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Shafiq Ahmad v. State Of U.P. - CRIMINAL APPEAL No. 1810 of 1981 [2005] RD-AH 7622 (15 December 2005)


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Criminal Appeal No. 1810 of 1981

Shafiq Ahmad Vs. State of U.P.

Hon'ble Mukteshwar Prasad J.

Accused Shafiq Ahmad, son of Abdul Hamid, has come up in appeal to this Court against the judgment and order-dated 25.6.81 passed by Sri Jaswant Singh, the then Additional Sessions Judge, Bijnor in S.T. No. 299 of 1980 whereby he convicted the accused under Section 304 Part II of the Penal Code and sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1000/-. In default of payment of fine, he was ordered to suffer six months rigorous imprisonment.

The allegations of the prosecution, in nutshell, were as under:-

P.W.2 Mohd. Hanif, son of Abdul Hamid, is informant. He was eldest amongst his three brothers. His younger brother was Rafiq Ahmad, the deceased. The appellant is the youngest. The deceased lived with his father Abdul Hamid. The informant and the appellant lived separately. The deceased (Rafiq) used to bring cloths from Delhi and sell. The appellant purchased cloths from his brother on credit and sell. On account of this business and purchase of cloths on credit, relations between the two brothers (the appellant and the deceased) were strained and on several occasions, exchange of hot words took place and the villagers intervened.

On 24.5.80 at about 7-00 a.m. Rafiq demanded his money from the appellant as he needed the money. The appellant asked him to sit and settle the dispute and promised to pay. He took earrings (Bundey) from his wife and both brothers sat with a view to solve the dispute. After sometime, altercation and exchange of hot words took place and the appellant stabbed his brother on his left chest. Mohd. Hanif and his father (Abdul Hamid) raised alarm. The appellant ran away out of the house alongwith knife. He was chased by the informant but could not be apprehended. A number of villagers including Shyam Singh and Abdul Malik saw the appellant running away with knife. When Mohd. Hanif retuned home, he found his brother Rafiq dead.

Mohd. Hanif got a report of the incident prepared by his co-villager Mohd. Ibrahim and lodged an F.I.R. on the same day at P.S. Noorpur at 8-10 a.m.

P.W.6 H.C. Padam Singh prepared chick report and registered a case under Section 302 I.P.C. at crime no.77 at 10-00 a.m. and made entry in the G.D. at serial no. 17.

P.W.8 S.I. K.C. Sharma, the then S.O. P.S. Noorpur, took up investigation of the case. He interrogated the informant at the Police Station and reached the place of occurrence. He prepared inquest report and sealed the dead body and sent the same to mortuary for post-mortem examination. He interrogated Abdul Malik, Mohd. Ibrahim, Shyam Singh, Padam Singh and other witnesses. After inspection of scene of incident, prepared a site-plan also. The I.O. collected blood stained earth and bricks and prepared Fard. On the same day, the appellant was arrested from bus-station Mujadpur and on his personal search, one five rupees note and Bundey were recovered from his pocket. The I.O. recovered blood stained shirt of the appellant also in the presence of witnesses and prepared a Fard recovery. At the pointing out of the accused, the I.O. recovered blood stained knife on the same day in the presence of three witnesses including Daya Shanker and Mohd. Yusuf and prepared seizure memo. All the recovered clothes of the accused and blood stained earth, etc. were sent to Chemical Examiner for analysis. A site-plan of the place recovery of knife was also prepared. After completing investigation, the I.O. submitted charge sheet against the accused.

P.W.1 Dr. R.K. Nigam conducted post-mortem examination on the dead body of Rafiq Ahmad on the same day at 4-30 p.m. The deceased was young man aged about 22 years and had expired about half day prior to examination. Rigor mortis was present in both upper and lower limbs. The doctor found the following ante-mortem injuries:-

1. Stab wound 1 ½ cm. x 1 cm. x thoracic cavity deep on the upper of left side of chest. 8½ cm.  above and inwards from  the left nipple and 5½ cm. outer to inner end of left clavicle.   Wound is vertical and narrowed at its upper end. Edges are clean cut and smooth. On exposing the enter-costal space between the first and second ribs on left side front of chest in the minnes half portion is clean cut. Communicating with stab have clean-cut edges. The left lung has stab wound   communicating with the wound present on the left side of   chest in front of it. 2. Lbs of clotted blood is present in the left   thoracic cavity.


2.  Abrasion 1 ½ cm. x ½ cm. on the outer 1/3 of left  

  eye brow.

In the opinion of Dr. R.K. Nigam, the death had taken place on account of shock and haemorrhage resulting from ante-mortem injuries. In the opinion of doctor, injury no.1 was sufficient in the ordinary course of nature to cause death.

After committal of the case to the court of Session, Shafiq was charged under Section 302 I.P.C. on 15.10.80 to which he pleaded not guilty.

At the trial, the prosecution examined P.W.1 Dr. R.K. Nigam who conducted autopsy on the dead body of Rafiq, P.W.2 Mohd. Hanif, the informant and who is said to be an eyewitness, P.W.3 Abdul Malik and P.W.4 Shyam Singh who are said to be eyewitnesses, P.W.5 Mohd. Ibrahim who is a witness of Fard, P.W.6 H.C. Padam Singh who proved F.I.R. and entry in the G.D., P.W.7 Mohd. Ibrahim scribe of the written report (Ext.ka-1) and P.W.8 S.I. K.C. Sharma, I.O. of the case. The prosecution got proved the statements of Mohd. Hanif, Shyam Singh, Mohd. Ibrahim, son of Khuda Bux and Mohd. Ibrahim, son of Abdul Rahman, recorded under Section 161 Cr.P.C. by the I.O. of the case.

The appellant in his statement admitted his relationship with the deceased and the informant and the business also which was done by them. He however totally denied all accusations levelled against him and pleaded his false implication in the case on account of enmity and groupism in the village. According to him, he was arrested by the police from his house on 24.5.80 itself and was falsely implicated at the instance of Abdul Rashid, Mohd. Jamil and Abdul Wahid and nothing was recovered at his pointing out. He led no evidence in his defence.

After having considered the submissions made on behalf of the parties and the evidence on record led by the prosecution learned trial Judge found the accused guilty for the offence punishable under Section 304 Part II I.P.C. and convicted and sentenced him as noted above.

I have heard learned counsel for the appellant, learned A.G.A. and have gone through the entire oral and documentary evidence on record carefully.

Learned counsel for the appellant has assailed the impugned judgment mainly on the grounds that there is no evidence at all on record except the testimony of the I.O. The trial Judge committed error in placing reliance on the testimony of the I.O. and based his conviction. Admittedly, no prosecution witness, including the informant supported the prosecution version and turned hostile. The F.I.R. itself was disowned by the maker thereof. However, the court below held the appellant guilty and convicted him.

On the other hand, learned A.G.A. has supported the judgment and contended that the appeal is liable to be dismissed.

After careful consideration of the entire material on record and the arguments advanced on behalf of the appellant, I am clearly of the opinion that learned Judge was not justified in convicting the appellant in the absence of reliable and convincing evidence against him. As mentioned above, it is quite obvious from perusal of the written report (Ext.ka-2) that Mohd. Hanif and his father Abdul Hamid were the eyewitnesses of the incident in question in which the appellant is said to have stabbed his real brother (Rafiq) on his left chest. Abdul Hamid, father of the informant, who was also present at the time of incident was not produced in the witness box. So far informant is concerned, he categorically stated that he and his two brothers Rafiq and Shafiq were sleeping in their Sehan. When he woke up in the morning, he found his brother (Rafiq) dead. According to him, some one killed Rafiq in the night. He no doubt admitted his signature on the written report but added that this report was prepared on the dictation of the S.O. by Mohd. Ibrahim at the Police Station. He was never interrogated by the I.O. In cross-examination, he admitted that I.O. pressed him to nominate some one in the written report failing which case would not be registered. The I.O. lost his temper, slapped him and detained in the lock-up. P.W.7 Mohd. Ibrahim, scribe of the written report, admitted that written report was prepared and signed by him but he prepared the report at the Police Station on the dictation of the I.O. The I.O. obtained signature of Mohd. Hanif on the report forcibly. He too disclosed that he was never interrogated by the I.O. When he was further cross-examined on behalf of the appellant, he corroborated the testimony of informant regarding his torture at the hands of police.

P.W.3 Abdul Malik and P.W.4 Shyam Singh are said to be eyewitness and as per written report they saw the appellant running away from his house alongwith knife. Contrary to this, both the witnesses turned hostile in the court and testified that they heard hue and cry at the house of the appellant in the morning and found Rafiq lying dead on the cot. Both categorically stated that they did not see the appellant running away from his house alongwith knife in the hand. Both denied having given any statement to the I.O.

As discussed above, I find after close scrutiny of the evidence on record that even the informant who is real brother of the deceased and an eyewitness did not support the prosecution version and turned hostile. He disowned his own report and thus, gave a deathblow to the entire prosecution case. It was held by the Apex Court in M. Augusti Vs. State of Kerala 1980 SCC (Cri) 985 that if the F.I.R. is held to be fabricated, the entire fabric of the prosecution case would collapse. As pointed out above, the scribe of the written report too did not support the prosecution story and clearly stated that report was prepared by him at the Police Station on the dictation of the I.O. and not on the dictation of Mohd. Hanif. The other witnesses too did not say a single word regarding complicity of the appellant in the alleged crime and turned hostile. In my opinion, the trial Judge committed error in placing reliance on uncorroborated testimony of the I.O. and convicting the appellant. P.W.5 Mohd. Ibrahim, who is said to be a witness of Fard recovery of blood stained knife, turned hostile and gave out in clear words that the appellant gave no statement to the I.O. that he would get the knife recovered and no blood stained knife was recovered in his presence by the police as alleged by the prosecution. It is noteworthy that besides Mohd. Ibrahim, a blood stained knife was allegedly recovered in the presence of Daya Shanker and Mohd. Yusuf also but they were not examined by the prosecution for the reasons best known to it.

In the instant case, the trial Judge seems to have been swayed by the statement of the informant that he wanted acquittal of his brother Shafiq. In my considered opinion, the prosecution could not bring home the charge against the appellant beyond reasonable doubt and he deserves acquittal.

In the result, the appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside and he is acquitted. He is on bail. He need not surrender. His bail bonds stand discharged.

Date:  15th, December, 2005




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