the site plan, recorded the statement of witnesses and

submitted the charge-sheets.

The investigation of the main case under Section 302 and 307 was

completed by Inspector Vijay Kumar Yadav- SHO, Kotwali Dehat,

Saharanpur and he submitted the charge-sheet against all accused-persons

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namely Israr, Islam, Sayeed alias Shahid and Zalim alias Zahid under

Section 307 and 302 IPC.

5.Accused Israr and Islam being juvenile, their cases were separated and

transmitted to Juvenile Justice Board for further proceedings. Accused

Sayeed alias Shahid and Zalim alias Zahid were tried for offence under

Sections 307 and 302 IPC and also under Section 4/25 of Arms Act in the

three Sessions Trial which have been consolidated and decided by the

impugned common judgment.

6.The trial court framed the charges under Section 302/34 and 307/34

IPC against accused Sayeed alias Shahid and Zalim alias Zahid and the

separate charge under Section 4/25 of against each accused Sayeed alias

Shahid and Zahid. Accused denied the charges and claimed for trial. The

prosecution has examined 10 witnesses who have proved 33 prosecution

papers marked as Ex.Ka-1 to Ex.Ka-33. Four material exhibits (Ex.1 to 4)

were also produced before the trial court. The statement of accused were

recorded under Section 313 Cr.P.C. in which they have denied the

prosecution case. The accused have also stated that injury report and Bed

Head Ticket (BHT) of injured Qadir have been fabricated on legal advice,

the Investigation has been conducted showing ante-time proceedings. They

have also stated that they have been arrested from their houses and falsely

implicated and they are innocent. No evidence in defence was produced.

7.The injured Abdul Qadir was medically examined on 09.09.2005 at

10:00 p.m. by Dr. Mahesh Grover, Emergency Medical Officerr of District

Hospital, Saharanpur. Following injury was found on his body:

Incised wound 3 cm X 1cm X muscle deep on left

side head, behind left year, fresh bleeding was

present.

In the opinion of the doctor, the injury was caused by some sharp

object and duration was fresh, injured was admitted. Dr. Mahesh Grover

(P.W.-3) has proved the injury report as Ex.Ka-2 and has further stated that

the injury of the injured may have been received at 7:00 pm and may be

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caused by knife/ choori. Dr. Mahesh Grover (P.W.-3) has also proved the

BHT of injured Abdul Qadir marked as Ex. Ka-3 according to which the

injured was admitted in SBD District Hospital, Saharanpur on 09.09.2005 at

10:00 p.m. and was discharged from hospital on 10.09.2005. The details of

treatment given to the injured (patient) are also recorded in it.

8.The postmortem of deceased-Nasir was conducted on 10.09.2005 at

4:30 a.m. by Dr. R.K. Gupta and according to post-mortem report Ex.Ka-4

the age of the deceased was about 16 years, average built body, Rigor Mortis

was present all over the body and there was no decomposition, eyes were

closed. Following ante-mortem injuries were found on the body.

i.Incised wound 1cm X 0.5cm X muscle deep on right side

nose, 2cm below right eye-brow.

ii.Abrasion 5cm X 3cm on right side neck, 4 cm below

right ear.

iii.Abrasion 2cm X 2cm on left side chest, 7cm above left

nipple at 1 O’clock position.

iv.Incised wound 4cm X 2cm X abdominal cavity deep on

front of abdomin, in mid-line, 13cm above imbilicus.

In the internal examination both lungs were pale, right chamber of

heart contained blood, peritoneum was lacerated and one litre blood was in

the cavity, stomach contains 100gm semi digested food, in small intestine

and large intestine gases and fecal matters were present, gallbladder was full,

spleen and kidneys were pale.

In the opinion of doctor, the death was due to shock and haemorrhage,

as a result of injuries sustained and duration of death was about half day.

9.The postmortem of other deceased- Kabir was conducted on

10.09.2005 at 3:45 a.m. by Dr. R.K. Gupta and according to postmortem

report (Ex.Ka-5) the age of the deceased was about 22 years, average built

body, Rigor Mortis was present all over the body, no decomposition present,

eyes were closed.

Following ante-mortem injuries were found on the body:

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i.Incised wound 4cm X 0.25cm, muscle deep on left

side of forehead, 2cm above left eye brow.

ii.Incised wound 3cm X 0.25cm X muscle deep on left

side forehead, 3cm above left eye brow and this injury was

communicating to injury no.1.

iii.Incised wound 7cm X 0.5cm X bone deep on right

side head, 7cm above right ear.

iv.Incised wound 5cm X 3cm X abdominal cavity deep,

6cm above imblicus at 11.45 O’clock position. Loops and

omentum of intestine coming out of wound.

v.Incised wound 5cm X 1cm X muscle deep on left

side back of chest, 3cm below inferior angle of left scapula.

vi.Incised wound 5cm X 2cm X muscle deep on left

side back of chest, 10cm below injury no.5.

vii. Incised wound 8cm X 3cm X muscle deep on back

right side chest, 7cm below inferior angle of right scapula.

In internal examination both lungs were pale, right chamber of heart

contains blood, peritoneum was lacerated and one litre blood was present,

stomach was empty, in small intestine and large intestine gases and fecal

matters were present, gallbladder was full and lever was lacerated and pale,

spleen and kidneys were pale.

In the opinion of doctor, death was due to shock and haemorrhage, as

a result of injuries sustained and duration was about half day.

Both postmortems were done under artificial light by the order of

ADM (F) and CMS, SBD Hospital, Saharanpur.

10.The prosecution case is based on direct evidence and two eye

witnesses Furkan (P.W.-1) and Abdul Qadir (P.W.-2) have been produced by

the prosecution. Furkan (P.W.1) is also the complainant while P.W.-2 is

injured, they are also brothers of the deceased Nasir and Kabir and hence

related witnesses. The examination in chief of Furkan (P.W.-1) has been

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recorded twice, first on 07.01.2008 and thereafter on 16.04.2008 when the

case of co-accused Islam was consolidated but later on it was separated and

sent to Juvenile Justice Board. In examination in chief recorded on

16.04.2008 the witness has said that the incident is about two years and six

months before. It was 7:00 pm when he was coming out of the Mosque after

offering Namaz; Kabir, Qadir, Nasir and his father Rashid were also with

him, when we came out the accused-persons namely Sayeed, Zahid, Islam

and Israr armed with knives/Chhuri were standing there and said that none

of them should go alive and all the accused persons attacked Kabir and Nasir

with knives and Chhuri. When Qadir came to rescue them, they also stabbed

him with knife on his upper part of the neck. Accused also chased him but he

ran away. In this attack Kabir, Nasir and Qadir received injuries, and he, his

father and other persons of the village carried the injured persons to the

hospital where doctor declared Nasir and Kabir dead while Abdul Qadir was

admitted in the hospital and medically examined. At the place of occurrence,

there was electric light. The witness has further stated that he got the report

of the said incident written by Killan Saheb (Advocate) in the hospital and

lodged the report at police station. The witness has proved the Tehrir marked

as Ex.Ka-1.Witness has further stated that panic prevailed in village due to

this incident.

11.Abdul Qadir (P.W.-2) in his examination in chief has also supported

the prosecution case and said that the incident took place about three years

ago. It was 7:00 pm when he along with his brothers Kabir, Nasir, Furkan

and father Rashid were coming out from the Mosque after offering Namaz.

This Mosque is near his house. The accused-persons Zahid, Sayeed, Islam

and Israr met outside the Mosque, they were armed with knives/ Chhuri and

with the intention to kill, they attacked them with the aforesaid weapons

because of which he, Kabir and Nasir received injuries. There was electric

light at the place of occurrence. The incident was also seen by his brother

Furkan and father. The other persons ran away barefooted and there was a

state of panic in the village. After inflicting injuries the accused-persons ran

away. After the incident we were brought to District Hospital, Saharanpur by

our father and Samir, Naseem, Furkan where he was medically examined

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and admitted in the hospital. Nasir and Kabir were declared dead. The report

of this incident was lodged by his brother. He was admitted in the hospital

for eight days, where he got treatment.

12.Learned counsel for the appellants contended that both the public

witnesses Furkan (P.W.-1) and Abdul Qadir (P.W.-2) are real brothers and

also the brothers of the deceased and, therefore, related and interested

witness. There is no independent witness of the incident. Even in the FIR no

independent public witness has been named while the place of occurrence is

a public place and it has come in the evidence that people after offering

prayers were coming out from the Mosque. The Imam of the Masque was

also present and seen the alleged incident. There is one tea-shop in the

southern side of the Mosque where people remain till 8:30 - 9:00 pm and

there is also a factory where people work till 8:00 - 8:30 pm. Learned

counsel further contended that the presence of Furkan (P.W.-1), is highly

doubtful as he has admitted in his cross-examination that he lives in another

house which is in other village Ramzanpura situated at a distance of about 1-

k.m. from the place of occurrence. It is also in the evidence that there is

another Mosque in the village Ramzanpura which is near the house of

witness Furkan (P.W.-1) so it is unnatural and improbable that he should

have come to the Mosque of village Rasoolpur for offering Namaz. It is

further contended that he has not received any injury and further in the

medico- legal report of Abdul Qadir, the name of Sameer is mentioned as the

person who brought the injured to the hospital, the name of Furkan (P.W.-1)

is not there which also creates serious doubts about the presence of this

witness at the time of incident. The learned counsel further contended that

P.W.-2 Abdul Qadir has denied that evenings prayer (Maghrib Namaz) in all

Mosques is offered simultaneously and has said that it is offered with time

difference of 15 minutes which is totally incorrect and this false statement

has been intentionally made just to show the presence of Furkan (P.W.-1) at

the time of incident.

Learned A.G.A., on the other hand contended that the house of Furkan

(P.W.-1) is only 100 meters away from the place of occurrence, just south to

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the road. The Mosque situated at village Rasoolpur is nearer to his house

while it has come in the evidence that the other Mosque situated at village

Ramzanpura was under construction at the time of the incident. Both the

witnesses Furkan and Kabir have fully supported the prosecution version

and there is consistency in their statements. Except some minor

discrepancies, there is no other major discrepancy or contradiction which

creates doubts on their presence or makes them untrustworthy. Further Abdul

Qadir is also an injured witness and his presence at the place of occurrence

in no way can be doubted.

It is a settled principle of law that the oral testimony of a witness

cannot be discarded or ignored merely on the ground that he is an interested

witness or a related witness. What is required is cautious approach in

scrutiny and appreciation of his oral statement. Both the witnesses have

supported the prosecution case and corroborated the allegation of FIR

regarding genesis of occurrence, manner of assault, date, time and place of

occurrence and nature of injuries. Their oral testimony got fully corroborated

by medical evidence and there is no contradiction between the two.

According to medical evidence both the deceased have suffered incised

wounds, and injured Kabir has also suffered one incised wound on the back

of his neck. The date and time of the incident is also corroborated from the

medical evidence as the doctor has opined that said injuries can be caused on

09.09.2005 at 7:00 pm with knife/ chhuri and the injuries of the deceased

Nasir and Kabir were sufficient in the ordinary course of nature to cause

death. The two witnesses Furkan (P.W.-1) and Abdul Qadir (P.W.-2) have

been put at lengthy cross-examination by the defence to test their

trustworthiness but there is no major discrepancy or contradiction in their

statements which creates any kind of doubt or suspicion about their presence

and seeing of occurrence. From the evidence on record it is established that

incident has occurred in a very daring and gruesome manner. The

complainant and his brother when they came out from the Mosque were

suddenly attacked by the accused-persons holdings knives/ Chhuries chased

in the public way and were inflicted knives blow on vital parts of their body.

So it was natural and probable that the persons present there, out of fear have

9

escaped to save their lives and in this situation, it is not expected that anyone

would have dared to come forward. Further the injured/ deceased and

accused are resident of the same village and are also neighbourers.

Considering all these facts and situation, production of independent public

witnesses cannot be insisted and only on this ground the cogent and

consistent oral testimony of eye witness and injured witness cannot be

discarded. It has come in evidence that Qadir, Nasir and Kabir all these

injured were carried to hospital by complainant, his father, Sameer and other

villagers. It is also clear from evidence on record that Nasir and Kabir were

seriously injured and ultimately succumbed to their injuries. It is probable

that complainant may be with his seriously injured brothers and Qadir whose

injury was not so serious was accompanying Sameer at the time of his

medical examination so his name was recorded as the person who brought

the injured. The presence of complainant Furkan at the place of occurrence

cannot be doubted on this ground.

13.Learned counsel for the appellants further contended that prosecution

is not clear about the place of occurrence and according to prosecution

initially the incident has occurred at one place then prosecution developed

its case and said that it occurred at two places and lastly it was said that

incident has also occurred inside the house. Learned counsel submitted that

the witnesses in their oral testimony has not supported the allegations of FIR

in this respect. No witness has supported this allegations of the FIR that

accused entered into their house and female members ran outside towards

the forest to save their lives, so there is utter confusion and major

discrepancy in prosecution case regarding place of occurrence. Learned

counsel further contended that Investigating Officer has also collected blood

from only one place while it has come in the evidence that one of the

deceased fell near the entrance of the Mosque and the other fell outside the

door of his house, so the place of occurrence is not established.

According to site plan Ex.Ka-18, the house of the injured/ deceased is

in north-west of the Mosque with Southern entrance, 44 paces away from the

eastern entrance of the Mosque and there is a Rasta in between. From the

10

evidence on record, it is clear that the incident started at the southern

entrance of the Mosque. Accused-attacked the complainant and his brothers

with knives/ chhuries when they came out from the Mosque chased them

and inflicted knives blow. One of the injured fell down near the southern

entrance of the Mosque while the other fell down near the main door of his

house. The third one received injury on his neck while trying to rescue his

brothers and complainant saved himself by running away. The two places

where deceased fell down have been shown by the letters- ‘A’ & ‘B’ in the

site plan and the Investigating Officer collected the blood stained and plain

soil from both these two places which is mentioned in the site plan itself. So

the place of occurrence is clear from the evidence on record and there is no

doubt about it. It also established that one deceased fell just outside main

entrance of his house, so it is natural and probable that family members may

have come outside. The allegation that accused entered into the house and

female members ran towards the forest may be exaggeration but this does

not create any kind of doubt about the place of occurrence or the manner in

which incident has occurred. It is clearly established from the evidence on

record that the incident has started at the eastern entrance of the mosque and

culminated at the door of the house of injured/ deceased in an area of about

44 paces.

Learned counsel for the appellants also disputed the place of

occurrence submitting that HCP- Sunil Kumar (P.W.-6) who is Head

Moharir and writer of Chick and GD of crime no.448/05 under Section 307

and 302 IPC, in his cross-examination has said that:-

" A.FRJ.udg.dm.en.tu.srvR.nA .Ou:Ou:A.07.9RvR.2vn1Dlg.uA.ig.uCovR.N-.9g

सिजसा उल्लेख GD ी रपट नं० 51 पर किया गया है।"

On the aforesaid, the learned counsel tried to build up the argument

that there was no occasion of receiving any information from another police

station about this incident and it clearly indicates that the incident has

occurred at some other place.

P.W.-6 has stated that some information was also received from police

station- Janakpuri regarding this incident which was mentioned in the GD

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No.51 but it is not clear from his statement what that information was. The

copy of the said GD is also not on record to make it clear. It also appears that

at the time of cross-examination, the original GD was brought by the witness

and after its perusal, he has made this statement. If this information was of

such a nature which was creating any doubt about place of occurrence, it

was on the part of the defence to bring it on record. It appears that the

defence counsel has very intelligently cross-examined the witness and

knowingly and willingly left it unexplained just to create a doubt. On the

aforesaid statement which is not clear about the kind of information, no

inference can be drawn that the place of occurrence is somewhere else. It

creates no suspicion about the place of occurrence. It also appears from the

material on record that after the incident, the situation became tense in the

village, so there is probability that some instructions may be given by the

higher authorities regarding law and order and the information referred to in

the statement of the witness may be related to it.

14.Learned counsel for the appellants further contended that the injury of

P.W.-2 Abdul Qadir is simple in nature and fabricated, just to make him an

injured witness. This injury may be self inflicted, so no reliance can be

placed on the oral testimony of P.W.-2 Abdul Qadir only for the reason that

he is an injured witness. Learned counsel further submitted that P.W.-2

Abdul Qadir in his cross examination has also stated that Israr was arrested

on spot by the police. He was taken away by the police with knife while

according to the statement of Investigating Officer- Vijay Kumar Yadav

(P.W.-5) Israr was arrested on 11.09.2005. Learned counsel submitted that it

is a major contradiction affecting the reliability of the witness.

According to medical evidence Abdul Qadir (P.W.-2) has received

one incised wound 3 cm x 1 cm x muscle deep on left side of head behind

left ear. He was medically examined just after the incident at 10:00 pm at

District Hospital. In medical examination fresh blood was present. In the

opinion of the doctor the injury was caused by sharp object and duration was

fresh. The injury although simple but it is on the vital part of the body, so it

cannot be self inflicted or fabricated. It is true that there is discrepancy in the

statement of the witness about the arrest of accused- Israr on the spot. This

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part of the statement may be untrue and exaggeration but his remaining oral

testimony is consistent and there is no other major discrepancy. It is settled

principle of law that a witness cannot be totally disbelieved merely because

there is some false statement in his testimony. The entire oral testimony is to

be appreciated as a whole and only then any conclusion about his

trustworthiness can be drawn. So merely on the basis of one incorrect

statement, the entire oral testimony of P.W.-2 cannot be brushed aside. P.W.-

2 Abdul Qadir is an injured witness so due credence needs to be accorded to

his testimony. In the case of Abdul Sayeed vs. State of M.P., (2010) 10 SCC

259 Hon’ble Apex Court has held as under:

“28.The question of the weight to be attached to the evidence of

a witness that was himself injured in the course of the occurrence

has been extensively discussed by this Court. Where a witness to

the occurrence has himself been injured in the incident, the

testimony of such a witness is generally considered to be very

reliable, as he is a witness that comes with a built-in guarantee of

his presence at the scene of the crime and is unlikely to spare his

actual assailant(s) in order to falsely implicate someone.

“Convincing evidence is required to discredit an injured witness.”

And a similar view in the case of Jarnail Singh vs. State of Punjab, (2009) 9

SCC 719, has been taken in the Hon’ble Apex Court with following

observations:

“28. Darshan Singh (PW 4) was an injured witness. He had been

examined by the doctor. His testimony could not be brushed aside

lightly. He had given full details of the incident as he was present

at the time when the assailants reached the tubewell. In

Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3)

SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the

deposition of the injured witness should be relied upon unless there

are strong grounds for rejection of his evidence on the basis of

major contradictions and discrepancies, for the reason that his

presence on the scene stands established in case it is proved that

he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004

SCC (Cri) 2021] a similar view has been reiterated observing that

the testimony of a stamped witness has its own relevance and

efficacy. The fact that the witness sustained injuries at the time and

place of occurrence, lends support to his testimony that he was

present during the occurrence. In case the injured witness is

subjected to lengthy cross-examination and nothing can be elicited

to discard his testimony, it should be relied upon (vide Krishan v.

State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri)

214] ). Thus, we are of the considered opinion that evidence of

Darshan Singh (PW 4) has rightly been relied upon by the courts

below.”

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In the case of Baleshwar Mahto vs. State of Bihar, (2017) 2 SCC

(crl.26), the Hon’ble Apex Court relying on the above case laws held as

under:

30. The law on the point can be summarised to the effect that the

testimony of the injured witness is accorded a special status in law.

This is as a consequence of the fact that the injury to the witness is

an inbuilt guarantee of his presence at the scene of the crime and

because the witness will not want to let his actual assailant go

unpunished merely to falsely implicate a third party for the

commission of the offence. Thus, the deposition of the injured

witness should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major contradictions and

discrepancies therein.”

15.Learned counsel for the appellants also contended that the incident is

of night and the Investigating Officer (P.W.-5) Vijay Kumar Yadav in his

cross examination has admitted that he has not shown any bulb outside the

Mosque in the site plan. So the source of light is not established. It is true

that in the site plan the Investigating Officer has not shown the place where

electric bulb was on but all the witnesses in their oral evidence has said that

there was electric light in which they have seen the occurrence. Further the

place of occurrence is in abadi, the accused-persons and the witnesses are

also neighbours so the identity of the accused cannot be doubted and the

omission on part of the Investigating Officer to show the place of electric

bulb in the site plan will not create any suspicion about the identity of the

accused. The identity of the accused is fully established.

16.Learned counsel for the appellants further contended that the FIR is

written by an Advocate in presence and with connivance of local Pradhan

who is against the accused-persons. The FIR is prepared after due

deliberation and consultation, there is chance of false implication and hence

no reliance can be placed on it.

FIR is prompt. Informant Furkan (P.W.-1) while proving it has

confirmed that it was written at his instance by the scribe. The presence of

Pradhan at hospital is natural and probable being head of the village. There

is no material on record to suggest that Pradhan is inimical to the accused.

There is also no evidence of any previous enmity between the parties, so

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merely because the scribe is an Advocate, it cannot be presumed that report

has been manipulated to frame innocent persons. False implication of

accused-persons sparing the real assailants of such an incident of double

murder is highly improbable in the circumstances. The accused have also

failed to give any reason of their false implication.

17.Learned counsel for the appellants further contended that the FIR and

other papers are ante-time. The Investigating Officer- Vijay Kumar Yadav

(P.W.-5) has admitted that in Ex.Ka-10 and Ex.Ka-11 unknown is written in

column of time of the incident and time of death, in the inquest report only

crime number and sections are written and other particulars are not

mentioned. Dr. R.K. Gupta (P.W.-4) who has conducted the postmortem

examination of the deceased has admitted that at the time of post-mortem

FIR was not before him. Constable- Harendra Singh (P.W.-10) who has

brought the dead bodies for post-mortem examination has said that he

handed over the dead bodies to the doctor on next day at 11:00 am. The

inquest report has been prepared by S.I. Adarsh Tyagi but his signatures are

not there on the papers. All these clearly establishes that at the time of

inquest proceedings and even at the time of post-mortem, FIR was not

registered. It has been registered later, ante timing it and other papers

prepared are also ante timed.

Learned AGA submitted that crime number, sections and other

particulars relating to time etc, duly proper filled in every column of the

inquest report. So FIR was very much in existence at the time of inquest

proceedings and it is not ante-timed. Learned AGA further submitted that

merely signature of CO does not bear any date or FIR has been sent to the

concerned magistrate with some delay, it cannot be said that FIR is ante-

timed. He placed reliance on Rajesh Singh vs. State of U.P., (2011) 11 SCC

(page-144). The Hon’ble Apex Court in the aforesaid case in para no.12, 13

& 14 has made following observations:

“12.The first such finding by the trial Court was that the FIR

was ante- timed on the ground that as per the evidence of

Chandra Shekhar Yadav (PW-4), the investigating officer, the

dead body of deceased Deepak was dispatched from the spot

after being sealed at 9 p.m. for the police lines. However, in the

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record of the police lines, it was shown to have received at 10

a.m. on 12.4.1993. The FIR was also criticized by the trial Court

and the defence counsel here on the ground that there was no

evidence offered by the prosecution to suggest that the special

report of the crime was sent to the higher authorities.

13.The High Court has found that this criticism was not

justified. The High Court has given the reasoning that the FIR

was lodged by the witness Virendra Kumar (PW-1) on 11.4.93

itself at 6.40 p.m. Thus, if the incident happened at about 5

O'Clock in the evening, the recording of the FIR at 6.40 p.m. in a

police station which was 8 Kms. away from the spot of

occurrence could not be said to be late reporting. The High

Court has also relied upon the evidence of Chandra Shekhar

Yadav (PW-4) that the FIR had been lodged in the police station

when he was not present there and he was informed about it only

on wireless and, therefore, he happened to reach the spot directly

with ASI and started the investigation of the case and was busy

there in drawing of Panchnama etc. right up to 11 p.m. and

merely because the copy of FIR was received in the office of the

circular officer on 13.4.1993, it should not lead to the conclusion

that the FIR was ante-timed. The High Court has also found that

if the dead body reached the police lines late at mid night and if

it was shown in the record that it was received at 10 a.m. on

12.4.93, there was nothing significantly doubtful.

14.We have also gone through the record as well as the

evidence of the investigating officer Chandra Shekhar Yadav

(PW-4) and though the timing is slightly irregular, that alone

would not be sufficient to reach a conclusion that the FIR was

ante-timed. After all nothing was going to be gained by the

prosecution by ante-timing the FIR. Had the FIR been ante-

timed, the Panchnama could not have been commenced at 7.30

p.m. We do not find any significant cross examination of the

Panchas and the police officers, particularly, on the aspect of

timing thereof. We do not find this circumstance to be of such a

nature so as to throw the whole prosecution story which was

proved by two eye witnesses, one of them being the father of

the boy.”

In inquest report, case crime number and sections are mentioned and

all other columns of date time is properly filled. If some particulars are

lacking or there are some omissions on related papers, only on this basis it

cannot be inferred that at the time of the inquest, FIR was not in existence. It

shows only lapse on part of the Investigating Officer and Officer who

prepared the inquest report. S.I. Vijay Kumar Yadav (P.W.-5) has said that

inquest report was prepared by S.I. Adarsh Tyagi under his direction, he has

also proved his signatures on the inquest report. The statement of constable

Harendra Singh (P.W.-10) that he handed over the dead bodies to the doctor

on the next day at 11:00 am is against the documentary as well as the oral

evidence on record. The postmortem Ex.Ka4 and Ex.Ka-5 and oral statement

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of doctor R.K. Gupta confirm that postmortem was conducted in early

morning of 10.09.2005 and it is also specifically mentioned that postmortem

was conducted in artificial light under the orders of ADM (F) and CMS,

SBD Hospital Saharanpur. Doctor has no interest in preparing false

document or giving false statement in this regard. So there is no question of

handing over the bodies to the doctor for post-mortem at 11:00 am. The

statement is wholly incorrect and it appears that the witness has failed to

recollect it. These discrepancies will not in any way adversely affect the

prosecution case and no adverse inference can be drawn on its basis about

ante-timing of papers.

18.Learned counsel further contended that no timing is mentioned in the

case diary, the signatures of CO on case diary is undated. It is also not clear

that which parcha of case diary on which date was sent to CO. The statement

of scribe Rao Killan is not recorded by the Investigating Officer. The GD is

on plain paper and not on printed proforma and it contains no seal of police

department and signatures of CO on it, is also undated and all these facts

have been admitted by the Investigating Officer and G.D./ chik writer in his

cross-examination. Learned counsel contended that Investigating Officer has

manipulated the papers in his own manner which was suitable for him.

Regarding GD, it has come in evidence that printed proforma was not

available, hence it was prepared on plain paper. It is a settled principle of

law that defects in the investigation itself cannot be a ground for acquittal so

these discrepancies or omissions will not in any way adversely affect the

prosecution case. In the case of C. Muniappan and Others vs State of Tamil

Nadu, (2010) 9 SCC 567 it has been held:

“Defect in the investigation by itself cannot be a ground for

acquittal. Investigation is not the solitary area for judicial

scrutiny in a criminal trial. Where there has been negligence on

the part of the investigating agency or omissions, etc, which

resulted in defective investigation, there is a legal obligation on

the part of the court to examine the prosecution evidence dehors

such lapses carefully to find out whether the said evidence is

reliable or not and to what extent it is reliable and as to whether

such lapses affected the objects of finding out the truth. The

conclusion of the trial in the case cannot be allowed to depend

solely on the probity of investigation.”

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In the case of Union of India vs. Prakash P. Hinduja and another, AIR 2003

SC 2612, it has been held:

“An error, illegality or defect in investigation cannot

have any impact unless miscarriage of justice is

brought about or serious prejudice is caused to the

accused.”

In the case of Sambhu alias Bijoy Das and another vs. State of Assam AIR

2010 SC 3300, it has been held that:

“If the prosecution case is established by the evidence

adduced, any failure or omission on the part of the

Investigating Officer cannot render the case of the

prosecution doubtful.”

19.Prosecution has also relied on another peace of evidence, the recovery

of weapons (knife & chhuri) used in the incident. The Investigating Officer-

SHO, Vijay Kumar Yadav (P.W.-5) has made these recoveries and in his

examination in chief on this point he has said that on 14.09.2005 at 04:30 am

on the information received from informer, he arrested the accused Sayeed

alias Shahid and on his interrogation he disclosed that he has concealed the

knife used in the incident near Kotha of Maqbool Nursery under the trees

and at 06:30 a.m. at the instance of the accused, blood stained knife was

recovered from the aforesaid place. The knife was sealed on the spot and the

recovery memo marked as Ex.Ka-20 was prepared. The copy of the recovery

memo was given to the accused and his thumb impression was obtained. He

has further stated that he also prepared the site plan of the place of recovery

marked at Ex.Ka-21 and has also proved the knife as material Ex.-1. The

witness has further stated that on 20.09.2005 at 7:00 am, he arrested the

other accused Zahid and on his interrogation he disclosed that the knife used

in the alleged incident has been concealed by him near Moonji Field of

Maqbool and at the instance of the accused Zahid, the said knife was

recovered at 7:50 am which was sealed on the spot and recovery memo of

Ex.Ka-22 was prepared. He has further stated that he prepared the site plan

of the place of recovery marked as Ex.Ka-23 and has also proved the knife

as material Ex.2.

Learned counsel for the appellants contended that there is no

independent witness of recovery and it has been made from open public

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place where any person can reach without any hindrance or obstruction. The

only evidence about recovery is the sole testimony of Investigating Officer,

Vijay Kumar Yadav. Hence it cannot be relied.

Vijay Kumar Yadav (P.W.-5) by his oral evidence has proved the fact

of recovery and there is nothing in his cross-examination which affect the

reliability of the witness. Merely because he is a police person and

Investigating Offcer, his oral evidence cannot be discarded. The recovered

knives has been sent for chemical examination and its report also confirms

that the knife recovered at the instance of accused- Zahid was stained with

human blood. So the forensic report also corroborates the oral testimony of

(P.W.-5) Vijay Kumar Yadav. The evidence of recovery is admissible under

Section 27 of the Evidence Act.

20.Learned counsel for the appellants lastly contended that there is no

motive of the incident. Neither in the FIR nor in the oral statements of the

witnesses, any motive has been assigned. The Investigating Officer has tried

to assign the motive through the mouth of accused themselves in their

confessional statements.

In this respect, it is sufficient to say that it is a case of direct evidence

where eye witness account of the incident has been produced by the

prosecution, the motive is immaterial. It is a settled principle of law that in

case of direct evidence, motive becomes irrelevant but if the prosecution

assigns any motive then it has to prove it. In this case prosecution has not

assigned any motive, hence there is no relevance of motive.

21.The remaining witnesses are formal in nature, Constable Brahmpal

Singh (P.W.-7) is chik and GD writer of crime number 453/05 under Section

4/25 and S.I. Ashok Kumar (P.W.-8) and S.I. Adesh Kumar (P.W.-9) are the

Investigating Officers of cases under Section 4/25 of Arms Act. The

aforesaid witnesses have proved the papers and the proceedings conducted

by them.

22.The oral testimony of accused informant/ eye witness Furkan (P.W.-1)

and injured witness Abdul Qadir (P.W.-2) is reliable, both these witnesses

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have supported the prosecution case and have corroborated the FIR version

and their oral testimony is fully corroborated by medical evidence and there

is no contradiction between the two. The eye witness account of the incident

produced by the prosecution is reliable and trustworthy and also gets support

from the medical evidence. The weapons used in the incident have been

recovered at the instance of the accused and recovery is also proved which

further corroborates the prosecution case. So from evidence on record the

prosecution case stands proved. There is no perversity or illegality in the

findings recorded by the trial court. The findings of conviction recorded by

trial court are liable to be upheld. The sentence awarded is also appropriate

and needs no interference. This criminal appeal is liable to be dismissed.

22.According, the criminal appeal is hereby dismissed.

23.Copy of this judgment along with lower court record be transmitted to

the learned trial court immediately.

Order Date :- 27.9.2021

C. MANI

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