Appelalnt(s) v. State of U.P on 12 Dec 2025

Judgment

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1. Heard Sri Amit Chaudhary, learned counsel for the appellant and Sri Arunendra, learned A.G.A for the State and perused the record.

2. By means of the present criminal appeal filed under Section 374(2) Criminal Procedure Code (in short Cr.P.C.), the appellant, Anwar, challenges the order and judgment dated 15.03.1982 passed by the Court of Sessions Judge, Unnao in Sessions Trial No. 202 of 1981 (State v. Anwar & Another) Police Station Kotwali, District- Unnao arising out of 2 case crime no. 191 of 1977 whereby the appellant has been convicted under Section 302 of Indian Penal Code (in short I.P.C) readwith Section 34 I.P.C and sentenced to imprisonment for live and co-accused Shakir @ Bankey was acquitted by the same judgment. Prosecution Story in Nutshell:

3. The prosecution story, in brief, is that the complainant Mehboob, Chowkidar, was informed by Hardev Ram, Constable outpost of Magarwara, that in the house of Nabbu Chikwa, adjacent to the house of Ahmadi Faqirni, where Haseena (deceased), her husband Anwar and Anwar’s friend were staying since yesterday, the dead body of Haseena was lying there, with noose of dhoti tied around her neck. He was directed to lodge the report at the police station.

4. On the bases of this oral report a case under Section 302 IPC was registered (Ext. Ka-1) and GD entry no. 24 was made (Ext. Ka-2). The investigation commenced thereafter. The Investigating Officer prepared the inquest report (Ext. Ka-4), sketch of the dead body (Ext. Ka-5), challan of dead body (Ext. Ka-6) and letter to C.M.O. (Ext. Ka-7) duly sealed dead body and sent for post mortem, and prepared a site plan (Ext. Ka-13). Furthermore, he took the custody of dhoti used for strangulation (Ext. Ka- 8), a piece of Tat and Kathri lying under and near the head of the dead body containing some vomited material and blood (Ext. Ka-9), samples of blood stained and plain earth (Ext. Ka-10), broken lock of the house (Ext. Ka-11) and the house-hold good found therein were also taken into the custody and entrusted to the Superdigi of Ramjan Ali (Ext. Ka-12). Furthermore, I.O. made an additional enquiry from the post-mortem 3 doctor, whether the death occurred on date of incident and whether the abdomen was completely empty as result of vomiting by the deceased (Ext. Ka-14). During further investigation, the co-accused Shakir alias Bankey was arrested, suspecting him to be friend and associate of Anwar in the crime.

5. Upon completion of investigation, a charge-sheet under Section 302/34 IPC was submitted against both the accused persons (Ext. Ka-15) and the case was committed to the Session Court, where charge under Section 302/34 IPC was framed. Further, both accused pleaded not guilty and denied participation or complicity in the incident. Accused Anwar denied having gone to live with Hasina (deceased) in the house of Nabbu and co- accused Bankey denied having any concern with Anwar or Hasina, he further stated that he had been taken into custody from his house in village Bachhauli.

6. To prove its case, the prosecution examined nine witnesses, PW-1 Ramjan

Ali (father of deceased), PW-2 Smt. Ahamdi (aunt of deceased & neighbor of Nabbu), PW-3 Chhota Singh, PW-4 Smt. Asgari (daughter of Ahamdi), PW-6 Sat Narayn Tiwari, who are witnesses of fact. PW-5 S.I Sohan Lal Shukla, PW7- Dr. V.K. Verma (post-mortem doctor), PW-8 S.I Ram Shankar, and PW-9 B.S. Chauhan (Special Executive Magistrate) who are formal witnesses and proved various steps in the investigation and medical evidence.

7. Appellant did not produce any oral evidence in his defence. In his statements under Section 313 CrPC, the appellant offered no explanation and simply denied by saying “Galat hai pata nahi”. He further stated that 4 he has been falsely implicated in the case on the basis of enmity. Thus, the appellant pleaded innocence.

8. Upon a comprehensive appraisal of the oral and documentary evidence on record, the learned Trial Court convicted the accused Anwar under Section 302/34 IPC and sentenced him to life imprisonment, whereas, the co- accused Bankey was acquitted under the charges of Section 302/34 IPC. Submission made by learned counsel for the accused-appellant :-

9. Learned counsel for the accused-appellant submitted that a false and concocted story has been framed against the appellant due to previous enmity and that the prosecution witness had not seen the incident. It is further argued that there is unexplained delay in lodging the First Information Report, which casts a serious doubt on the prosecution version. It is also contended that the entire case rests on circumstantial evidence and that the prosecution has failed to establish a complete and unbroken chain pointing only towards the guilt of the appellant.

10. Learned counsel further submits that there exist material inconsistencies between the ocular evidences of the witnesses and the medical findings recorded during the post-mortem examination, rendering the prosecution evidence wholly unreliable. Attention has also been invited to the condition of decomposition of the deceased’s body, as found by the autopsy surgeon, which according to the appellant is inconsistent with the prosecution’s case regarding the time of death.

11.Furthermore, the learned counsel submits that the appellant is entitled to the presumption of innocence, which stands strengthened in the present case due to the acquittal of co-accused Shakir @ Bankey. On that premise, 5 it is argued that once the prosecution story has been disbelieved with respect to the co-accused, it would not be safe to rely upon the same testimony to convict the present appellant. It is lastly contended that the investigation was neither fair nor impartial and that the prosecution has failed to prove the case beyond reasonable doubt, therefore the appellant deserves to be acquitted. Submission made by learned A.G.A : -

12. Per contra, learned A.G.A. has vehemently opposed the submissions advanced by the learned counsel for the appellant. He further submitted that the impugned judgment and order have rightly been passed by the learned trial court in accordance with law after considering the evidences and material available on record. Thus, learned A.G.A. submitted that the accused-appellant has rightly been convicted in accordance with law and sentenced accordingly. There is no illegality or error in the impugned judgment and order. It is further submitted that the appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed. Oral Testimonies: In order to appreciate the issues arising in the present appeal, it is appropriate to examine, in brief, the oral evidence adduced by the prosecution.

13. PW-1 Ramzan Ali, father of the deceased, deposed that his daughter, Haseena, married the accused, Anwar, around 8-9 years back through her sister-in-law, Alla Rakkhi, who happened to be one of the relatives of Anwar. He further deposed that approximately one month prior to the incident, Haseena had come to him with complaints regarding Anwar’s cruel behaviour towards her and he advised her to go to Alla Rakhhi, who 6 had arranged the marriage. However, the matter was subsequently settled, and Anwar took her back to his house after about 8–10 days. He further deposed that upon receiving information about his daughter’s death, he went to the village Magarwara, where the inquest proceedings were already underway, and he informed the Inspector present there about all the facts within his knowledge.

14. During cross-examination, he deposed that after the settlement of the dispute between Haseena and her husband, he was unaware of her whereabouts.

15. PW-2 Smt. Ahmadi, an eye-witness of the incident, deposed that a day before the date of occurrence, the deceased came to her house seeking shelter as she was reluctant to accompany her husband due to his cruel behaviour towards her. Haseena stayed in her house for that night. She further deposed that the next day, accused Anwar, along with his daughter and his friend Bankey, came to her (Ahmadi’s) house to take Haseena back, but she refused. Thereafter, a quarrel ensued between them, upon which two policemen and one Tiwari Ji (Sat Narain Tiwari) intervened and tried to settle the dispute. Haseena did not agree to go to her matrimonial village, Patari, but consented to reside anywhere in Magarwara instead. She further deposed that there was a vacant house belonging to one Nabbu Chikwa situated adjacent to her house, and the keys of the said house were with her. Anwar obtained permission from Nabbu and thereafter all of them went inside that house. She further deposed that on the day of the incident she was residing in her house along with her two daughters, Asgari and Akbari, while her husband was not present. She further 7 deposed that at about 8:00 p.m. she again heard noise of quarrel between the accused and deceased and thereafter, she along with her daughters, peeped through the boundary wall and saw Haseena lying on the ground while Anwar and his friend were sitting on either side of her shoulders, pressing them down. She further deposed that there was a lantern burning at the spot, although the light was dim, and she also stated that her eyesight was weak. She further deposed that she called out to Anwar asking him to stop, but he warned her not to interfere in their personal matter. She further deposed that later she heard sound of opening and closing of the door, of house of Nabbu. She further deposed that the next day, around 1:00–1:30 p.m., while she and her daughters were returning from cutting grass, they saw the dead body of Haseena and police personnel gathered at the spot. She further deposed that after that night she did not see Haseena alive. She further deposed that she did not previously knew Bankey and saw him for the first time in the day on the date of the occurrence, when the initial quarrel took place between the accused and deceased, and again during the occurrence of the incident (i.e. in the night). She further identified him during the jail identification proceedings, in district jail.

16. During cross-examination, she deposed that Haseena had come on a Monday, seeking shelter. She further deposed that initially, Haseena was unwilling to reside with Anwar and expressed her desire to stay separately, but after assurance of police personnel, she agreed to stay with him in Magarwara. She further deposed that she had also narrated the entire incident (of crime) to Tiwari Ji, who earlier that day along with the police 8 convinced Haseena to stay with Anwar. She further deposed that she herself did not go to the Police as one Chowkidar, Mehboob informed at around 10:00 P.M. that police constables were not in the Chowki due to another murder elsewhere. She further deposed she narrated all the facts known to her to the said Chowkidar. She further deposed that she had a weak vision and could not see properly although she could make out that persons were present there. She further deposed that about 20–22 days after the incident she was called by Kotwali for identification of the apprehended accused in District Jail, where she and her daughters identified Bankey. She further deposed that it would be wrong to say that she had been pressurized by the police to give such testimony.

17. PW-3 Chhota Singh, deposed that he knew both Haseena and Anwar. He further deposed that on the date of occurrence, at about 8:00 p.m., while returning home along with one Kallu Singh and while crossing the galiyara in front of Nabbu’s house, he saw the accused Anwar and his friend along with a female child aged about 2½–3 years. The accused was locking the door of the house from outside, while the other person was holding a bicycle and carrying the child. He further deposed that the accompanying person was later identified by him as Bankey in the District Jail. He further deposed that the galiyara was illuminated by the lights coming from the factories of Kashi Jewellers, Chandan Mills, and a nearby tubewell of Sardar Singh, due to which he was able to identify the persons present there.

18. During cross-examination, he deposed that he came to know about the death of Haseena the next morning but did not enter the house at that time 9 and had reached there around 1:00–1:30 p.m., when the inquest proceedings were being conducted. He further deposed that he knew the deceased prior to the incident and had seen her living alone in the house of Nabbu for about 20–25 days, and that accused had visited her several times. He further deposed that he was about 13–14 steps away from accused when he saw him locking the door of Nabbu’s house. He further deposed the factory of Kashi Jewellers was at a distance of about one furlong from the galiyara, the tubewell was around 40 steps away towards the south at a certain elevation in the field, and the Chandan Mill was about 30–32 steps away at a considerable height. He further deposed that upon seeing the dead body, he narrated the incident to other people present there and his statement was recorded by the inspector on the same day. He further deposed that he had not mentioned earlier about the lights emanating from the aforesaid premises illuminating the galiyara and denied the suggestion that he had not seen the accused locking the door and was deposing under pressure from the police authorities.

19. PW-4 Smt. Asgari, daughter of Smt. Ahmadi, deposed that she did not know the deceased prior to the incident and came to know her only when she came to reside with her mother, a day prior to the occurrence. She further deposed that the deceased had spent the previous night in her house and thereafter went to reside in the house of Nabbu along with accused Anwar and one of his (Anwar’s) friends. She further deposed that her house and the house of Nabbu are adjacent to each other and the boundary wall between them is uneven in height. She further deposed that at about 8:00 P.M., she first heard the noise of a quarrel between the deceased and 10 the accused and also heard the deceased crying. On this, she, along with her mother and her sister, Akbari, peeped over the boundary wall, where they saw Haseena lying straight on the ground while both her shoulders were being pressed down by Anwar and his friend. On being questioned by her mother, the accused-appellant told him to mind her own business. She further deposed that a lantern was burning at the spot where the deceased was lying, though it was giving dim light. She further deposed that, earlier on the same afternoon, she had seen the accused and the deceased quarrelling in front of the gate of her house, where the accused- appellant, his friend, and two policemen were present. The accused- appellant was asking the deceased to return with him, but she was reluctant. Ultimately, she agreed upon persuasion by the policemen and one Tiwari Ji, on the condition that the accused would reside with her in some house in Magarwara and not in her matrimonial village. She identified the co-accused Bankey, who was present in the trial court, stating that she did not know him earlier and first saw him when he came to her house with Anwar. She further deposed that she had recognised him during the jail identification proceedings and did not see him in between. She further deposed that after witnessing the incident around 8:00 P.M., she had gone inside her house and subsequently heard the door of Nabbu’s house being shut, though she did not got up to check.

20. During cross-examination, she deposed that it would be incorrect to say that Haseena had been residing in the house of Nabbu for about one month prior to the occurrence. She further deposed that when Anwar scolded Haseena, she presumed it to be a mere quarrel and did not apprehend that 11 Anwar would kill her. She further deposed that at night, of the occurrence, her mother (Ahmadi) went to the police chowki and later Tiwari Ji and the Chowkidar came to their house. She further deposed that both of them peeped through the intervening wall and saw Haseena lying motionless and dead on the floor, though she herself did not see the body. She further deposed that Chowkidar Mehboob had since died. She deposed that she did not narrate anything to Tiwari Ji or the Chowkidar, nor did Chhota Singh and Kallu Singh accompany them to her house. She denied the suggestion that Bankey was shown to her in Kotwali after his arrest.

21. PW-5 Sohan Lal Shukla, Sub-Inspector, Thana Kotwali deposed that on

27.04.1977 he was posted as Head Moharrir at Thana Kotwali. He further deposed that he received information regarding the incident when the Chowkidar, Mehboob, came to the Police Station at about 9:40 A.M. and reported the matter. He further deposed that he recorded the information as narrated by Mehboob and obtained his thumb impression thereon. He further deposed that Mehboob has since died.

22. PW-6 Sat Narain Tiwari, deposed that he did not know Anwar, his friend, or Haseena prior to the date of occurrence. He further deposed that on day of the occurrence, at around 12:00-12:30 P.M., he had gone to call his driver, Raees, who resided in front of Nabbu’s house and was a neighbour of Ahmadi. He further deposed that at that time a Panchayat was convened under a Neem tree, which comprised two constables, himself, Ahmadi, Haseena, Sundara (mother of Raees), the accused Anwar and his friend Bankey, along with a small girl. He further deposed that Anwar wanted to take Haseena back with him, but she was reluctant and 12 agreed only to reside with him in a nearby house. He further deposed that as the house of Nabbu Chikwa, adjacent to Ahmadi’s house, was vacant and the keys were with Ahmadi, permission was obtained and the keys were handed over to Anwar, after which he left for his factory. He further deposed that at around 9:00-9:30 P.M., while he was at Lakshmi Narayan Panwala shop, he saw both the accused along with the girl coming out of the galiyara. He further deposed that on inquiring Anwar told him that Haseena had run away and they were returning home. He further deposed that about 1 ½ hours later, Ahmadi came to him in a panic and informed him that the door of Nabbu’s house was locked from outside, earlier there were noises inside the house but now everything had gone silent, and Anwar and his friend were not seen. He further deposed no constables were present at the Chowki as they had left to investigate another murder. He further deposed that he met the Chowkidar, Mehboob, on the way and narrated to him what Ahmadi had told and thereafter, they both went to Ahmadi’s house. He further deposed that since the house was locked from outside, they peeped through the intervening wall and found a woman lying motionless and still under the chapper (thatch) to the left of the door, in dim lantern light. He further deposed that he became frightened and therefore instructed the Chowkidar to remain there until the police arrived. He further deposed that the next day when he came along with the Kotwal, he came to know that the dead woman was Haseena.

23. During cross-examination, he deposed that Raees worked as his driver and resided about 2–3 furlongs away from his own house. He further deposed that no documentation was prepared regarding the Panchayat. He denied 13 having visited Nabbu’s house the following morning at around 5:00–6:00 A.M. and instead deposed that during said hours he had gone to Kanpur for his work.

24. PW-7 Dr. V.K. Verma, Senior Surgeon, District Hospital Banaras, deposed that on 28.04.1977 he was posted Senior Surgeon, District Hospital Unnao and on that day at 11:45 AM he had performed the post- mortem examination of the deceased. He further deposed that deceased was 22 years old and had been dead for 2-5 days, the rigor mortis had passed away, decomposition had begun, and the eyes had bulged out. The following ante-mortem injuries were found on the deceased’s body: Injury No. 1- Ligature mark, measuring 1½″ wide, in lower neck horizontally placed encircling the neck. Injury No. 2- Contusion on lower aspect of chin on either side ½″ X ½″ in size.

25. He further deposed on internal examination he found that the brain was congested , larynx and trachea were also found congested and contained frothy mucus, the lungs were also congested and on dissection they emitted dark fluid, right side of the heart was full but left was empty, and the liver, spleen and kidneys were congested. He further deposed that in his opinion death was caused by asphyxia as a result of strangulation. He further deposed that deceased could have died on 26.04.1977 at around 8:00 or 8:30 PM and it is possible that injury no.1 could have been caused by a cloth being tightly wrapped around the neck.

26. During cross-examination, he deposed that decomposition usually begins two days after death, but it can begin earlier in the summers. He further 14 deposed that it is possible that the ligature mark of injury no. 1 could have been caused by thick rope. He also clarified that when he approximated the probable time of the death to 2- 5 days prior, he meant that the death must have occurred atleast two days and atmost five days since the date of post-mortem examinations.

27. PW-8 Ram Shankar, Sub-Inspector, deposed that from 27.04.1977 to

05.07.1978 he was posted as Sub-Inspector, Police Station Kotwali, Unnao and during that period Sukhpal Singh was posted as in-charge of station. He further deposed that on 27.04.1977 the investigation of this case was started and he in presence of Sukhpal Singh prepared panchnama of dead body (Ext. Ka 4), sketch of the dead body (Ext. Ka-5), challan lash (Ext. Ka-6), letter to CMO (Ext. Ka-7). He further deposed that the dead body was sealed and sent for post-mortem along with sample seal through Constable Md. Ishtiyak. He further deposed that the dhoti which was wrapped around the neck of the dead body, Kathri on which blood was spilled, and Tat on which vomit was laying were collected (Ext. Ka- 8 & 9 respectively). He further deposed that he had collected the bloodstained and plain soil (Ext. Ka-10) and also took the custody of the lock (Ext. Ka- 11). He further deposed that on reaching the house of deceased (i.e. house of Nabbu), the same was found to be locked and when it was opened no one was present inside the house and he prepared the memo of belonging of the house (Ext. Ka-12). He further deposed he took the statement of witnesses namely Devi Prasad, Narendra Singh, Dhirendra Singh, CP Hardev Ram, Ramzan, Rasool Ahmed, Asgari , Akbari, Sundara, Chhota Singh, Kallu Singh, Mehboob Chowkidar, Laxmi Narayan and Satya 15 Narayan in his case dairy and prepared site plan (Ext. Ka-13). He further deposed that investigation was again conducted on 28.04.1977, wherein appellant was searched but was not found, statements of his parents were taken, and on 29.04.1977 search was again conducted but he was not found.

28. PW-9 B.S. Chauhan, Special Executive Magistrate, deposed that he conducted the Test Identification Parade (TIP) of co-accused Bankey @ Shakir at District Jail, Unnao. He further deposed that the statements of the accused relating to the witnesses were recorded in Column No. 1 of the memo, while the identification marks of the accused and the medical treatment received by him in respect of those marks were mentioned in Columns No. 3 and 4 respectively. He further deposed that he arranged around 10 under-trial prisoners of similar appearance and thereafter conducted the TIP. He further deposed that witnesses were summoned individually for identification and, after completion, were made to sit at a place ensuring no interaction with the remaining witnesses. He further deposed that nine physical witnesses participated in the TIP and each of them correctly identified the co-accused, Bankey, without any mistake. He further deposed that the entire procedure was duly recorded in the memo (Exhibit Ka-16). Court Analysis: Delay in lodging FIR:

29. It is argued on behalf of the appellant that the prosecution version deserves to be discarded on account of delay in lodging the FIR. However, it is a settled legal principle that delay in filing FIR by itself cannot be a 16 ground to doubt the prosecution case and discard it. The Hon’ble Supreme Court in Ravinder Kumar v. State of Punjab, (2001) 7 SCC 690 has held: “13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

15. We are not providing an exhaustive catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR.” 17

30.Similarly, in Sahebrao v. State of Maharashtra, (2006) 9 SCC 794, the Hon’ble Supreme Court reiterated: “6. The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.”

31.Learned counsel for the appellant has placed reliance upon the judgments of the Hon’ble Supreme Court in Marudanal Augusti v. State of Kerala,