Firoz … v. State of U.P on 12 Sep 2025 — Criminal Appeal No. 188 of 2015

Judgment

1. Heard Mr. Vijay Nath Pandey, learned counsel for the appellant, Mr. Rajdeep Singh, learned A.G.A. for the State and perused the record.

2. The present criminal appeal has been filed against the judgment of conviction and order of sentence dated 10.6.2015 passed by Additional District Judge, Court No.5, Barabanki in Session Trial No.969 of 2012, 'State Vs. Firoz', arising out of Case Crime No.205 of 2012, under Section 302 I.P.C. read with Section 34 I.P.C., Police Station Dewa, District Barabanki convicting and sentencing the appellant under Section 302 I.P.C. read with Section 34 I.P.C. for life imprisonment with a fine of Rs.50,000/- 2 Criminal Appeal No.188 of 2015 and in default of payment of fine, 2 years additional imprisonment.

3. Prosecution story, in short, is that F.I.R. No.205 of 2012 under Section 302/34 I.P.C. was lodged on 29.7.2012 on the written complaint of Munna S/o Babu, r/o Mohalla Hijjaji -2, Police Station Dewa, District Barabanki with the allegation that on

29.7.2012 at about 10:00 P.M., wife of informant, namley, Baby and his daughter - Asfa Khatoon were present in the house, while the informant was at a nearby betel shop. Suddenly, his younger

brother, Firoz, who was residing at Allahabad, came inside the house of the informant alongwith two other associates and had pushed down the wife of informant on the ground and also started indiscriminate attack with knife on her abdomen, chest, legs and hand. The accused- Firoz then slit her throat, while the other two associates of appellant- Firoz caught hold the legs of Baby and also pressed her mouth. It is also alleged in the F.I.R. that the informant - Munna and his daughter - Asfa Khatoon were continuously crying for the help, but no one came for their rescue. Thereafter, the informant and his daughter anyhow brought the injured to the hospital, but she could not survive. The F.I.R. was scribed by Sri Majid Ali, S/o Late Abid Ali r/o Ward No.6, Julahan Tola, Nagar Panchayat, Intaunja, Lucknow. Thereafter, inquest of the body of deceased was started on

29.7.2012 at 12:30 a.m. and was concluded by 2:00 a.m. The post mortem of the body was also conducted on 30.7.2012 at 3:30 p.m., in which, 37 ante-mortem incised wounds (31 on front & 6 backside of body) were found. The Investigating Officer, after investigation, prepared charge sheet on 18.11.2012 against the appellant and David Pal, however, the investigation was kept pending against Irfan. Cognizance, on the said charge sheet was taken by the competent court and the case was committed to the 3 Criminal Appeal No.188 of 2015 Court of Sessions, which was registered as S.T. No.969 of 2012. Later on, charge sheet was also submitted against co-accused Irfan and after committal, his case was registered as S.T. No.41 of

2013. Learned trial court framed the charges, however, the appellant denied the same and requested for trial.

4. The prosecution placed 5 witnesses, namely, P.W.1 - Munna (informant), P.W.2 - Asfa, P.W.3 - Dr. Saroj Kumar, P.W.4 - Constable Devendra Singh Chauhan, P.W.5 - M.M. Khan. The prosecution further relied on 18 documentary evidences, viz., written complaint - Exhibit Ka -1, inquest report - Exhibit Ka 2, post mortem report - Exhibit Ka 3, chik F.I.R. - Exhibit Ka 4, Kaimi G.D. - Exhibit Ka 5, Letter R.I. - Exhibit Ka 6, Letter C.M.O. - Exhibit Ka 7, Photo dead body - Exhibit Ka 8, Challan of dead body - Exhibit Ka 9, Sample seal , site plan - Exhibit Ka 10, Blood stained mud and simple mud- Exhibit Ka 11, recovery memo of motor cycle and car - Exhibit Ka 12, recovery memo of recovered knife- Exhibit Ka 13, site plan of recovered knife- Exhibit Ka 14, charge sheet- Exhibit Ka 15 & 16, Docket- Exhibit Ka 17, and report of Forensic Science Laboratory - Exhibit Ka 18.

5. After completion of the prosecution case, statement of the appellant under Section 313 Cr.P.C. was recorded by the trial court. On the basis of the oral as well as documentary evidence, the judgment of conviction and order of sentence dated

10.6.2015 was passed by Additional District Judge, Court No.5, Barabanki in Session Trial No.969 of 2012, (State Vs. Firoz), arising out of Case Crime No.205 of 2012, under Section 302 I.P.C. read with Section 34 I.P.C. Hence, the instant appeal has been filed.

6. Learned counsel for the appellant has submitted that as per the prosecution case, F.I.R. of the case in question was lodged on the written complaint of P.W.1. - Munna (informant) and the said 4 Criminal Appeal No.188 of 2015 complaint was scribed by one Mazid Ali. He further submitted that the statements of the alleged eye witnesses are contrary to each other as well as to the medical evidence regarding anti mortem injury, etc. He also submitted that P.W.1 - Munna deposed that on

29.7.2012, at about 10:00 p.m., his wife and daughter were present in the house and the informant was at a betel shop situated outside the house. Suddenly his younger brother, Firoz alongwith two associates by entering into his house, pulled down his wife and started causing injuries with knife. He also stated that the mouth of his wife was closed by two associates of the appellant. The informant and his daughter tried to raise alarm for help, but no one came for their help. Thereafter, he brought his wife to the hospital, but she died while reaching to the hospital. In his deposition, he also stated that there was a dispute in between the informant and the appellant in relation to the house and shop, as a result of which, the appellant killed his wife, for which, he made complaint to the police station, which was scribed by his relative Mazid Ali. The relevant part of the statement of P.W.1 is reproduced as under :- "मेरा छोटा भाई फि(cid:12)रोज जो इलाहाबाद में रहता है। अचानक अपने दो साथि(cid:30)यों के सा(cid:30) मेरे घर आ गया। फि(cid:12)रोज ने मेरी पत्नी को जमीन पर फिगरा फिदया और चाकू से उसके पैर पीठ और सीने पर कई घाव फिकये त(cid:30)ा उसकी गद,न रेत दी। उसके दोनो सा(cid:30)ी मेरी पत्नी का मु ँह दबाये रहे। मैं त(cid:30)ा मेरी पु्ቔी आसिस(cid:12)ा खातून ने बचाव के लिलये का(cid:12)ी शोर फिकया लेफिकन कोई बचाने नही आया। मुह्ቤे त(cid:30)ा आस पास में का(cid:12)ी दहशत (cid:12)ै ल गयी। लोग अपनी-अपनी दुकाने बन्द करके भाग गये। उसके बाद मैं अपनी पत्नी को लेकर अस्पताल गया। अस्पताल पहु ंचते-पहु ंचते मेरी पत्नी की मृत्यु हो गयी। फि(cid:12)रोज से मेरा घर व दूकान का फिववाद चल रहा (cid:30)ा इसीलिलए उसने मेरी पत्नी की हत्या कर दी। इस घटना की रिरपोट, मैने (cid:30)ाना 5 Criminal Appeal No.188 of 2015 कोतवाली देवां में दी (cid:30)ी तहरीर मैंने अपने रिरश्तेदार मासिजद अली को बोलकर लिलखायी (cid:30)ी त(cid:30)ा हस्ता्ቌर करके (cid:30)ाने पर फिदया (cid:30)ा। मेरे घर से अस्पताल की दूरी दो सौ मीटर है यह सरकारी अस्पताल है। घटना होने के बाद मैं व मोह्ቤे वाले घटनास्(cid:30)ल पर पहु ंच गये (cid:30)े। मैं अपनी बीवी से लिलपटकर रोने लगा (cid:30)ा जहां (cid:12)श, पर मेरी पत्नी की लाश मैने पहली बार देखी मेरे उस घर में ई ंटे फिबछे हुए (cid:30)े मेरे घर जाने के लिलए जो गली है वह तीन (cid:12)ु ट चौड़ी व दस (cid:12)ु ट लम्बी है। मैं अपनी पत्नी की लाश टैम्पो से लेकर अस्पताल गया (cid:30)ा। मेरी पत्नी की लाश को मैने व पुलिलस के सिसपाफिहयों ने टैम्पो में रखा (cid:30)ा उसके बाद हम लोग अस्पताल गये (cid:30)े। पुलिलस के सिसपाही घटना के पन््ቖह फिमनट के बाद घटनास्(cid:30)ल आ गये (cid:30)े और उन्ही सिसपाफिहयों की मदद से लाश को टैम्पो पर रखा (cid:30)ा मेरे कपड़ों व हा(cid:30) में मृतका का खून लग गया (cid:30)ा दरोगा जी ने मेरे खून लगे कपड़े कब्जे में नहीं लिलए (cid:30)े लेफिकन मेरे खून लगे कपड़े देखे (cid:30)े। मैने मासिजद अली को अस्पताल से (cid:12)ोन करके आधे घन्टे बाद इटौंजा से बुलवाया (cid:30)ा मासिजद अली के सा(cid:30) मेरे साले शमशाद अली और मेरे अपठनीय ससुर के लड़के व मासिजद अली के भाई क्ቤू त(cid:30)ा कु छ औरतें भी सा(cid:30) में (cid:30)ी जो मारुती वैन फिकराये पर करके सा(cid:30) में आये (cid:30)े। मासिजद अली से मैंने कोई बातचीत नही की (cid:30)ी मासिजद अली ने दरोगा जी से बात की (cid:30)ी और जैसा मासिजद खां ने कहा वैसी रिरपोट, लिलख ली गयी।" However, in cross examination, P.W.1 - Munna stated that he made a call to Mazid Ali from the hospital and after 1/2 hour, Mazid Ali reached at the police station alongwith brother-in-law of the informant, namely, Shamshad Ali and thereafter, he had not talked to Mazid Ali. P.W.1 also stated that Mazid Ali talked to police officials and on the narration of Mazid Ali, F.I.R. was lodged. He also stated that within 15 minutes of the incident, police reached on the spot and while shifting his injured wife in a tempo, his hands and clothes soaked the blood and blood stained clothes were seen by the Investigating Officer. It was further stated by P.W.1 that after the said incident, he hugged his wife, who was lying on the floor and brought her to the hospital by a tempo with the help of police constable. He also admitted that after incident, he firstly reached to the police station, and 6 Criminal Appeal No.188 of 2015 thereafter, came back to the house and shifted his wife to the hospital.

7. P.W.2 - Asfa Khatoon, daughter of the deceased, in her deposition stated that on the date of incident, at about 10:00 p.m., appellant - Firoz with two associates entered into house. One associate of the appellant caught her and appellant assaulted her mother with the knife, thereafter, appellant caught her, and his associate assaulted her mother with the knife. She further stated that she tried to raise alarm but her mouth was closed and when the accused persons were on the way to exit, her father (P.W.1) reached on the spot and on seeing him, all the accused persons ran away. She next stated that her uncle - Akeel, who was present in the court in the uniform of lawyer had advised her regarding statement, which is to be given before the court. The relevant part of the statement of P.W.2 is being reproduced as under :- "घटना को इस जुलाई में 2 साल हो जायेंगे रात में 10 बजे (cid:30)े घर में मैं व मेरी मां बेबी (cid:30)ी फिपता जी बाहर पान खाने गये (cid:30)े खड़बड़ाहट की आवाज सुनकर अम्मी ने पूछा कौन है फि(cid:12)रोज व उनके सा(cid:30) दो अन्य लोग आ गये एक व्यफिH ने मुझे पकड़ लिलया त(cid:30)ा इन लोगो ने मेरी मां को चाकू से मारा एक वार एक आदमी पकड़े हुए तो फि(cid:12)रोज ने चाकू मारा जब फि(cid:12)रोज ने पकड़ा तो उनके सा(cid:30) के आदमी ने मारा (cid:30)ा। शोर मचाना चाहा तो मेरा मु ंह बन्द कर फिदया। जब वह जाने लगे तो अब्बू आ गये। उनको देखकर बदमाश भाग गये। मेरे चाचा फि(cid:12)रोज ने मेरी मम्मी को इसलिलए मारा (cid:30)ा फिक उनके कहने पर मेरी मम्मी जमीनी सम्बंधी के श नही उठा रही (cid:30)ी। मेरे पीछे जो वकील के ड्र ेस में खड़े है वही अकील चचा है। मुझे चचा ने इस मुकदमें में पढ़कर बताया व समझाया फिक मुझे क्या बयान करना है।"

8. Learned counsel for the appellant has submitted that as a matter of fact, the incident was not seen by anyone as P.W.2 in her deposition admitted that she was residing alongwith her maternal uncle at Itaunja (Lucknow) and studying in Milan 7 Criminal Appeal No.188 of 2015 Modern School since last three years, which is near to her residence at Itaunja (Lucknow).

9. P.W.3 - Dr. Saroj Kumar, in his deposition stated that 37 incised wounds were found on the body of the deceased, out of which, injury no.1 was caused by a heavy sharp edged weapon and rest of the injuries might be caused by a light weapon, which shows that two weapons were used in the incident. Post mortem report shows that injury No.29, 30, 31, 32, 36 & 37 are caused on the back of body.

10. P.W.5 - M.M. Khan, Investigating Officer, in his deposition, stated that appellant was taken into custody and on his pointing out, knife was recovered from a dilapidated house. However, in his cross examination, he admitted that in the site plan (exhibit ka - 10), he has not shown the blood on the spot because he felt it was not necessary. He also stated that he had not taken the clothes worn by the informant because there was no stain of blood on his clothes. He also admitted that he had not taken the help of the forensic team and also not recorded the statement of the doctor, who conducted the post mortem. The relevant part of the statement of P.W.5 is reproduced as under :- "नक्शा नजरी ्ቚदश, क 10 में खून का पड़ा होना नही लिलखा है। मैंने नक्शा नजरी खून के पड़े होने की दशा,ना आवश्यक नही समझा। मेरे डिडपाट,मेन्ट (cid:12)ोटो्ቇा(cid:12)र व िር(cid:12)गर फि्ቚन्ट संकलिलत करने टीम होती है इनका सहयोग लेने की कोई आवश्यकता नही समझी शव को घटनास्(cid:30)ल से ले जाने के लिलए मेरे फिवभाग से कोई सहयोग नही फिदया। मृतका के पडित व बेटी उसे अस्पताल ले गये (cid:30)े ये शव फिकसके सहयोग व फिकस साधन से ले गये (cid:30)े इसकी आवश्यकता नही समझी घटनास्(cid:30)ल से मजार की दूरी 50-60 मीटर (cid:30)ी। यह फिव्ቫ ्ቚसिस्ቍ मजार है। देश के फिवथिभ्ቐ फिहस्सो से आना जाना रहता है। मैने लाश ले जाने वाले मृतका के पडित पहने हुए कपड़े, कब्जे नही लिलया क्योंफिक उसके कपड़ों 8 Criminal Appeal No.188 of 2015 में खून नहीं लगा (cid:30)ा। वादी जब तक (cid:30)ाने पर मौजूद रहा तब तक उसका (cid:30)ाने पर बयान नही लिलया। मैन पोस्टमाट,म करने वाले वाले डाक्टर का बयान नही लिलया (cid:30)ा न ही मैने बरामद शुदा चाकू को फिदखा मृतका के शरीर पर आयी चोटो के सम्बन्ध में फिवशेष्ሺ की राय ली (cid:30)ी।"

11. Learned counsel for the appellant next submitted that defence witness Parvez, who was real brother of the appellant and informant was also placed before the trial court as D.W.1. D.W.1 categorically stated that there was a dispute in between the informant and his wife related to the sale of one property owned by the informant. he also stated that there was no property dispute in between the appellant with his brothers, as partition of the property had already been done.

12. Submission of the learned counsel for the appellant is that learned trial court has committed error in appreciating the evidences, as admittedly the prosecution case is that the wife of the informant was killed by the appellant with knife by giving 37 injuries, but neither in the site plan nor in the inquest report, pool of blood is mentioned. He further submitted that, in case, P.W.1 was present at the spot alongwith his daughter, and he hugged his wife who was lying on the floor in the pool of blood, the blood must have been there on his clothes, which could not be left to be seen by the Investigating Officer, however, the Investigating Officer categorically denied the same, which clearly establish that P.W.1 was not present on the spot.

13. It has been further submitted by the learned counsel for the appellant that in the statement of doctor, he stated that injury no.1 was caused with a heavy sharp edged weapon and other injuries were caused with a light weapon, but recovery of only one weapon is shown by the prosecution for causing injury. 9 Criminal Appeal No.188 of 2015 Likewise, P.W.2, in her deposition, stated that she was present on the spot at the time of incident, but could not raise alarm because her mouth was got closed by one assailant, however, in cross examination, she narrated a different story that in the said incident, initially the appellant caused injuries to her mother, while she (P.W.2) was caught by his associate, and thereafter, appellant caught her and his associate caused injuries to her mother, which is highly improbable.

14. Learned counsel for the appellant vehemently submitted that there is major contradiction in the deposition of eye witnesses, meaning thereby, no one was present at the time of incident.

15. Learned counsel for the appellant relied on the law laid down by Hon'ble Supreme Court in the case of Abdul Wahid & Anr. Vs. State of Rajasthan passed in Criminal Appeal No.722 of 2012, Anil Phukan Vs. State of Assam reported in (1993) 2 SCR 396, Vinobhai Vs. State of Kerala passed in Criminal Appeal No.1730 of 2017 and Digamber Vaishnav & Anr. Vs. State of Chattisgarh passed in Criminal Appeal No.428-430 of 2019 and submitted that there is no credible evidence at all to connect the appellant with the death of wife of the informant. It has thus been submitted that the appeal is liable to be allowed.

16. On the other hand, learned A.G.A. vehemently opposed the prayer of the appellant and submitted that P.W.2 is an eye witness of the incident, who categorically stated the manner of assault. He has further submitted that the Investigating Officer, in his deposition, has categorically admitted that he did not think it proper to show pool of blood in the site plan. Learned A.G.A. also submitted that the deposition of P.W.2 corroborates with the injuries found on the body of the deceased. Relying on the judgment of Hon'ble Supreme Court in the case of R. Baiju Vs. 10 Criminal Appeal No.188 of 2015 State of Kerala passed in Special Leave to Petition (Crl.) No.12926 of 2024, State of Uttar Pradesh Vs Krishna Master & Ors. reported in 2010 12 SCC 324, Vishnu @ Undrya Vs. State of Maharashtra reported in (2006) 1 SCC 283 and State of Karnataka Vs. K. Yarappa Reddy reported in (1999) 8 SCC 715. Learned A.G.A. also submitted that minor discrepancy in the deposition of the witnesses will not create doubt on their deposition, and therefore, appeal is liable to be dismissed.

17. On a careful consideration of the evidences adduced by the learned counsel for the parties and after going through the record, we find that P.W.1, who is claiming himself as an eye witness and is husband of the deceased, in his deposition, stated that F.I.R. of the case in question was scribed by his relative - Mazid Ali, but in his cross examination, he stated that on his call Mazid Ali went to the police station where he did not interacted with the informant. Mazid Ali talked to the Sub Inspector and on the narration of Mazid Ali, the F.I.R. was lodged. Informant (P.W.1) further stated that appellant suddenly came alongwith two associates in his house and pushed his wife down on the ground and started making assault on her with the knife. P.W.1 also stated that thereafter, he brought his wife to the hospital but she died on the way. On the other side, in cross examination, P.W.1 stated that after incident, he alongwith other neighbors reached on the spot and by clinging his wife, he started crying. After 15 minutes of the incident, police reached on the spot and with the help of constables, he put the body of his wife in a tempo, as a result of which, his clothes and hands were soaked in blood. P.W.2 who had also claimed herself as an eye witness, given a different statement that appellant and two others entered into the house and caused injuries to her mother with the knife while one of the assailant closed her mouth. She further stated that 11 Criminal Appeal No.188 of 2015 when her father entered in the house, accused persons ran away. Thereafter, she alongwith her father brought her injured mother to the hospital but she could not survive. Evidently, the manner of assault explained by P.W.1 and P.W.2 are contrary to each other and there is also lack of certainty about their presence at the time of incident. The Investigating Officer, in his deposition, has categorically stated that clothes of P.W.1 were not blood stained, therefore, same were not taken into custody. He also stated that no assistance was given by the police personnel for bringing the body of the deceased from the place of incident to the hospital and the body was brought to the hospital by P.W.1 and P.W.2 themselves.

18. There is no doubt that death of Baby is homicidal and the medical evidence has also confirmed multiple incised wound in her body leading to profuse bleeding and death. P.W.1 admitted that his hand and clothes were blood stained but Mr. M.M. Khan, Investigating Officer (P.W.5) categorically denied the blood stained hands and clothes of P.W.1, on account of which, clothes were not seized and sent for forensic examination. In the case of Abdul Wahid (supra), it is held that it is for the prosecution to connect the accused to the murder of the deceased by producing credible and legally admissible evidence.

19. Further, in the case of Anil Phukan (supra), it is held that conviction can be based on a testimony of a single eye witness, however, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. Further, in the case of 12 Criminal Appeal No.188 of 2015 Digamber Vaishnav (supra), it is held that one of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed.

20. In view of the above, the judgments relied by the learned A.G.A are not applicable in the present case because there is major contradiction in the deposition of P.W.1, P.W.2 as well as P.W.5 (Investigating Officer). Further, the manner of assault is not corroborating with the injuries found on the body of the deceased. Moreover, the presence of P.W.1. was denied by the P.W.2, who stated that after the incident, P.W.1 entered into the room, on which, the accused persons ran away. As per the version of P.W.2 firstly her mother was caught by one accused person and the appellant caused injuries and thereafter, the appellant caught hold her mother and another accused person caused injuries to her.

21. It is well settled that testimony of ocular evidences cannot be discarded on the basis of minor discrepancy, but once there is major contradiction in the deposition of eye witnesses as well as other evidences, then there would be no reason to accept the testimony of ocular evidences.

22. In the light of above discussions, we find that prosecution has failed to prove the case beyond reasonable doubt. Admittedly, P.W.2 stated that her father entered into the room after the 13 Criminal Appeal No.188 of 2015 incident and body of her mother was brought to the hospital by her alongwith her father, whereas, P.W.1 stated that after 15 minutes of the incident, police reached on the spot and body of his wife was shifted in a tempo with the help of constables, during which, his hands and clothes drenched in blood, however, P.W.5 - Investigating Officer categorically denied the same and stated that no police personnel had helped for bringing the body to the hospital and P.W.1 and P.W.2, on their own, brought the body of the deceased to the hospital.

23. In our considered opinion, therefore, it would not be safe to hold that the prosecution has established its case against the appellant beyond a reasonable doubt. The appellant, in our opinion, is entitled to the benefit of doubt and granting him that benefit, we set aside his conviction and sentence dated 10.6.2015 passed by Additional District Judge, Court No.5, Barabanki in Session Trial No.969 of 2012, 'State Vs. Firoz', arising out of Case Crime No.205 of 2012, under Section 302 I.P.C. read with Section 34 I.P.C., Police Station Dewa, District Barabanki and he is hereby acquitted.

24. The appeal succeeds and is allowed accordingly.

25. The appellant is acquitted from the charges levelled against him and is directed to be released forthwith, if he is not wanted in any other case. (Rajeev Singh,J.) (Rajnish Kumar, J.) September 12, 2025 GauraV GAURAV PAL High Court of Judicature at Allahabad, Lucknow Bench