Amzad And 2 Others vs State Of U.P.

AFR
RESERVED ON 07.08.2026
DELIVERED ON 05.11.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
CAPITAL CASES No. - 20 of 2022
with
Reference No. 15 of 2022 
Amzad and 2 others
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Arvind Kumar Singh, Devesh
Vikram, Dinesh Kumar,
Gaurav Kakkar
Counsel for
Respondent(s)
: G.A.
Along with:
Criminal Appeal No. 8766 of 2022:  
Smt. Shakeela
1.
Versus
State of U.P.
Court No. – 43
HON'BLE SIDDHARTH, J.
HON'BLE VINAI KUMAR DWIVEDI, J.

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CAPT No. - 20 of 2022
(Delivered by Hon’ble Vinai Kumar Dwivedi, J.)
1. Heard Mr. Gaurav Kakkar, learned Senior Counsel,
assisted by Mr. Raghvendra Prakash, learned counsel for
the appellants in both the appeals; Mr. Dinesh Kumar,
learned Amicus Curiae for appellant no. 2 (in Capital
Cases No. 20 of 2022); Mr. Arvind Kumar Singh, learned
Amicus Curiae for appellant no. 3 (in Capital Cases No.
20 of 2022); Mr. Thakur Azad Singh, learned A.G.A. for
the State-respondent and perused the material on record.
2. The present Capital Criminal Appeal No. 20 of 2022
(Amzad and others v. State of U.P.) has been preferred
by the death convicts/appellants, namely, Amzad,
Ramzan and Arshad, against the judgment and order of
capital sentence dated 14.10.2022, passed by the
learned Sessions Judge, Varanasi, in Sessions Trial No.
597 of 2012 (State v. Amzad and others), arising out of
Case Crime No. 68 of 2012, under Sections 147, 148,
302/34, 307/34, 323/34, 504, 506(II), 149 I.P.C., Police
Station Chowk, District Varanasi. By the impugned
judgment and order dated 14.10.2022, the appellants
have been convicted with death sentence. 
3. The Capital Reference No. 15 of 2022 arises out of
the same judgment and order dated 14.10.2022, passed
by the learned Sessions Judge, Varanasi, in Sessions Trial
No. 597 of 2012 (State v. Amzad and Others). After
imposing the death penalty upon the appellants, namely,
Amzad, Ramzan, and Arshad, under Section 302 IPC, the
Sessions Judge referred the matter to this Court for
confirmation of the death sentence.

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CAPT No. - 20 of 2022
4. The Criminal Appeal No. 8766 of 2022 (Smt.
Shakeela v. State of U.P.) has been preferred by the
convict/appellant, Smt. Shakeela, wife of Amzad, against
the same judgment and order dated 14.10.2022, passed
by the learned Sessions Judge, Varanasi, in Sessions Trial
No. 597 of 2012 (State v. Amzad and Others), arising out
of Case Crime No. 68 of 2012, under Sections 147, 148,
307, 323, 504, 506(II), 302 IPC, at Police Station Chowk,
District Varanasi. By the impugned judgment and order,
appellant Smt. Shakeela was convicted and sentenced to
life imprisonment for the offence punishable under
Section 302 IPC.
5. Since Capital Criminal Appeal No. 20 of 2022
(Amzad and Others v. State of U.P.), Capital Reference
No. 15 of 2022 and Criminal Appeal No. 8766 of 2022
(Smt. Shakeela v. State of U.P.) arise out of the same
judgment and order dated 14.10.2022, passed by the
Sessions Judge, Varanasi, all three matters are being
considered and decided together by this common
judgment.
6.  The facts of the present case as revealed from the
written report (Exhibit Ka-1) dated 16.06.2012 are that
the informant, Md. Saeed alias Kaju, son of Md. Siddiq,
resident of House No. 4/358 Sarai Govardhan,
Varanasi, submitted a written report (Exhibit Ka-1)
through his brother Salim @ Pappu before the Station
House Officer, Police Station Chowk on 16.06.2012 to the
effect that on 16.06.2012 at about 8.30 p.m., the
informant, his two brothers Md. Shafeeq alias Raju and
Md. Shakeel alias Jau, along with his nephews Chand and
Shalu, were going towards the Mazar from their house.

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CAPT No. - 20 of 2022
Just then, Amzad, Iqbal Rain, Arshad, Ramzan, and other
members of their family, including Amzad's wife Shakeela
and daughter Shabnam, jointly started beating them
mercilessly on their head and body with bamboo sticks.
Upon hearing the cries of brother Raju for help ('bachao-
bachao'), Kamil Bhai, who cleans the Mazar, and nephew
Nate came to rescue them. The accused persons started
beating them as well in the same manner, due to which
the informant's brother Shafeeq alias Raju and Kamil Bhai
succumbed to their injuries on the spot. The local
residents rushed the informant and other injured persons
to the hospital. Upon reaching the hospital, the
informant's brother Jau passed away, while the nephews
were admitted to the hospital. Even now, there is a
constant threat to the informant and his family members
from Iqbal Rain, his brothers, nephews, and the family
members of Ramzan.
7. On the basis of the above written report (Exhibit
Ka-1), a first information report (Exhibit Ka-7) was
registered as Case Crime No. 68 of 2012, under Sections
147, 302, 307, 323, 504, 506 and 34 I.P.C. at Police
Station Chowk, District Varanasi, against the named
accused persons by Narendra Kumar Rai (PW-7).
8. After registration of the first information
report (Exhibit Ka-7), the investigation of the case was
taken up by Investigating Officer, Mithilesh Kumar Mishra,
(PW-8). The Investigating Officer reached the place of
occurrence and recorded the statements of the
prosecution witnesses under Section 161 Cr.P.C. He also
attempted to record the statements of the injured
persons under Section 161 Cr.P.C., who were admitted to

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CAPT No. - 20 of 2022
the hospital for treatment, and made efforts to arrest the
accused named in the written report (Exhibit Ka-1),
however, he was unsuccessful in his attempt. From the
place of occurrence, the Investigating Officer collected
blood-stained soil and simple soil. He also took into
custody four bamboo sticks, measuring about two hands
in length, which bore bloodstains, and prepared a
recovery memo of the aforesaid articles as Exhibit Ka-10.
9. The Investigating Officer, Mithilesh Kumar Mishra
(PW-8), also prepared and got completed other necessary
police papers of the deceased persons relating to
panchayatnama (Inquest) and post-mortem examination,
such as, the Inquest Reports of the deceased persons
(Exhibit Ka-13, Exhibit Ka-14, Exhibit Ka-15, and Exhibit
Ka-16), Police Form No. 379 (Exhibit Ka-17, Exhibit
Ka-18, Exhibit Ka-19), Challan Nash (Exhibit Ka-20),
Police Form No. 33 (Exhibit Ka-21), Challan Nash (Exhibit
Ka-22, Exhibit Ka-23, Exhibit Ka-24), Police Form No. 33
(Exhibit Ka-25), report for conducting the post-mortem
examination of deceased Md. Shafeeq (Exhibit Ka-26),
report in respect of the post-mortem examination of
deceased Md. Shafeeq sent to P.S. Lanka (Exhibit Ka-27),
report sent to P.S. Lanka for post-mortem examination of
deceased Kamil (Exhibit Ka-28), and letter to the C.M.O.
for post-mortem examination of deceased Kamil (Exhibit
Ka-29). The Investigating Officer also inspected the place
of occurrence and prepared the site plan as Exhibit
Ka-11.
10. After completing all the necessary formalities
relating to the investigation, the Investigating Officer,
Mithilesh Kumar Mishra (PW-8), submitted a charge-sheet

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CAPT No. - 20 of 2022
(Exhibit Ka-12) against the accused persons, namely,
Amzad, Iqbal Rain, Arshad, Ramzan, Smt. Shakeela and
Kumari Shabnam, under Sections 147, 148, 302, 307,
323, 504, 506 and 34 IPC before the competent Court of
the Magistrate having jurisdiction. A separate
supplementary charge-sheet was submitted against
juvenile Kumari Shabnam before the Juvenile Justice
Board.
11. Dr. Ashok Kumar Upadhyay (PW-3) conducted the
postmortem examination of the dead body of the
deceased, Md. Shafeeq, on 18.06.2012 and prepared the
postmortem report as Exhibit Ka-2. According to the
postmortem report (Exhibit Ka-2), the following ante-
mortem injuries were found on the dead body of the
deceased Md. Shafeeq:-  
"Injury No. 1: Lacerated wound measuring 2 cm x 2 cm,
situated on the right side of the head touching the
eyebrow, brain deep.
Injury No. 2: Lacerated wound measuring 3 cm x 2 cm x
bone deep, situated on the upper right side of the head, 9
cm above the right ear.
Injury No. 3: Abraded wound measuring 3 cm x 3 cm,
situated on the right arm, 10 cm below the shoulder.
Injury No. 4: Multiple abraded contusions measuring 12
cm x 10 cm on the right side of the face extending from
the forehead across the face, which covered Injury Nos. 1
and 2. The said wound was depressed and broken at
multiple places, resulting in fractures of the frontal head
bone and right jaw bone on the right side. Frontal and
temporal bones on both sides, parietal bone, occipital
bone, and right jaw bone were fractured, and the right
eye was crushed. Brain weight was 1,120 grams in a
ruptured condition with internal and external blood
clotting."
In the opinion of Dr. Ashok Kumar Upadhyay (PW-3), the
cause of death was head injuries mentioned above, which
were ante-mortem in nature and sufficient to cause death

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CAPT No. - 20 of 2022
in the ordinary course of nature, and could have been
caused by a hard and blunt object. 
12. Dr. Satish Chandra Singh (PW-4) conducted the
post-mortem examination of the dead body of the
deceased, Kamil, on 17.06.2012 at 6:45 a.m. and
prepared the post-mortem report, which was exhibited as
Exhibit Ka-3. According to the post-mortem report
(Exhibit Ka-3), the following ante-mortem injuries were
found on the body of the deceased:
"Injury No. 1: Multiple abraded contusions measuring 15
cm × 6 cm on the front right side of the face.
Injury No. 2: An abraded contusion measuring 2 cm × 2
cm on the top of the left shoulder.
Injury No. 3: An abraded contusion measuring 3 cm × 1
cm on the outer left side of the neck, 4 cm below the left
ear.
Injury No. 4: On opening the skull, a contusion measuring
6 cm × 6 cm was found in the occipital region at the back
of the skull, along with a fracture of the occipital bone."
According to the opinion of Dr. Satish Chandra Singh
(PW-4), the cause of death was head injuries, primarily
Injury Nos. 1 and 4, which were sufficient to cause death.
He further opined that all the injuries could have been
caused by a hard and blunt object. Upon examination of
the cranial cavity, blood clots were found on the internal
and external surfaces of the brain membranes, and the
brain weighed 1,180 grams.
13. Dr. Satish Chandra Singh (PW-4) conducted the
postmortem examination of the dead body of the
deceased, Md. Shakeel alias Jau, son of Mohd. Siddique
Khan, on 17.06.2012 at 5:00 A.M. and prepared the
postmortem report as Exhibit Ka-4. According to the
postmortem report (Exhibit Ka-4), the following ante-

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CAPT No. - 20 of 2022
mortem injuries were found on the dead body of the
deceased Jau:
"Injury No. 1: Contusion measuring 5 cm x 5 cm around
the left eye, and the left eye conjunctiva was congested.
Injury No. 2: Contusion measuring 4 cm x 4 cm around
the right eye.
Injury No. 3: Stitched wound measuring 7 cm present on
the head, 5 cm above the left eyebrow, 10 cm above the
left ear, and 5 cm outwards from the midline of the skull.
The second end of the stitched wound terminated 10 cm
above the left eye.
Injury No. 4: Stitched wound measuring 2 cm present on
the left side of the face, extending up to the outer part of
the left eye.
Injury No. 5: Stitched wound measuring 1 cm long
present on the left side of the lower lip, extending 2 cm
outwards from the center of the lip.
Injury No. 6: Multiple stitched wounds in an area
measuring 7 cm x 1 cm present on the chin, covering the
left side of the face and extending up to the middle of the
chin."
In the opinion of Dr. Satish Chandra Singh (PW-4), lower
jaw bone was fractured, and on opening the skull, left
temporal bone, parietal bone, and middle and frontal left
cranial fossa were fractured. Brain membranes were
ruptured and congested, brain weight was 1,210 grams in
a ruptured condition, and blood clotting was present
inside and outside the brain membranes. The cause of
death was coma resulting from head injuries.
14. Dr. Vinay Kumar Sharma (PW-5), ENT Surgeon,
conducted the postmortem examination of the dead body
of the deceased Chand alias Raju, son of Mohd. Shafeeq,
on 21.06.2012 at 12:30 A.M. (night) pursuant to the
order of the District Magistrate dated 20.06.2012, and
prepared the postmortem report as Exhibit Ka-5.
According to the postmortem report (Exhibit Ka-5), the

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CAPT No. - 20 of 2022
following ante-mortem injuries were found on the dead
body of the deceased Chand alias Raju:
"Injury No. 1: Lacerated wound measuring 7 cm x 2 cm x
brain deep, touching the middle part of the head over the
left eyebrow.
Injury No. 2: Lacerated wound measuring 1 cm x 5 cm x
brain deep, on the right forehead, situated 2 cm outwards
from the midline of the head and 4 cm above the right
eyebrow.
Injury No. 3: Lacerated wound measuring 0.5 cm x 0.5
cm on the tip of the nose.
Injury No. 4: Lacerated wound measuring 3 cm x 1 cm x
bone deep, in the middle part of the chin.
Injury No. 5: Contusion measuring 7 cm x 6 cm present
on the left side and front of the neck.
Injury No. 6: Contusion measuring 10 cm x 6 cm on the
forehead."
On internal examination, frontal, temporal, and parietal
bones on both sides of the skull were fractured. Brain
membranes were congested, and nasal bone as well as
jaw bone were fractured. Small intestine contained
mucus and gas, while large intestine contained fecal
matter and gas. The deceased died during treatment at
Alaknanda Hospital on 20.06.2012 at 9:45 P.M. In the
opinion of Dr. Vinay Kumar Sharma (PW-5), the cause of
death was head injury and resulted from the
aforementioned injuries. 
15. Dr. R.P. Singh (Raghvendra Pratap Singh) (PW-6),
Consultant Neurosurgeon at Alaknanda Hospital,
Varanasi, testified that the deceased, Chand, was
admitted to Alaknanda Hospital on 17.06.2012 with
severe head injuries. Multiple blood clots were present
inside his brain, blood was present in the cerebrospinal
fluid (CSF), and he had suffered a haemorrhage. Despite
treatment, the deceased succumbed to his injuries on
20.06.2012 at about 9:45 p.m. The witness identified the

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CAPT No. - 20 of 2022
death certificate on record and stated that it had been
issued after the deceased was declared dead. He further
stated that the death certificate bore the signature of Dr.
Ram Singh, who was working at the hospital at the
relevant time.
16. Dr. T.N. Verma (PW-9), Emergency Medical Officer
(E.M.O.), testified that on 16.06.2012 at 9:30 p.m., the
injured, Shalu, was admitted to Singh Medical Surgical
Centre, Varanasi, vide Registration No. 81, with severe
injuries to his head and left eye. Emergency treatment
was administered, and life-saving medicines were given.
The witness verified the treatment documents and proved
them as Exhibits Ka-36 and Ka-37. He further stated that
on 27.06.2012 at 11:50 a.m., the injured was referred to
a higher medical centre for specialized treatment of his
left eye. The witness proved the original referral letter as
Exhibit Ka-38 and the photocopy of the operation note as
Exhibit Ka-39.
17. Sunil Kumar Shah (PW-10) testified that the injured,
Shalu, was brought to his hospital on 27.06.2012 for
emergency treatment. The injured had sustained a head
injury and lost vision in his left eye. His left eye was
protruding outwards, was red, and its pupil was non-
reactive. An X-ray examination revealed a fracture of the
bone surrounding the left eye. Specialist Dr. Ravindra
Mohan was called from Chennai to examine the injured,
as mentioned in the report. Dr. Ravindra Mohan advised
surgery in view of the fracture of the left orbital bone and
the accumulation of blood, which had caused the eye to
protrude and resulted in loss of vision.

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CAPT No. - 20 of 2022
18. On 07.07.2012, the injured was admitted for
surgery, during which the accumulated blood was
evacuated and the eye was re-positioned. Optical
Coherence Tomography (OCT) of the eyes was also
performed. The witness proved the relevant medical
reports, collectively marked as Exhibits Ka-40 to Ka-46 as
well as the report of Arihant Diagnostics as Exhibit Ka-47.
19. Dr. Virendra Kumar Singh (PW-11) testified that on
17.06.2012 at 11:55 a.m., the injured, Shalu, was
brought before him for medical examination. As recorded
in the medico-legal report (Exhibit Ka-48), the following
injuries were found on the body of injured:
"Injury No. 1: A lacerated wound with swelling,
measuring 6 cm × 4 cm, on the left side of the
head, situated 3 cm above the left ear, with
active bleeding. An X-ray and a CT scan of the
head were advised.
Injury No. 2: Contused swelling measuring 3 cm
× 3 cm over the left eye. The injured was
referred to an eye specialist for further
evaluation.
Injury No. 3: A red contusion measuring 6 cm ×
4 cm on the left side of the chest, situated 8 cm
below the nipple. An X-ray examination was
advised."
20. Dr. Nirmal Kumar Jain (PW-12) of Arihant Diagnostic
Centre, Mahmurganj, Varanasi, testified that the injured,
Shalu, visited the diagnostic centre on 07.07.2012 for a
CT scan. He prepared the report on the basis of the CT
scan film and proved the CT scan report as Exhibit Ka-47.
21. After the submission of the charge-sheet (Exhibit
Ka-12), the case was committed by the learned
Magistrate to the Court of Session for trial. The Trial
Court framed charges against the accused persons,

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CAPT No. - 20 of 2022
namely, Amzad, Ramzan, Arshad, Smt. Shakeela, and
Iqbal Rain on 23.01.2013 under Sections 147, 148, 302
read with Section 34, 307 read with Section 34, 323 read
with Section 34, 504, and 506 I.P.C. Further, on
18.10.2013, charge under Section 149 I.P.C. was also
framed against the aforesaid accused persons. The
accused pleaded not guilty and claimed trial.
22. To substantiate its case, the prosecution examined
the informant, Md. Saeed alias Kaju (PW-1), Md. Saif
alias Shalu (PW-2) and Smt. Najma (PW-13), as
witnesses of fact. Additionally, the prosecution examined
Dr. Ashok Kumar Upadhyay (PW-3), Dr. Satish Chandra
Singh (PW-4), Dr. Vinay Kumar Sharma (PW-5), Dr. R.P.
Singh (PW-6), Sub-Inspector Narendra Kumar Rai
(PW-7), Sub-Inspector Mithilesh Kumar Mishra (PW-8),
Dr. T.N. Verma (PW-9), Dr. Sunil Kumar Shah (PW-10),
Dr. Virendra Kumar Singh (PW-11) and Dr. Nirmal Kumar
Jain (PW-12) as formal witnesses. In addition to the
aforesaid oral evidence, the prosecution also relied upon
documentary evidence marked as Exhibits Ka-1 to Ka-48,
as well as material exhibits.
23. The learned Trial Court, after recording the
prosecution evidence, examined the accused persons
under Section 313 Cr.P.C. In their statements recorded
under Section 313 Cr.P.C., the accused persons denied
the prosecution narrative as well as the evidence of the
prosecution witnesses, stating that they were falsely
implicated due to enmity and ill-will. Specifically, accused
Iqbal Rain submitted a written statement alleging that
Nasir Jamal, Advocate (son of Md. Zafar Khan),
harboured enmity against him and had previously lodged

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CAPT No. - 20 of 2022
two criminal cases (Case Crime No. 87/2010, under
Sections 147, 148, 323, 504, 506 IPC and Case Crime
No. 88/2010, under Sections 386, 504 IPC at P.S. Luxa,
District Varanasi) against him. He further stated that
Nasir Jamal, being an influential political person and
advocate, pursued the case at the police station on behalf
of the prosecution side and got him falsely implicated in
the present FIR out of enmity. The other accused persons
also denied the allegations, stating that a false story was
concocted to harass them out of enmity and ill-will.
However, no witness was examined on behalf of the
defense.
24. After hearing the submissions advanced by both the
prosecution and the defence and upon thorough
appreciation of the oral as well as documentary evidence
on record, the learned Trial Court found the prosecution
case proved beyond reasonable doubt against
the appellants, namely, Amzad, Ramzan and Arshad (in
Capital Criminal Appeal No. 20 of 2022) and against the
appellant, namely, Smt. Shakeela (in Criminal Appeal No.
8766 of 2022). Consequently, the Trial Court convicted
the appellants for the offences charged against them and,
accordingly, sentenced the convicts/appellants, namely,
Amzad, Ramzan, and Arshad, to death sentence for the
offence under Section 302 I.P.C., while the appellant,
Smt. Shakeela, was convicted and sentenced to undergo
life imprisonment for the offence under Section 302 I.P.C.
However, accused, Iqbal Rain was acquitted of all the
charges levelled against him by the Trial Court.
25. Aggrieved by the impugned judgment and order
dated 14.10.2022 passed by the learned Sessions Judge,

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CAPT No. - 20 of 2022
Varanasi, in Sessions Trial No. 597 of 2012, the
appellants Amzad, Ramzan, and Arshad have preferred
Capital Criminal Appeal No. 20 of 2022 before this Court,
while appellant Smt. Shakeela has filed Criminal Appeal
No. 8766 of 2022 before this Court. Additionally, the
learned Sessions Judge, Varanasi, has referred Capital
Reference No. 15 of 2022 to this Court for confirmation of
the death sentences awarded to appellants Amzad,
Ramzan and Arshad.
26. Learned counsel for the appellants submitted that
the appellants are absolutely innocent, have no concern
with the alleged crime, and have been falsely implicated
in the present case. It is next submitted that from a
perusal of the statement of the informant (PW-1), it is
clear that seven members of his family, including the
deceased persons and their associates, came to the
house of Amzad (appellant no. 1) after due consultation.
Initially, Amzad was alone when they arrived and a
scuffle broke out, following which other family members
came to the spot. The alleged incident took place in the
heat of passion, without any premeditation of mind,
hence, no prima facie offence under Section 302 IPC is
made out against the appellants. It is further submitted
that as per the statement of PW-1, the bamboo sticks
were already lying at the place of occurrence, which
clearly demonstrates that the appellants had no prior
intention or premeditation to commit the alleged offence.
Furthermore, although PW-1, PW-2, and PW-13 alleged
that the accused persons were armed with bamboo
sticks, axe, and spade (fawda), no incised or sharp-edged
wounds were found on the bodies of the deceased or

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CAPT No. - 20 of 2022
injured persons. In the absence of any sharp-cutting
weapon injuries, the offence under Section 148 IPC is not
made out, and the entire prosecution version regarding
the use of deadly weapons appears to be false and
concocted.
27. Learned counsel for the appellants also contended
that as per the medical evidence regarding injured Mohd.
Saif alias Shalu (PW-2), at the most, an offence under
Section 325 IPC is made out, as the injuries were opined
to be grievous in nature. Attention was also drawn to the
fact that co-accused Iqbal Rain, against whom identical
allegations were leveled by PW-1, PW-2 and PW-13, has
been acquitted by the Trial Court on the same set of
evidence. Moreover, nothing incriminating has been
recovered from the possession or at the instance of the
appellants. Additionally, one of the deceased, Chand
Rahimi, remained alive till 20.06.2012, yet no dying
declaration was recorded, which creates a serious doubt
in the prosecution story. Lastly, it is submitted that Smt.
Nazma (PW-13) was not named as an eye-witness in the
FIR, her statement appears to be tutored, and even the
Trial Court at page 21 of the impugned judgment
observed that her testimony cannot be fully relied upon.
Thus, the prosecution has failed to prove the guilt of the
appellants beyond reasonable doubt. 
28. In view of the aforesaid submissions, learned
counsel for the appellants submitted that the learned Trial
Court has committed a manifest error of law and fact in
failing to properly appreciate the material evidence on
record. The findings recorded by the Trial Court are
perverse, illegal, and contrary to the evidence available

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CAPT No. - 20 of 2022
on record. Therefore, the impugned judgment and order
of conviction dated 14.10.2022 passed by the Sessions
Judge, Varanasi is not sustainable in the eyes of law and
is liable to be set aside. Consequently, Capital Criminal
Appeal No. 20 of 2022 as well as Criminal Appeal No.
8766 of 2022 deserve to be allowed, the appellants are
entitled to be acquitted of all the charges, and the Capital
Reference No. 15 of 2022 sent by the Trial Court for
confirmation of the death sentence is liable to be
rejected. 
29. Per contra, learned A.G.A. for the State-respondent
has submitted that the appellants have been specifically
named in the written report (Exhibit Ka-1) as the accused
persons responsible for the commission of the alleged
crime. It was contended that the appellants surrounded
the informant, the deceased persons and the injured
prosecution witness and launched a continuous and
merciless assault upon them, specifically targeting their
heads. All the injuries found on the bodies of the
deceased persons as well as the injured witness were
confined to their heads. The fact that the appellants
specifically targeted the heads of the deceased persons
as well as the injured witness clearly demonstrates their
intention and common object to commit their murder.
30. It was further submitted that the head is an
extremely sensitive and vital part of the human body and
that repeatedly inflicting blows upon such a vital part is a
significant circumstance indicating the intention to cause
death. The location of the injuries, particularly their
concentration on the heads of all the deceased persons
and the injured witness, clearly establishes that the

17
CAPT No. - 20 of 2022
appellants had formed an unlawful assembly with the
common object of committing their murder and
eliminating anyone who came in their way. Learned
A.G.A. further submitted that four innocent, unarmed and
helpless persons were brutally murdered by the
appellants with the common object of grabbing the land
of the graveyard (kabristan), situated within the
compound of Baba Rahim Shah Mazar.
31. Learned A.G.A. further submitted that the
prosecution witnesses, namely, Md. Saeed alias Kaju
(PW-1), the informant, and Md. Saif alias Shalu (PW-2),
the injured witness, have fully supported the prosecution
case. Their ocular testimony finds corroboration from the
medical evidence available on record, particularly the
postmortem reports of the deceased persons and the
injury report of the injured witness (PW-2). Considering
the brutal manner in which the appellants allegedly
murdered four persons and injured PW-2, as well as the
facts and circumstances of the case and the evidence on
record, learned A.G.A. submitted that the Sessions
Judge, Varanasi, rightly convicted and sentenced Amzad,
Ramzan and Arshad to death and Smt. Shakeela, wife of
Amzad, to life imprisonment, vide judgment and order
dated 14.10.2022.
32. Thus, the Trial Court has properly appreciated the
evidence in accordance with law. The findings and
reasoning recorded by the Trial Court are based on
cogent and reliable evidence of the prosecution
witnesses, and are also in accordance with the legal
principles settled by law. There is no illegality or
perversity in the impugned judgment and order of

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CAPT No. - 20 of 2022
conviction and sentence dated 14.10.2022 passed by the
Sessions Judge, Varanasi. Therefore, Capital Criminal
Appeal No. 20 of 2022 and Criminal Appeal No. 8766 of
2022 deserve to be dismissed, and Capital Reference No.
15 of 2022, referred by the Trial Court for confirmation of
the death sentence, is liable to be confirmed.
33. In the light of the arguments and counter-
arguments advanced by learned counsel for the parties,
and upon perusal of the record of the case and the
written report (Exhibit Ka-1), it is clear that the incident
in the present case took place on 16.06.2012 at about
8:30 P.M. within the compound of Baba Rahim Shah
Mazar, Beniabagh. The First Information Report was
lodged against the appellants on the same date, i.e.,
16.06.2012, at about 11:55 P.M. In the said incident, four
persons sustained serious injuries at the hands of the
appellants and were immediately taken to different
nearby hospitals to save their lives. The informant, Md.
Saeed alias Kaju (PW-1), as well as the injured witness,
Md. Saif alias Shalu (PW-2), also sustained injuries in the
incident. Out of the four injured persons, three
succumbed to their injuries on the same night, i.e.,
16.06.2012, while the fourth succumbed to his injuries on
20.06.2012.
34. From a perusal of the record, it transpires that
deceased Kamil, who was a sewadar at Baba Rahim Shah
Mazar and used to clean the Mazar, belonged to a
different family, whereas the other three deceased
persons belonged to the informant's family. Therefore, it
was quite natural and consistent with normal human
conduct for the family members and relatives of the

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CAPT No. - 20 of 2022
injured persons to first prioritize saving the lives of their
injured loved ones by taking them to the hospital in the
hope of their recovery. It is evident from the record that
after admitting the injured persons to the hospital, the
informant (PW-1) lodged the written report (Exhibit Ka-1)
through his brother, Salim alias Pappu, to Police Station
Chowk, District Varanasi. Hence, we find that there was
no inordinate delay in lodging the First Information
Report at the concerned police station.
35. From a perusal of the record, the oral testimony of
the prosecution witnesses of fact and the evidence of the
Investigating Officer, it is clearly established that the
place of occurrence, namely, the compound of Baba
Rahim Shah Mazar, situated in Beniabagh Mohalla, is
located within the city. Residential houses are situated on
all four sides, i.e., East, West, North and South, making it
a densely populated locality. It is quite natural that the
place of occurrence being situated within the city of
Varanasi, electric poles are installed along the roads as
well as within the compound of Baba Rahim Shah Mazar.
A graveyard (kabristan) is also situated within the
compound, where the dead bodies of Muslim men and
women are buried. Therefore, it is natural that electric
poles and bulbs would be installed within the compound
of Baba Rahim Shah Mazar to facilitate the performance
of religious rituals by men and women visiting the Mazar
and to provide sufficient light in the graveyard for
carrying out burial ceremonies even during night-time.
This fact finds corroboration from the site plan (Exhibit
Ka-11) prepared by the Investigating Officer, Mithilesh
Kumar Mishra (PW-8). In the said site plan, the

20
CAPT No. - 20 of 2022
Investigating Officer has shown the petromax lamps as
burning and illuminating the place of occurrence, which
have been marked with the letter 'L'. A perusal of the site
plan further reveals that petromax lamps were
illuminating the area at more than one place.
36. It is also noteworthy that the houses of the
informant's family and the accused persons are situated
close to each other. The appellants were well acquainted
with the informant and his family members. Moreover, it
is a matter of common human experience that
neighbours and persons who are well acquainted with
each other can easily recognize one another even in dim
light or when their faces are not clearly visible, by their
voices, manner of speaking, body posture and gestures.
In view of the aforesaid facts and circumstances, it is
established that sufficient light was available at the place
of occurrence at the time of the incident, which took
place at about 8:30 P.M. on 16.06.2012. Hence, we are of
the considered opinion that there was sufficient
illumination at the place of occurrence, enabling the
prosecution witnesses to identify the appellants correctly
while they were committing the crime.
37. The prosecution has examined the informant, Md.
Saeed alias Kaju (PW-1), as an eyewitness to the
incident. We have perused the entire testimony of the
informant (PW-1). A perusal of his evidence reveals that
his elder brother, Md. Shafeeq alias Raju, who died in the
incident, was the gaddi-nasheen (head) of Baba Rahim
Shah Mazar, Beniabagh. He was also responsible for the
maintenance of the Mazar and the graveyard (kabristan)
situated within its compound. Appellant Amzad was

21
CAPT No. - 20 of 2022
engaged in the work of digging graves for the burial of
deceased persons. The entire family of the informant was
related by blood and shared close familial ties with the
deceased Md. Shafeeq alias Raju, the gaddi-nasheen of
the Mazar. Except for the acquitted accused, Iqbal Rain,
all the other appellants, including Smt. Shakeela, belong
to the family of appellant Amzad.
38. The testimony of the informant (PW-1) further
reveals that there was a dispute between the informant's
side and appellant Amzad concerning the land of the
graveyard (kabristan). Appellant Amzad and his sons had
allegedly abused the female members of the deceased
Shafeeq's family, as well as the informant, using vulgar
and indecent language. It is also an admitted fact that all
the members of the informant's family were residing
together in a joint household. It further emerges from the
evidence that, upon receiving information that appellant
Amzad, along with his sons, had come to the informant's
house and was hurling vulgar and indecent abuses at the
female members of the family, the informant and all the
deceased persons, except deceased Kamil, confronted
appellant Amzad and questioned him as to why he and
his sons were abusing the female members of their
family. According to the testimony of this witness, when
the informant's side questioned appellant Amzad about
his conduct, he became infuriated, once again started
hurling vulgar abuses and threatened to kill all the
members of the informant's side. 
39. The appellants took green (kaccha) bamboo sticks,
which were lying at the graveyard (kabristan) and are
normally used for placing the dead body inside the grave

22
CAPT No. - 20 of 2022
during the burial. The appellants picked up these green
(kaccha) bamboo sticks, measuring about two arms in
length, in their hands and started brutally assaulting the
deceased and injured persons, specifically targeting their
vital parts, particularly their heads. The appellants used
these green (kaccha) bamboo sticks as weapons of
murder, surrounded the members of the informant's side,
along with the deceased and injured persons, and began
beating them continuously and mercilessly on their
heads. The appellants stopped the assault only when all
the deceased and injured persons fell to the ground and
became unconscious.
40. From a perusal of the evidence of this witness, the
informant, Md. Saeed alias Kaju (PW-1), it is revealed
that although the informant (PW-1) could neither place
his injury report on record nor submit the same to the
Investigating Officer, his testimony reveals that, after the
brutal death of three members of his family, PW-1 was
left as the sole elder male member of the family. He
remained completely engaged in arranging transportation
and ensuring that the deceased and injured persons were
rushed to the hospital to secure immediate medical
assistance so that the lives of the injured persons could
be saved. In this state of utter chaos and urgency, he
could not collect his injury report from the hospital
concerned.
41. It is also a notable fact that when three members of
a family are killed in such a brutal manner, a surviving
member who is the elder of the family, such as the
informant (PW-1) in the present case, would naturally
become completely bewildered and shell-shocked. Under

23
CAPT No. - 20 of 2022
such extraordinary circumstances of grief and trauma, a
man like PW-1 could hardly be expected to remain
composed or be in the proper frame of mind to
meticulously decide what procedural steps ought to be
taken by him at that point in time. This was the main
reason, and it was also in accordance with human nature
and conduct that minor contradictions and variations
crept into the evidence of the informant, Md. Saeed alias
Kaju (PW-1), during his examination-in-chief as well as
during his lengthy cross-examination by the defence.
42. The argument advanced by the learned counsel for
the appellants that the informant (PW-1) is not an
eyewitness to the incident merely because he could not
place his injury report on record or because of certain
contradictions and variations in his testimony does not
find any support and corroboration in view of the reasons
and detailed discussions recorded hereinabove.
43. From a perusal of the cross-examination of PW-1,
we find that the defence cross-examined this witness at
great length, repeatedly putting questions to PW-1 on the
same points with the deliberate design of confusing and
bewildering him, thereby eliciting inconsistent answers so
that the defence could take advantage of such minor
discrepancies. Hence, we reject the argument of the
learned counsel for the appellants in this regard and hold
that the informant, Md. Saeed alias Kaju (PW-1), is a fully
reliable eyewitness to the incident. Whatever minor
contradictions and variations appear in his cross-
examination are solely attributable to the tactics of the
defence in repeatedly questioning the witness on the
same points to elicit contradictory responses.

24
CAPT No. - 20 of 2022
44. It is also a settled principle of law that the present
case is one of direct evidence, resting upon the ocular
testimony of eyewitnesses, namely, PW-1 and PW-2.
Motive for the commission of a crime assumes
significance primarily in cases resting entirely on
circumstantial evidence. However, the case at hand is not
based on circumstantial evidence, rather, it is a case of
direct evidence in which the informant (PW-1) and the
injured witness (PW-2) were present at the scene of
occurrence along with their deceased family members
when the incident occurred. Therefore, under such
circumstances, the question of motive loses its
significance.
45. Consequently, we are of the considered opinion that
the appellants are not entitled to any benefit whatsoever
on the ground of minor variations and contradictions
appearing in the cross-examination of the informant, Md.
Saeed alias Kaju (PW-1). It is quite natural that when a
witness, such as the informant (PW-1) in the present
case, is subjected to a barrage of repetitive questions on
identical points, slight variations in expression are bound
to occur. The informant, Md. Saeed alias Kaju (PW-1),
has also stated in his cross-examination that he could not
state certain facts to the Investigating Officer because his
mind was not working properly at that time.
46. From a perusal of the evidence of PW-1, this fact is
clearly revealed that during his cross-examination, the
deposition had to be deferred for other dates due to the
unfit mental condition and illness of this witness. Further,
it is revealed that the cross-examination of this witness
was first recorded on 10.07.2013, whereupon the defence

25
CAPT No. - 20 of 2022
cross-examined this witness only briefly in four lines, and
the cross-examination was deferred to 12.07.2013.
Thereafter, on 12.07.2013, 01.08.2013, 09.09.2013,
31.01.2014, 02.12.2014, 27.11.2014, 09.02.2015,
25.02.2016, 27.04.2016, 01.06.2016, and 07.09.2016,
spanning across 13 dates over a prolonged period of
approximately four years starting from 10.07.2013 to
07.09.2016, the defence subjected PW-1 to a very
lengthy, grueling, and exhaustive cross-examination. Due
to this exceptionally long duration and repetitive
questioning over years, minor contradictions and
variations have naturally crept into the deposition of this
witness. However, such variations and contradictions
cannot give any benefit to the appellants in any manner.
Upon due consideration of the aforesaid discussions and
the entire evidence on record, we find no force in any of
the arguments advanced by the learned counsel for the
appellants in this regard.
47. The next star witness adduced by the prosecution is
Md. Saif alias Shalu (PW-2). This witness is presently the
gadi-nasheen (head) of the Baba Rahim Shah Mazar,
following the death of Md. Shaeeq alias Raju in this
incident. This witness, Md. Saif alias Shalu (PW-2), had
also received grievous and fatal injuries to his head,
inflicted by the appellants. Therefore, this witness (PW-2)
is an injured eyewitness to the incident, hence, his
presence at the place of occurrence at the time of the
incident cannot be doubted on any ground whatsoever.
48. We have also gone through and perused the entire
evidence of this witness. From a perusal of the evidence
of this witness, it is revealed that the incident in the

26
CAPT No. - 20 of 2022
present case started over the issue of appellant Amzad,
accompanied with his sons, abusing the female members
of the informant's family in vulgar and indecent language.
When the members of the informant's side tried to
question why appellant Amzad, along with his sons, was
abusing the female members of their family, appellant
Amzad became infuriated, began hurling abuses, and
threatened to kill them all. The appellants surrounded the
members of the informant's side, picked up green
(kaccha) bamboo sticks in their hands, which were lying
in the graveyard (kabristan) and were normally used for
placing inside the grave during the burial of dead bodies,
and began assaulting them continuously and brutally,
specifically targeting the heads of the deceased as well as
the injured persons. The appellants left the place of
occurrence only after all the injured persons had fallen
unconscious.
49. According to this witness, after the incident, all the
injured persons were taken to different hospitals.
However, Md. Shafeeq alias Raju and Kamil died at Kabir
Chaura Hospital, while Md. Shakeel alias Jau was taken to
BHU Hospital, where he succumbed to his injuries, and
Chand was taken to Alaknanda Hospital, where he passed
away after a few days. This witness (PW-2) had also
received grievous and fatal injuries to his head and other
parts of his body, became unconscious, and was taken to
Singh Medical Hospital for treatment.
50. The defence has also cross-examined this witness
(PW-2) at great length and in a grueling manner. Due to
this reason, many minor contradictions and variations
have also crept into the evidence of this witness.

27
CAPT No. - 20 of 2022
However, those minor variations and contradictions have
no relevance and do not cast any adverse shadow against
the deposition of this witness or against the prosecution
story.
51. This fact is also proved from the statement of this
witness during cross-examination that in this incident, no
unknown persons were involved. This statement as
deposed by this witness indicates and proves the fact that
the accused appellants who committed this crime were
well-known persons to the informant's side and were
familiar and acquainted with them. This witness has also
received grievous injuries on his head and other vital
parts of his body. Dr. Virendra Kumar Singh (PW-11)
prepared the medico-legal injury report, marked as
Exhibit Ka-48, in respect of this witness and found the
following injuries: 
"Injury No. 1: A lacerated wound with swelling,
measuring 6 cm × 4 cm, on the left side of the head,
situated 3 cm above the left ear, with active bleeding. An
X-ray and a CT scan of the head were advised.
Injury No. 2: Contused swelling measuring 3 cm × 3 cm
over the left eye. The injured was referred to an eye
specialist for further evaluation.
Injury No. 3: A red contusion measuring 6 cm × 4 cm on
the left side of the chest, situated 8 cm below the nipple.
An X-ray examination was advised."
52. Thereafter, Dr. T.N. Verma (PW-9) of Singh Medical
Research Centre, Varanasi, provided medical treatment
and assistance to this witness, who found severe injuries
on the head and left eye of PW-2, and prepared
treatment documents marked as Exhibit Ka-36 and
Exhibit Ka-37. Dr. Sunil Kumar Shah (PW-10) of Shah
Maternity and Eye Hospital also provided emergency
treatment to the injured Shalu (PW-2). According to Dr.

28
CAPT No. - 20 of 2022
Sunil Kumar Shah (PW-10), the injured Shalu (PW-2) had
sustained a head injury and lost vision in his left eye. He
found a fracture during X-ray examination of the bones
surrounding the left eye of PW-2. A surgery was also
conducted for the treatment of Shalu (PW-2). Thereafter,
Dr. Sunil Kumar Shah (PW-10) proved the relevant
medical reports of Shalu marked as Exhibit Ka-46, as well
as the report of Arihant Diagnostic Centre marked as
Exhibit Ka-47.
53. Dr. Nirmal Kumar Jain of Arihant Diagnostic Centre,
Maruaganj, Varanasi, conducted a CT scan of the injured
Shalu (PW-2), prepared a report on the basis of the CT
scan films, and proved the CT scan report as Exhibit
Ka-47. Thus, the treatment of the injured Md. Saif alias
Shalu (PW-2) was conducted at several hospitals due to
the fatal and grievous injuries caused to his head and left
eye. Md. Saif alias Shalu (PW-2) survived the injuries
caused by the appellants only after receiving treatment at
several hospitals in Varanasi.
54. Accordingly, from the facts mentioned above and in
view of our detailed discussion, it is clearly proved
beyond all reasonable doubt that the injured Md. Saif
alias Shalu (PW-2) was present at the place of occurrence
when the incident occurred. He had seen with his own
eyes the commission of the crime by the accused
appellants and had also sustained serious injuries during
the commission of the crime by the appellants. For this
reason, the evidence of the injured witness, Md. Saif alias
Shalu (PW-2), is found to be wholly reliable and
trustworthy. Apart from that, when we appreciate the
evidence of this witness (PW-2) and read it in conjunction

29
CAPT No. - 20 of 2022
with the evidence of the informant, Md. Saeed alias Kaju
(PW-1), we find that a conjoint reading of the depositions
of PW-1 and PW-2 mutually corroborates and supports
each other.
55. Further, the ocular testimony of the eye-witnesses,
namely the informant, Md. Saeed alias Kaju (PW-1), and
the injured witness, Md. Saif alias Shalu (PW-2), also
finds firm corroboration and support from the medical
evidence adduced by Dr. Ashok Kumar Upadhyay (PW-3),
who prepared the postmortem report of the deceased Md.
Shafeeq (Exhibit Ka-2); Dr. Satish Chandra Singh (PW-4),
who prepared the postmortem report of the deceased
Kamil (Exhibit Ka-3) as well as the postmortem report of
the deceased Md. Shakeel alias Jau (Exhibit Ka-4); and
Dr. Vinay Kumar Sharma (PW-5), who prepared the
postmortem report of the deceased Chand. The oral
testimony is further corroborated by the evidence of Dr.
R.P. Singh (PW-6), Consultant Neurosurgeon at
Alaknanda Hospital, Varanasi, who had treated the
deceased Chand at the said hospital. Thus, the oral
testimony of the informant (PW-1) and the injured
witness (PW-2) stands fully supported and corroborated
by the medical evidence on record, while also mutually
corroborating and reinforcing each other. 
56. It is the written submission of the appellants, as
stated in paragraph 'F' of the grounds taken in the memo
of appeal that “Because believing upon the prosecution
story, if it is to be relied upon for the sake of the
argument, the alleged incident is said to have taken place
without pre-meditation of mind and in the heat of the
events, hence no prima facie offence under section 302

30
CAPT No. - 20 of 2022
IPC is made out against the appellants”. By the aforesaid
submissions, the appellants have admitted the
occurrence of the incident as well as their presence at the
place of occurrence. So far as the aforesaid contention
that the incident took place without premeditation and in
the heat of the events is concerned, we find that
Exception-4 to Section 300 IPC provides as follows:
"Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or
unusual manner." 
57. The explanation of Exception-4 also provides that it is
immaterial in such cases as to which party offers the
provocation or commits the first assault. Thus, for the
applicability of Exception 4 to Section 300 IPC, it is clear
that culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel, provided that the
offender has not taken undue advantage or acted in a
cruel or unusual manner. In order to bring a case under
Exception 4 to Section 300 IPC, the evidence must show
that the accused, without any premeditation and in the
heat of passion and without having taken any undue
advantage, had not acted in a cruel and unusual manner.
58. In the light of the aforesaid legal provisions
contained in Exception 4 to Section 300 IPC, from a
perusal of the post-mortem report (Exhibit Ka-2) of the
deceased Md. Shafeeq, prepared by Dr. Ashok Kumar
Upadhyay (PW-3), we find that as many as four injuries
were found on the body of the deceased. All the four
injuries were confined to the head, face, shoulder and
eye regions. Depressed and multiple fractures of the

31
CAPT No. - 20 of 2022
frontal bone of the skull and the right jaw bone were
found. The frontal and temporal bones on both sides, the
parietal bone, the occipital bone and the right jaw bone
were found fractured. The right eye was also found
crushed. Similarly, from a perusal of the postmortem
report (Exhibit Ka-3) of the deceased Kamil, prepared by
Dr. Satish Chandra Singh (PW-4), we find that four
injuries were found on his body, out of which three were
located on the head. The occipital bone of the deceased
Kamil was also found fractured. Further, from a perusal of
the postmortem report (Exhibit Ka-4) of the deceased
Md. Shakeel alias Jau, also prepared by Dr. Satish
Chandra Singh (PW-4), we find that a total of six injuries
were found on his body. All the six injuries were confined
to the head, which is an extremely sensitive and vital
part of the human body. The lower jaw bone, left
temporal bone, parietal bone and the middle and frontal
cranial fossae on the left side were found fractured.
Likewise, from a perusal of the postmortem report
(Exhibit Ka-5) of the deceased Chand alias Raju,
prepared by Dr. Vinay Kumar Sharma (PW-5), we find
that six injuries were found on his body. All the six
injuries were confined to the head, nose, chin, neck and
forehead. Furthermore, the frontal, temporal and parietal
bones on both sides of the skull, as well as the nasal
bone and the jaw bone, were found fractured.
59. From a perusal of the aforesaid postmortem reports
(Exhibit Ka-2 to Exhibit Ka-5), it is amply clear that the
appellants brutally, mercilessly, and continuously
assaulted the deceased, aiming exclusively at their
heads. More than one injury was caused by the

32
CAPT No. - 20 of 2022
appellants. This fact clearly shows and proves that the
appellants took undue advantage and acted in a very
cruel and unusual manner by assaulting the deceased
exclusively on their heads continuously, causing more
than one head injury, alongside fractures of the frontal,
parietal, temporal, and jaw bones of the deceased. Apart
from that, the injury report and medical documents of the
injured witness, Md. Saif alias Shalu (PW-2), which have
been proved by Dr. T.N. Verma (PW-9), Dr. Sunil Kumar
Shah (PW-10), Dr. Virendra Kumar Singh (PW-11), and
Dr. Nirmal Kumar Jain (PW-12) who treated and proved
the medical documents of the injured witness, establish
that the injured witness (PW-2) also received grievous
injuries on his head, coupled with a fracture of the left
orbital bone and the accumulation of blood, which caused
the eye to protrude and resulted in the loss of his vision.
60. Thus, the aforesaid facts, as revealed from the
postmortem reports of the deceased and the injury report
of the injured witness, Md. Saif alias Shalu (PW-2), prove
beyond all reasonable doubt that the appellants had the
intention to kill the deceased. With this intention, as well
as in furtherance of the common object of the unlawful
assembly formed by them with pre-meditation at the
place of occurrence, all the appellants, sharing the
common object to kill all the members of the informant's
side, began to assault them mercilessly, brutally, and
continuously, aiming exclusively at the heads of the
deceased and the injured witness, Md. Saif alias Shalu
(PW-2), so that their death under any circumstances
could be made sure and certain.

33
CAPT No. - 20 of 2022
61. In such view of the matter, the number of injuries on
the heads of the deceased and the injured witness, Md.
Saif alias Shalu (PW-2), coupled with the site of the
injuries which is confined solely to the heads of the
victims, clearly and unequivocally demonstrates that the
appellants, as members of an unlawful assembly formed
by them, shared a common object to kill all the members
of the informant's side, and they successfully achieved
the common object of causing the death of the deceased.
Therefore, in view of the aforesaid facts and
circumstances, the appellants cannot be granted any
benefit of Exception 4 to Section 300 IPC, as they are not
eligible or entitled to any benefit thereunder.
62. At this stage, we have perused the judgments of the
Hon'ble Supreme Court relied upon by the learned
counsel for the appellants in the cases of Sunny alias
Santosh Dharmu Bhosale v. State of Maharashtra, (2024)
11 SCR 1440, and Jugat Ram v. State of Chhattisgarh,
AIR 2020 SC 4350.
63. From a perusal of Sunny alias Santosh Dharmu
Bhosale (supra) and Jugat Ram (supra), it appears that,
in those cases, only one person was assaulted with a lathi
and subsequently he succumbed to the injuries sustained.
Having regard to the facts and circumstances of that
cases, the Hon'ble Supreme Court altered the conviction
of the appellants therein from Section 302 IPC to Section
304 IPC. However, in the present case, we have
discussed the postmortem reports of four deceased
persons and the testimony of the injured witness, Md.
Saif alias Shalu (PW-2), which reveal that multiple
injuries were inflicted upon the deceased persons as well

34
CAPT No. - 20 of 2022
as the injured witness, including injuries on vital parts of
their bodies. In the present case, four persons lost their
lives, while one other person, namely, Md. Saif alias
Shalu (PW-2), sustained serious injuries. Thus, the facts
and circumstances of the present case are entirely
distinct from those involved in the judgments relied upon
by the learned counsel for the appellants. Therefore, the
present case is clearly distinguishable from the
precedents cited. Consequently, in view of the discussion
made hereinabove, the appellants are not entitled to any
benefit from the aforesaid judgments of the Hon'ble
Supreme Court relied upon by the learned counsel for the
appellants.
64. Hon'ble Supreme Court in the case of Virsa Singh v.
State of Punjab, AIR 1958 SC 465 has held:
" The question is not whether the prisoner intended to
inflict a serious injury or a trivial one but whether he
intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the
circumstances justify such an inference, then, of course,
the intent that the section requires is not proved. But if
there is nothing beyond the injury and the fact that the
appellant inflicted it, the only possible inference is that he
intended to inflict it. Whether he knew of its seriousness,
so far as the intention is concerned, is neither here nor
there. The question, or to inflict an injury of a particular
degree of seriousness, is not whether he intended to kill,
he intended to inflict the injury in question; and once the
existence of the injury is proved the intention to cause it
will be presumed unless the evidence or the
circumstances warrant an opposite
conclusion…………………………………..The test laid down in
Virsa Singh's case for the applicability of clause Thirdly is
now ingrained in our legal system and has become part of
the rule of law. Under clause Thirdly of Section 300 of the
Code, culpable homicide is murder if both the following
conditions are satisfied: (a) that the act which causes
death is done with the intention of causing a bodily
injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death.
It must be proved that there was an intention to inflict
that particular bodily injury which, in the ordinary course
of nature, was sufficient to cause death, viz. that the

35
CAPT No. - 20 of 2022
injury found to be present was the injury that was
intended to be inflicted."
65. Hon'ble Supreme Court in the case of Suresh
Sitaram Surve v. State of Maharashtra, (2002) 10 SCC 28
has held:
"The evidence of the injured eyewitnesses cannot be
discarded in toto on the ground of inimical disposition
towards the accused or the improbability of narrating the
details of actual attack. True, their evidence has to be
scrutinised with caution taking into account the factum of
previous enmity and the tendency to exaggerate and to
implicate as many as possible. But on a perusal of the
evidence tested in the light of the broad probabilities, the
High Court was justified in reaching the conclusion that
the prosecution witnesses are natural witnesses and they
could not have concocted the case against the accused
without any basis. The fact that the FIR was lodged
almost immediately after the occurrence naming the
appellant as the main assailant lends positive assurance
to the credibility of the prosecution case as unfolded by
the eyewitnesses, most of whom were injured. Both the
trial court and the High Court found that there was
sufficient light emitted by the tubelight in front of the
house to identify the accused who were known persons.
The fact that the incident occurred outside and inside the
house cannot be doubted as there was blood both at the
steps where the dead body lay and inside the house and
weapons stained with human blood were found lying in
the adjoining narrow lane and the injuries were found on
almost all the inmates of the house. It is highly unlikely
that within a short time of the occurrence the prosecution
party could have come forward with a false version
implicating the persons who were not at all seen, while
leaving out the real culprits. The eyewitnesses' account of
the attack by the appellant is quite consistent. Though
certain doubts are sought to be created as to the genesis
of the incident and the manner of attack, but the
prosecution case is not belied on account of such factors."
66. Thus, in light of the law laid down by the Hon'ble
Supreme Court in Virsa Singh (supra) and Suresh
Sitaram Surve (supra), we find that the testimony of the
informant, Md. Saeed alias Kaju (PW-1), and the injured
witness, Md. Saif alias Shalu (PW-2), is wholly reliable, as
their statements find full corroboration from the medical
evidence. The common object of the appellants to
annihilate and kill all the members of the informant's side

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CAPT No. - 20 of 2022
is clearly established from the postmortem reports of the
deceased and the injury report and medical documents of
the injured witness, Md. Saif alias Shalu (PW-2). In view
of the above discussion and the settled principles
enunciated by the Hon'ble Supreme Court in the
aforesaid precedents, we find no force in the arguments
advanced by the learned counsel for the appellants in this
regard.
67. The appellants also cannot be extended the benefit
of right of private defence in the present case, since the
deceased and the injured eyewitness, Md. Saif alias Shalu
(PW-2), along with the informant, Md. Saeed alias Kaju
(PW-1), were completely unarmed and helpless, carrying
no weapons, sticks, or other objects in their hands.
Furthermore, the appellants have failed to bring on
record any injury report to establish that they sustained
any injuries whatsoever during the incident. Therefore, in
the facts and circumstances of the present case, no
ground for private defence is made out in favour of the
appellants.
68. As regards the argument advanced by the appellants
to the effect that the informant, Md. Saeed alias Kaju
(PW-1), and the injured witness, Md. Saif alias Shalu
(PW-2), stated that axes, spades, and other weapons
were also used by the appellants in the incident, yet no
incised wound was found on the bodies of the deceased
or the injured witness, and further that on the basis of
this very prosecution evidence, the co-accused Iqbal Rain
has already been acquitted of all charges by the Trial
Court, we find from a perusal of the postmortem reports
and the injury report of the injured witness (PW-2) that

37
CAPT No. - 20 of 2022
no incised wounds were indeed present. However, merely
on the ground that no incised wound was detected on the
bodies of the victims, the entire and trustworthy
testimony of the eyewitnesses, namely Md. Saeed alias
Kaju (PW-1) and Md. Saif alias Shalu (PW-2), cannot be
rejected in toto.
69. From a perusal of the record, the evidence of the
prosecution witnesses, and the findings and reasoning
recorded by the Court of Session, we find that the Trial
Court, acquitted the accused Iqbal Rain of all the charges
leveled against him solely on the ground that presence of
accused Iqbal Rain on the place of occurrence was found
doubtful by the Trial Court. However, on the basis of the
same prosecution evidence, the entire testimony of the
eyewitnesses, namely, the informant, Md. Saeed alias
Kaju (PW-1), and the injured witness, Md. Saif alias Shalu
(PW-2), cannot be rejected or disbelieved in toto,
particularly in light of the three-judge Bench decisions of
the Hon'ble Supreme Court in Gurcharan Singh and
Another v. State of Punjab, (1955) 2 SCC 424 and Nisar
Ali v. State of Uttar Pradesh, (1957) 1 SCC 350.
70. In Gurcharan Singh (supra), the Hon'ble Supreme
Court, while dealing with the same issue, held in
paragraph-9 as follows:-
"9. The case in hand is similar to the case reported as
Dalip Singh v. State of Punjab, (1953) 2 SCC 36, insofar
as it was found in that case, as we are inclined to hold in
this case, that the acquittal of the other two accused by
the High Court may not have been entirely correct.
Reference to that reported case is only by way of
illustration and not by way of an appeal to precedent,
because on facts no two cases can be similar. Each case
has its own peculiar facts and it is therefore always risky
to appeal to precedents on questions of fact. The highest
that can be or has been said on behalf of the appellants in
this case is that two of the four accused have been

38
CAPT No. - 20 of 2022
acquitted, though the evidence against them, so far as
the direct testimony went, was the same as against the
appellants also; but it does not follow as a necessary
corollary that, because the other two accused have been
acquitted by the High Court the appellant also must be
similarly acquitted."
71. Similarly, the Hon'ble Supreme Court, in Nisar Ali
(Supra), has held on the same point in paragraph nos. 8
and 9 as follows:-
"8. It was next contended that the witnesses had falsely
implicated Qudrat Ullah and because of that the Court
should have rejected the testimony of these witnesses as
against the appellant also. The well-known maxim falsus
in uno falsus in omnibus was relied upon by the appellant.
The argument raised was that because the witnesses who
had also deposed against Qudrat Ullah by saying that he
had handed over the knife to the appellant had not been
believed by the courts below as against him, the High
Court should not have accepted the evidence of these
witnesses to convict the appellant. This maxim has not
received general acceptance in different jurisdictions in
India, nor has this maxim come to occupy the status of a
rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases, the testimony may be
disregarded and not that it must be disregarded. One
American author has stated:
'... the maxim is in itself worthless;
first in point of validity ... and
secondly, in point of utility because it
merely tells the jury what they may do
in any event, not what they must do or
must not do, and therefore, it is a
superfluous form of words. It is also in
practice pernicious...'
9. The doctrine merely involves the questions of weight of
evidence which a court may apply in a given set of
circumstances, but it is not what may be called 'a
mandatory rule of evidence'."
72. Thus, in light of the legal principles laid down by the
Hon'ble Supreme Court in the aforementioned case laws
of three-Judge Benches, it is not necessary to reject the
evidence of witnesses whose testimony, in respect of
some accused persons, is found reliable, while in respect
of others, it is found unreliable.

39
CAPT No. - 20 of 2022
73. According to the law as enunciated by the Hon'ble
Supreme Court in case laws of this nature, the Court
should cautiously and carefully analyze and appreciate
the evidence of prosecution witnesses. If the evidence of
prosecution witnesses is found reliable and trustworthy in
respect of some accused persons, but unreliable in
respect of other accused persons, the evidence shall not
be rejected outright. Meaning thereby, the part and
portion of evidence of the prosecution witnesses that is
found trustworthy and reliable shall be read into
evidence. In light of such reliable and trustworthy
prosecution evidence, accused persons can be legally
held guilty and convicted. If, upon appreciation of the
prosecution evidence, there is no trustworthiness or
creditworthiness regarding the evidence of the
prosecution witnesses in respect of other co-accused
persons, then, on the basis of the same evidence, those
accused persons could be legally acquitted. Thus, it is
merely a rule of caution and not a mandatory rule of
evidence, in light of the legal principles enunciated by the
Hon'ble Supreme Court in the case laws referred above.
74. Thus, in light of the aforesaid discussion and the
settled legal principles enunciated by the Hon'ble
Supreme Court in the aforementioned precedents, we
find no force in the arguments advanced by the learned
counsel for the appellants in this regard. From a
meticulous appreciation of the entire evidence on record,
both oral and documentary, we find that the testimonies
of the informant, Md. Saeed alias Kaju (PW-1), and the
injured witness, Md. Saif alias Shalu (PW-2), are wholly
trustworthy, credible, and reliable, which conclusively

40
CAPT No. - 20 of 2022
prove the prosecution case beyond all reasonable doubt
against the appellants.
75. Now we consider the point as to whether the capital
punishment awarded by the learned Sessions Judge,
Varanasi, against the appellants, Amzad, Arshad and
Ramzan, is based on evidence and in accordance with the
settled principles enunciated by the Hon'ble Supreme
Court from time to time, and whether this case falls
within the category of the rarest of rare cases. To
determine this aspect, we have gone through the
landmark judgments of the Hon'ble Supreme Court in
Jagmohan Singh v. State of U.P., (1973) 1 SCC 20,
Bachan Singh v. State of Punjab, AIR 1980 SC 898,
Machhi Singh v. State of Punjab, (1983) 3 SCC 470,
Swami Shraddananda v. State of Karnataka, (2008) 13
SCC 767, and Santosh Kumar Satibhushan Bariyar v.
State of Maharashtra, (2009) 6 SCC 498.
76. We have also perused the judgments of the Hon'ble
Supreme Court relied upon by the learned counsel for the
appellants in the cases of Chhannu Lal Verma v. State of
Chhattisgarh, AIR 2019 SC 243; Machhi Singh and Others
v. State of Punjab, (1983) 3 SCC 470; Mohd. Firoz v.
State of Madhya Pradesh, AIR 2022 SC 1967; and Byluru
Thippaiah @ Byaluru Thippaiah @ Nayakara Thippaiah v.
State of Karnataka, 2025 SCC OnLine SC 1455.
77. From a perusal of the above-mentioned
pronouncements of the Hon'ble Supreme Court, including
the judgments relied upon by learned counsel for the
appellants, we find that capital punishment under Section
302 IPC should be awarded only in the rarest of rare
cases, and ordinarily, imprisonment for life is the rule

41
CAPT No. - 20 of 2022
while the death sentence is an exception, being a proper
and sufficient punishment to serve the ends of the
criminal justice delivery system. Before awarding capital
punishment to any convict, the Court is duty-bound to
weigh and draw up a balance sheet / chart of aggravating
and mitigating circumstances while strictly applying the
doctrine of the rarest of rare cases.
78. However, when we have perused and gone through
the reasoning and findings of the learned Sessions Judge,
Varanasi, we find that the Sessions Judge has not
prepared any balance sheet or chart of aggravating and
mitigating circumstances based on the evidence available
on record for categorising the present case in the
category of the rarest of rare cases. Since it is a settled
proposition of law that life imprisonment is the rule and
the death sentence is an exception, a perusal of the
findings and reasoning given by the learned Sessions
Judge reveals that merely by referring to the injuries of
the deceased persons in their postmortem reports and
noting that the appellants have killed four persons, the
Sessions Judge concluded that this case falls within the
category of the rarest of rare cases and awarded the
extreme penalty of capital punishment to the appellants,
Amzad, Ramzan and Arshad.
79. From a perusal of the record and the evidence of the
prosecution witnesses, we find that in this incident, four
green (kaccha) bamboo sticks, measuring two hands in
length, were used by the appellants as the weapon of
murder in the commission of the alleged crime. Thus, we
find that the appellants did not use any lethal weapon,
any firearm, or any deadly sharp-edged weapon such as

42
CAPT No. - 20 of 2022
a sword, farsa, or axe for the commission of the alleged
crime. The appellants only used green (kaccha) bamboo
sticks, which were lying on the ground of the graveyard
(kabristan).
80. From a perusal of the record of the present case, we
also find that there is no evidence of any nature which
could show that the appellants are habitual and hard-core
criminals, or that they are a menace to society at large.
There is no documentary evidence regarding any criminal
history of the appellants to establish that they are
habitual offenders in the habit of committing heinous
offences like murder. Thus, the prosecution was
unsuccessful and unable to produce any documentary
evidence in the Trial Court to show and prove that the
appellants are hard-core criminals, professional hired
killers, dangerous, or a menace to society at large.
Capital punishment can be awarded in the rarest of rare
category only after preparing a chart or balance sheet of
aggravating and mitigating circumstances, and
particularly when the accused persons are found to be
hired killers and a grave danger or menace to society at
large.
81. However, the learned Sessions Judge, Varanasi,
without keeping in mind the aforesaid legal aspects and
contrary to the settled principles of law, has erroneously
categorized the present case under the category of the
rarest of rare cases and awarded the death sentence to
the appellants, Amzad, Arshad and Ramzan, for the
commission of the alleged crime. Hence, we are unable to
affirm the findings of the learned Trial Court recorded in
this regard on the point of sentence, by which the said

43
CAPT No. - 20 of 2022
appellants have been awarded the extreme penalty. In
other words, we are not in agreement with the finding of
the Trial Court sentencing the appellants to death.
82. Therefore, after a meticulous perusal of the entire
evidence on record, both oral as well as documentary,
and keeping in view the law enunciated by the Hon'ble
Supreme Court from time to time, we find that the case
at hand does not fall within the category of the rarest of
rare cases. We are of the considered opinion that in the
present case, sentencing the appellants to imprisonment
for life would serve the ends of justice far better than
awarding them capital punishment.
83. In view of the above facts and circumstances of the
case and the law laid down by the Hon'ble Supreme
Court, we are of the firm view that the death sentence
awarded to the appellants is neither proper nor judicious.
Instead, the appellants deserve to be sentenced to
imprisonment for life, which would best serve the ends of
justice and the interests of society.
84. Consequently, we set aside the findings and
reasoning given by the Trial Court awarding the death
sentence, and in place thereof, we sentence the
appellants, Amzad, Arshad and Ramzan, to imprisonment
for life for the offence under Section 302 IPC.
Accordingly, we modify and convert the punishment of
the appellants under Section 302 IPC from the death
sentence to imprisonment for life.
85. Thus, from a perusal of the entire evidence on
record, both oral and documentary, it stands established
that the appellants, Amzad, Arshad, and Ramzan (in

44
CAPT No. - 20 of 2022
Capital Criminal Appeal No. 20 of 2022), along with the
appellant Smt. Shakeela, wife of Amzad (in Criminal
Appeal No. 8766 of 2022), formed an unlawful assembly
on 16.06.2012 at about 8:30 PM at the graveyard
(kabristan) situated within the compound of Baba Rahim
Shah Mazar. In execution of their common object and
with intention to kill the family members of the
informant's side, the said appellants, by a continuous and
brutal assault targeted exclusively at the heads of the
victims, caused the death of four persons and grievously
injured, Md. Saif alias Shalu (PW-2).
86. It is also a notable fact that three of the deceased
belonged to the family of the informant, meaning thereby
that informant (PW-1) tragically lost three of his family
members in this incident. At the time of the occurrence,
the deceased Kamil, who was a sewadar performing
cleaning duties at the Mazar, intervened and rushed to
rescue the members of the informant's side. The
appellants brutally assaulted Kamil on his head as well,
inflicted multiple severe injuries, which resulted in his
succumbing to them within a few hours at the hospital.
Thus, all the appellants, Amzad, Arshad and Ramzan (in
Capital Criminal Appeal No. 20 of 2022), and Smt.
Shakeela (in Criminal Appeal No. 8766 of 2022), with a
common object, common intention and knowledge,
committed this brutal crime in which four persons lost
their lives.
87. The law is well settled that membership of an
unlawful assembly is sufficient to hold such participating
member vicariously liable. For fastening liability on the
members of an unlawful assembly under Section 149 IPC,

45
CAPT No. - 20 of 2022
it is not necessary that every member of the unlawful
assembly should commit an overt act in prosecution of
the common object of the assembly. Mere knowledge of
the likelihood of the commission of such an offence by
the members of the assembly is sufficient to hold any
member of an unlawful assembly guilty of the
commission of the crime. Once membership of an
unlawful assembly is established, it is not incumbent
upon the prosecution to establish whether any specific
overt act has been assigned to any accused. Mere
membership of the unlawful assembly is sufficient, and
every member is vicariously liable for the acts done by
others, either in prosecution of the common object of the
unlawful assembly or such as the members of the
unlawful assembly knew were likely to be committed.
88. Therefore, in the light of the above discussions, we
reject the Reference No. 15 of 2022 referred by the Trial
Court for confirmation of the death sentence awarded to
the appellants, namely, Amzad, Arshad, and Ramzan.
89. Accordingly, we alter and commute the death
sentence of appellants, namely, Amzad, Arshad and
Ramzan from capital punishment to life imprisonment
under Section 302 IPC, while affirming the findings and
reasoning recorded by the Trial Court in respect of other
offences, which shall remain unchanged. Thus, we partly
allow the Capital Criminal Appeal No. 20 of 2022 (Amzad
and 2 Others v. State of U.P.). So far as Criminal Appeal
No. 8766 of 2022 (Smt. Shakeela v. State of U.P.) is
concerned, we affirm and maintain the judgment and
order of conviction and sentence dated 14.10.2022
passed by the Trial Court in respect of appellant, Smt.

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CAPT No. - 20 of 2022
Shakeela, in its entirety. Accordingly, Criminal Appeal No.
8766 of 2022 is hereby dismissed.
90. Let a copy of this judgment and order be
communicated to the Trial Court along with the Trial
Court Record for necessary compliance forthwith.
(Vinai Kumar Dwivedi,J.) (Siddharth,J.)
November 5, 2026
Aditya
Digitally signed by :-
ADITYA KUSHWAHA
High Court of Judicature at Allahabad