Altaf vs State of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2597 of 2016
Altaf
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Along with :
1. Criminal Appeal No. 2295 of 2016:
Sanjeev Kumar
Versus
State of U.P.
Counsel for Appellant(s) : Pradeep Kumar Mishra A/c, Dhiraj
Kumar Pandey, Mohit Kumar, Ramesh
Chandra Srivastava, Suresh Kumar
Maurya, Zafar Abbas
Counsel for Respondent(s) : G.A., Sayeed Saif Ullah, Sufia Saba

AFR
Reserved

Court No. - 44
HON'BLE SIDDHARTHA VARMA, J.
HON'BLE ACHAL SACHDEV, J.
1. These appeals had been preferred against the judgment and order dated
30.3.2016 passed by the Additional Sessions Judge, Fast Track Court,
Saharanpur in Sessions Trial No.284 of 2011 convicting the appellants
Altaf and Sanjeev and sentencing them under section 302/34 of Indian
Penal Code for life with a fine of Rs.50,000/- each and in the event of
default of payment they had to undergo one year's additional
imprisonment. The appellant-Altaf was also sentenced under section 4/25
of the Arms Act for one year imprisonment with a fine of Rs.5000/- and
in default of payment he had to undergo one month's additional
imprisonment.
2. The brief facts of the case are that when an incident had occurred on
8.2.2011 at around 11.45 PM, wherein Shabbir son of Shafiq was

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murdered, Kallu, the first informant had lodged a First Information Report
at around 1.05 AM on 9.2.2011. It was stated in the FIR that outside the
ALM Meat Factory, Harora wherein Kallu was a Supervisor, on 8.2.2011,
Shabbir and Jamal who had gone to see off their brother at Saharanpur
were attacked at 11.45 PM by two miscreants. Shabbir and Jamal were
stopped and Shabbir was stabbed because of which he got injured. Jamal,
however, raised a hue and cry and reached near the gate of the ALM Meat
Factory, where he found Sattar s/o Sharif and Sadaqat s/o Liyakat and
other workers of the factory. However, the accused who were two in
number escaped towards the jungle in the north. The two who had
escaped were seen by those who had collected around Shabbir, in the
electricity and torch light and it was further stated that if the two accused
came before them then they would be able to recognise them. The injured
Shabbir, who was taken to the government hospital at Saharanpur died
there and, therefore, Kallu, the informant, had come over to the police
station to get the FIR lodged. The scribe of the FIR was one Sanavvar
Ali.
3. On 14.2.2011, on the information given by an informer (Mukhbir
Khas), a police team comprising the S.O. Hukum Singh; Sub-Inspector
Yashpal Singh; Sub-Inspector Sunil Dutt; Constable Shaukeen; Constable
Harendra and Constable Yashpal in Jeep No.UP 11 AG 0003 headed
towards the village Harora and on the pointing of the informer, they found
that three persons were sitting outside a power house which was still
under construction. Upon seeing the police, the three persons who were
sitting outside the power house, suddenly attempted to escape. However,
they were apprehended. Upon asking their names, one of them told that he
was Altaf s/o Abbas, resident of Harora, District Saharanpur and from his
pant, a SIM wrapped in a paper, was recovered. Upon putting it in the
phone, it was discovered that it had a number 9760082093. From the pant
of Sanjeev Kumar, another person who was apprehended, a mobile phone
having number 9536495241 was recovered. Altaf upon being
interrogated, told that he along with Sanjeev Kumar and Sumit Kumar
had tried to extract Rs.20 lacs from the owner of the ALM Meat Factory
but when the owner Haji Tasleem did not accede to their demand then
only to create a terror they had killed a labourer outside the factory. He

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had stated that he had killed the labourer with a knife which he had, after
being used, washed it and had buried it in the mango grove of one Ali
Gauhar. In the presence of Naim and Rehan Ahmad, two independent
witnesses, the recovery of the knife was made. The recovered knife was
buried under the ground and it was covered by a blue polythene. The
recovery memo of the knife was prepared and also an FIR under section
4/25 of the Arms Act vis.-a-vis. accused Altaf; under section 302 IPC
vis.-a-vis. Altaf and Sanjeev Kumar and under section 386 IPC vis.-a-vis.
Altaf, Sanjeev Kumar and Sumit Kumar was registered. The FIR under
section 386 IPC which had given rise to Case Crime No.27/11 was
already registered from before.
4. Thereafter further investigation was made and the soil laden with blood
and one which had no blood was collected. The panchayatnama of the
deceased was also conducted on 9.2.2011 and thereafter a post mortem
was conducted on the dead body of Shabbir and the cause of death was
shown to be shock and hemorrhage due to ante-mortem injuries. The soil
which had blood; the knife; pant; shirt and jacket were sent to the
Forensic Science Laboratory for examination. Upon the completion of the
investigation, a police report was sent to the Court and the Court vis-a-vis.
Sanjeev Kumar and Altaf framed charges under sections 302 read with
section 34 IPC. When they denied the charges, trial commenced. So far as
Altaf was concerned, another charge was framed under section 25/4 of the
Arms Act.
5. Before the Court, to prove the case of the prosecution, as many as 13
prosecution witnesses were examined.
6. PW-1 was the first informant Kallu and he had stated, in his
examination-in-chief, that he had not seen the persons who had stabbed
the deceased. However, he had stated that Riyasat; Sabbar, Sadakat, Arif
and Sahabuddin had informed him that Shabbir was killed by a knife.
After the injured was taken to the hospital he had died. Thereafter, the
first informant Kallu along with the scribe Sanavvar went to the police
station to lodge the FIR. He had proven the FIR in the Court. In the cross-
examination he had stated that he had been a Supervisor in the ALM Meat
Factory for the past eight years and in the factory 920 people were

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working. The factory was situate in around 20-25 bighas of land. The
record of entry and exit of all the labourers was kept in a register and that
the factory had 40 chowkidars. The deceased Shabbir, he had stated, had
started working in the factory for the past three years and that his name
was very much entered in the factory register and also in the register of
the Supervisor. Jamal, he had stated in the cross-examination, did not
work in the factory. This question was asked because Shabbir after having
dropped his brother had come towards the factory along with Jamal who
has been examined as PW-5 in the Court. He had stated that there were
four mango groves near the factory premises. Upon being asked as to who
had informed him about the incident, he had answered that it was Sadakat
(PW-3) who had informed him about the incident on phone. It may be
noted that the PW-1 when had got the FIR lodged had stated that when
Jamal had raised a hue and cry then Sattar and Sadakat (PW-3) had come
at the factory gate along with other persons whose names he did not
remember. On that particular date, the PW-1 had stated that he had
already left for hospital from his house which was in Saharanpur. Why
this fact that he had left for the hospital from his house which he had told
to the police was not mentioned in the statement under section 161
Cr.P.C., he did not know.
7. PW-2 was one Mohd. Asif and he had stated that he was working in the
ALM Factory for the past 6-7 years and was also knowing the accused
Altaf and had stated that he had, sometime back, been running a tea shop
outside the factory. He had then stated that on 8.2.2011 at around 11.30 -
11.45 PM while he was inside the Gate No.5 of the factory, he had heard
some screaming etc. Thereafter Munna (Jamal PW-5)had come towards
the Gate No.5 and there was enough light at the place. He had stated that
he had seen Altaf with a knife in his hand. He had further stated that
Sanjeev who was present in the Court had held Shabbir from the back and
Altaf had stabbed Shabbir on the neck. He had stated that he had
recognized the accused. He had further stated that the accused Sanjeev
was having a tea stall outside the gate of the factory and, therefore, he
knew about him. He had further stated that apart from him at the spot,
were Sahabuddin and many other persons and had further stated that
Shabbir, before the incident had occurred, had gone to Saharanpur to drop

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his brother. In the cross-examination, he had stated that ALM factory was
an abattoir. How many people had worked there, he had no idea. He had
told himself to be also a Supervisor in the factory and was doing the work
of receiving material etc. and he was getting a salary of Rs.6000/- and that
he was still working in the factory. He had very categorically stated that
his statement under section 161 Cr.P.C. was recorded after two days of
the incident and on the date when his statement was recorded, the
statements of Sattar and Sahabuddin were also recorded (i.e. to say that
the statements of Sattar and Sahabuddin were also recorded after
two days of the incident) . The PW-2 when was confronted with his
statement under section 161 Cr.P.C., he had stated that he did not know as
to why the following facts were not mentioned in his statement under
section 161 Cr.P.C. :-
i. The accused was having a tea stall in front of the factory;
ii. Munna @ Jamal had come running to Gate No.5 and he had told that
the miscreants had held Shabbir and therefore guards had been called and
along with the guards, he had gone to the place of incident;
iii. He had told the daroga that from the side of mango grove, he had
heard screams of Shabbir;
iv. He had a torch in his hand;
v. He had also stated that there was a knife in the hand of Altaf;
vi. Sanjeev had held Shabbir from behind;
vii. Sanjeev used to come to a tea stall opposite the Gate No.5; and
viii. Sanjeev had gone to Saharanpur to drop his brother.
All these above facts as per PW-2 were though stated in the Court, were
not mentioned in the statement recorded under section 161 Cr.P.C.
8. PW-3 was Sadakat Ali and his name found mention in the FIR when
the FIR was lodged and in it, it was mentioned that Sadakat along with
Sattar had reached the place of incident at the time when the accused had

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escaped in the jungle. He had denied that he had gone to the place of
incident. He had only stated that PW-5 Munna @ Jamal had come
shouting that Shabbir had been held by certain miscreants. He, upon
saying that he had never been to the place of incident, was declared
hostile. In the cross-examination, he had stated that the police had not
recorded any statement of his under section 161 Cr.P.C. He had stated
that he was surprised to notice that a statement under section 161 Cr.P.C.
was recorded by the police. In the statement, which he denied and was
allegedly recorded under section 161 Cr.P.C., it was stated that Jamal
PW-5 had told the PW-3 that his uncle Shabbir had been held by two
miscreants and was being stabbed and he (PW-5 Jamal) had escaped
somehow from the place of incident.
9. PW-4 was Sahabuddin. He had alleged that he was the person who
used to supply animals to the factory where animals were cut. He had
stated that he had reached the place of incident at around 11.45 on
8.2.2011 and he was taking down the animals from his vehicle and at that
moment at Gate No.5, Jamal who was the nephew of the deceased came
running and told the PW-4 Sahabuddin, Sattar (not examined), Sadakat
(PW-3 who turned hostile) and Asif (PW-2) about the incident and they
were informed of how the miscreants had attacked Shabbir and were
stabbing him. Upon this, PW-4 had stated that he reached the place of
incident and saw Altaf with a knife in his hand and saw that he was
stabbing Shabbir. Sanjeev had held Shabbir from the back and upon
seeing him (PW-4), Altaf ran away from the place of incident. He had
stated that he had recognized Altaf and Sanjeev in the torch light. Altaf
was a labourer in the factory and Sanjeev was his friend and, therefore, he
recognised them both. Altaf's father had a tea stall outside the factory. In
the cross-examination, he had affirmed the purpose for which he used to
visit the factory and had stated that when the animals were sold, he had to
get a receipt and when the animals entered the factory, this fact was also
entered in a logbook and the vehicle number was also written in that very
logbook. However, he stated that he could not place the receipt of the
animals which he had sold on that day. He also told that the registration
number of the vehicle by which he had taken the animals, he did not
remember. He had also very categorically stated that his statement was

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also recorded under section 161 Cr.P.C. after two days of the incident. He
was also surprised as to why the following facts were not mentioned in
his statement under section 161 Cr.P.C. :-
i. Upon reaching the spot, he had found that Altaf had a knife in his hand
and was stabbing Shabbir;
ii. Sanjeev was holding Shabbir from the behind and upon seeing the PW-
4, both the accused had run away;
iii. The father of Altaf was also working in the factory and, therefore, he
knew him;
iv. Altaf and Sanjeev had assailed Shabbir with an intention to kill him;
v. The two accused had run away on seeing the PW-4 towards the jungle
and that he had not chased the accused persons.
10. He then had stated that what he had not stated and was reportedly
mentioned in the statement under section 161 Cr.P.C. was that Shabbir
was taken in his vehicle from the factory to the hospital.
11. PW-5 was Jamal and his name found mention in the FIR where the
informant had stated that Shabbir and Jamal had come back to the factory
after Shabbir had seen off his brother at Saharanpur. He had stated that
Shabbir had gone to Saharanpur to drop his brother and when Shabbir and
he himself i.e. PW-5 had come back to the factory, it was almost 11.45
and it was then that two persons pulled them towards the grove and
Shabbir, the uncle of the PW-5, was pulled by the collar and the PW-5
was pulled by his hand. PW-5 had tried to release himself from the hold
of the accused. However, Altaf stabbed Shabbir with his knife and he
(PW-5) ran towards the factory. He had stated that he had seen the
accused in the electricity and torch lights. Thereafter Shabbir was taken to
the hospital in an injured state where he was declared dead. He had stated
that the murderers were 25-30 years of age and had stated that both of
them were in the Court on the date he was testifying. He pointed towards
Altaf and stated that he was the person who had stabbed Shabbir and the
person who had held him was Sanjeev Kumar. He had stated in his cross-

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examination that he was working in the canteen of the factory and the
working hours were 9.00 in the morning to 7.00 in the evening. He had
stated that Shabbir was taken in the vehicle of the company to the
government hospital. He had stated that he was kept in the Thana for two
days and thereafter he had gone to his home in Saharanpur. He wondered
as to why the following statements which he had made before the police
were not mentioned in his statement under section 161 Cr.P.C. :-
i. The two accused persons had held them. One had held the uncle by the
collar and the other had held the PW-5 by his hand;
ii. Also, it was not mentioned that Altaf had stabbed his uncle. He also
mentioned that he was surprised as to why the source of light was not
mentioned.
12. PW-6 was the scribe of the FIR namely Sanavvar Ali. He had stated
that what was dictated to him by Kallu, he had written. In the cross
examination, he had admitted that he had not seen the incident. He had
also stated that his statement under section 161 Cr.P.C. was recorded on
12.2.2011 i.e. almost after four days after the incident.
13. PW-7 was the factory owner. He had in his statement-in-chief stated
that his mobile number was 9837019192 and that on 1.2.2011 at around
11.30 AM and on 6.2.2011 at around 3.00 PM, he had received
threatening calls. However, he did not remember the phone numbers from
which he had received the calls. He had stated that the telephone calls had
come from the accused who was present in the Court namely Sanjeev and
he knew that person and he also recognised his voice. He had stated that
Sanjeev and Altaf quite often used to go for outings around the factory.
Altaf used to work earlier in the factory and therefore he knew him. He
had stated that Sanjeev had demanded Rs.20 lacs illegally from him and
had threatened that if he did not give that amount then he would kill him.
On 8.2.2011 Shabbir was killed outside his factory by two persons. On
10.2.2011 at around 9.00 PM, he had received a call on his mobile from
number 9760082093 and again a demand of Rs.20 lacs was made and it
was stated that if he did not give the money then in the same manner as
Shabbir was killed, others would also be killed. He then stated that the

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person who was calling from the other side was Altaf and that the
recording was sent by him to the police. When he refused the payment of
Rs.20 lacs on the pretext that his bhabhi was unwell then the accused had
stated that if he was not able to give Rs.20 lacs then at least 5 lacs be
given. He stated that both Altaf and Sanjeev had tried to create terror
outside the factory. On 11.2.2011 his bhabhi, however, had died. In the
cross-examination, he had stated that the report was got registered by
Kallu and he was at that point of time i.e. on 8th, 9th and 10th of
February, 2011, in Delhi. He had stated that he had no knowledge as to
whether Altaf's father was running a tea shop outside the factory. He had
stated that he had informed the police that from the other side Sanjeev
was speaking and demanding the money on phone.
14. PW-8 Mohd. Rihan was the witness who had allegedly gone to
recover the knife along with the police and he had narrated the manner in
which the knife was recovered. He had also stated that he had reached the
factory to sell some animals. However, he could not tell as to whether any
receipt etc. was with him of the sale which he had done. He had stated
that he had not seen any blood on the knife which was recovered. He had
further stated that his statement was recorded under section 161 Cr.P.C.
on 21.2.2011.
15. PW-9 was Dr. Akhil Tandon, the physician in district hospital
Muzaffarnagar. He had stated about the injuries on the dead body and had
also stated the manner in which he had conducted the post mortem.
16. PW-10 was the Investigating Officer Yashpal Singh and he had
mentioned the manner in which the investigation was done. He had also
specially mentioned about the recovery of the SIM cards.
17. PW-11 was Sub-Inspector Hukum Singh. He had also been the
Investigating Officer in the case. He had stated that there was no
electricity light at the place of incident. He had also stated that the
material exhibit of the recovery of the mobile and the SIM was not
produced before the Court. He had very categorically stated that he had
not identified the accused. He had also stated that he had not taken any
voice sample of the accused. This portion of the statement is being

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reproduced here as under : -
"
मैंने दौरान विवेचना अभियुक्तगण की शिनाख्त गवाह जमाल से या किसी अन्य गवाह से नहीं
कराई थी। दौरान विवेचना मैंने अभियुक्त अल्ताफ की आवाज का कोई नमूना लेकर उसकी
आवाज का मिलान नहीं कराया। मैंने अभियुक्तगण के हस्तलेख का भी किसी हैंड राइटिंग
एक्सपर्ट से कथित अभियुक्त के लैटर के हस्तलेख से कोई मिलान नहीं कराया।"
18. PW-12 was one Asharam and he had proved the chik etc.
19. PW-13 was Rajpal Singh, HCP Gagalhedi, District Saharanpur and he
was the Investigating Officer in the Arms Act case.
20. Upon the conclusion of the recording of the statements of the
prosecution witnesses, the statements of the accused Altaf and Sanjeev
under section 313 Cr.P.C. were recorded. In his statement under section
313 Cr.P.C., the accused Altaf had stated that he had a tea stall and also a
house opposite the factory gate and the shop was got closed by the owner
of the factory. Similarly, Sanjeev had also in his statement under section
313 Cr.P.C. stated that he was picked up from his house and was wrongly
implicated in the case.
21. A defence witness being DW-1 Narendra had come in the witness box
and stated that Sanjeev was his brother-in-law (sala) and that he had come
over to his house on the date of incident. On the relevant date i.e. on
12.2.2011, 4-5 police personnel had come to his house and had picked
Sanjeev from there.
22. Thereafter when the accused were found guilty and were convicted
under section 302 IPC read with section 34 IPC and under section 25/4 of
the Arms Act by the judgment and order dated 30.3.2016, two appeals
were filed; one being Criminal Appeal No.2295 of 2016 by Sanjeev and
another being Criminal Appeal No.2597 of 2016 of Altaf. Both the
appeals were consolidated and were heard together.
23. Sri Pradeep Kumar Mishra, learned Amicus Curiae appearing for the
appellant-Altaf and Sri Dhiraj Kumar Pandey, learned counsel for the
appellant-Sanjeev have made the following submissions :
i. If the FIR is perused then it becomes certain that no accused was named

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in it. The FIR was lodged on 9.2.2011 at 1.05 AM and till the lodging of
the FIR, no one was aware of the fact as to who was the person who had
killed the deceased. However, on account of certain enmity etc. with the
two accused namely Altaf and Sanjeev, they were implicated
subsequently after the statements of Mohd. Asif (PW-2), Sahabuddin
(PW-4) and Mohd. Rihan (PW-8) was got recorded under section 161
Cr.P.C. very belatedly. Learned counsel for the appellants submits that if
these were the persons who were allegedly there at the place of incident
then they could have definitely, at that point of time itself, revealed the
names of the accused. Because they had not mentioned their names at the
right moment, it definitely becomes certain that after a much thought out
exercise, their names were introduced through the PW-2-Mohd. Asif,
PW-4-Sahabuddin and Mohd. Rihan (PW-8).
ii. The PW-5 Jamal whose name was also mentioned in the FIR, as per his
statement in the Court, he had been detained by the police for two days in
the police station. However, it is strange that he did not mention the
names of the accused despite the fact that he had recognized them in the
Court during the time his testimony was being recorded.
iii. When the appellants were not named in the FIR and subsequently the
names surfaced, then it was the duty of the Investigating Agency to have
conducted a Test Identification Parade before their names were openly
discussed and taken in the Court. This having not been done, it was a
definite case of false implication. In this regard, learned counsel for the
appellants further relied upon a decision of the Supreme Court reported in
and submitted that
(2022) 9 SCC 402 : Amrik Singh vs. State of Punjab
it would be unsafe to convict an accused solely on the basis of his
identification for the first time in the Court. Learned counsel for the
appellant further to bolster his case with regard to the fact that the
identification of the accused for the first time in Court was a weak piece
of evidence, relied upon (1979) 3 SCC 319 : Kanan and others vs. State
and submitted that identification by a witness of the accused in
of Kerala
Court raises a serious doubt and his testimony must be excluded. Still
further he relied upon
(1971) 2 SCC 715 : Rameshwar Singh vs. State
of Jammu and Kashmir and submitted that if the accused was not
previously known to the witness then an identification parade ought to

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have preceded the dock identification. Learned counsel for the appellant
stated that though as per the decision of the Supreme Court in (2003) 5

SCC 746 : Malkhan Singh and Ors. vs. State of Madhya Pradesh
evidence in Court was a substantive evidence but he submits, relying on
the very same case law that if the recognition in the Court by the
prosecution witness of the accused was not preceded by a test
identification then the evidence would be categorized as a weak evidence.
No or little weight should be attached to the evidence of identification in
Court, which is not preceded by a test identification parade.
iv. Learned counsel for the appellants further submits that Sattar was the
person whose name was mentioned very categorically in the FIR that he
was there when a hue and cry was raised by Jamal but he was never
examined in the Court. Also, learned counsel submits that Sattar's name

was mentioned in the FIR and therein it was also stated that he (Sattar)
reached the place of incident along with the PW-3 Sadakat. Quite
interestingly PW-3 had turned hostile and he had actually stated that he
had never been at the place of incident.
v. Learned counsel for the appellants submits that there was on record an
FSL report which had seen blood on the knife and had also tested the
same and it found that it had disintegrated. However, the statements of all
the witnesses had been that no blood was there on the knife and in fact the
PW-1 had gone to the extent of saying that when the appellant was
arrested, he had given a statement that he had washed the knife with
water. Learned counsel for the appellants, therefore, submits that every
effort was made to garner evidence falsely.
vi. Learned counsel for the appellants further submits that in the case at
hand when Altaf was arrested, he was arrested with a SIM Card
No.9760082093 and Sanjeev Kumar was arrested with SIM having
number 9536495241. However, these were, though recovered, were never
exhibited and produced in the Court. Strangely enough even the factory
owner Taslim Kamal (PW-7) had stated that he had received a phone call
from number 9760082093 but neither was any voice sampling done of the
recorded CD he had claimed was of Altaf nor was any effort made to
actually test the voice sample.

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vii. If the evidence as was there on record is perused, it becomes
abundantly clear that apart from the PW-1, the statements of almost all
the prosecution witnesses namely Mohd. Arif, Sahabuddin, Jamal,
Sanavvar Ali, Tasleem Kamal (factory owner) were recorded after much
delay. Learned counsel stated that the Statement of PW-2 Mohd. Asif was
recorded after two days of the incident; the statement of PW-3 Sadakat
was recorded after quite a gap; the statement of PW-4 Sahabuddin was
recorded after two days of the incident; the statement of PW-5 Jamal was
also recorded after two days; the statement of PW-6 was recorded on
12.2.2011 i.e. almost after four days and the statement of PW-7 Tasleem
Kamal was recorded on 21.2.2011. Learned counsel for the appellants,
therefore, relying upon Harbeer Singh vs. Sheesh Pal reported in (2016)
submitted that the statements recorded belatedly were of no
16 SCC 418
use and were so recorded only to bring in the names of the accused on
record and to create further evidence by introducing new eye witnesses.
The fact of the matter was that immediately after recording of the
statement under section 161 Cr.P.C., when the names were not known,
then a complete exercise was undergone afresh after much thinking to
name the appellants as accused. Even in the FIR, there was no mention of
any accused. What is more, in the Court, the prosecution witnesses
namely PW-2 Mohd. Asif, PW-4 Sahabuddin and PW-5 Jamal had very
categorically mentioned that certain things which they had told the police
was not mentioned in the statements recorded under section 161 Cr.P.C.
All these, as per learned counsel for appellants, went to indicate that the
police had only very slyly introduced the names of the appellants and only
to make out a case, eye-witnesses were created.
24. Sri Sayeed Saif Ullah, learned counsel for the informant and Sri Ajay
Kumar Sharma, learned AGA for the State have, however, submitted that
when there were almost four eye-witnesses and when the eye-witnesses
had mentioned the names of the accused persons then there was
absolutely no reason to disbelieve the eye-witnesses. Learned counsel for
the informant and learned AGA state that in the case where the eye-
witness accounts were there, they should not be taken lightly and a
definite conclusion should be arrived at against the accused.
25. In the instant case, learned counsel for the informant, further submits

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that even the PW-7, who was the factory owner, had gone to the extent of
saying that he had voice recording and they were of the appellants and
thus there was no reason to find fault with the judgment of the Court
below.
26. Having heard learned counsel for the appellants; learned AGA and
learned counsel for the informant, we are of the view that initially the FIR
which was lodged on 9.2.2011 at 1.05 AM did not contain the names of
any of the accused persons. The names of the eye-witnesses were
mentioned whose statements had not been recorded immediately after the
incident but were so recorded almost after two or even more days. This as
per the judgment of the Supreme Court
Harbeer Singh vs. Sheesh Pal
reported in (2016) 16 SCC 418 definitely makes us believe that the police
was concocting a case and was trying to implicate the appellants in the
incident. What is more, if the PW-1 was not aware of the names of the
accused and had not mentioned them even in the FIR but had stated that
he could recognize them if they were brought before him, then it was
imperative that a test identification parade ought to have been held. This
having not been done, the witnesses were unbelievable. We find support
from the judgments of
Amrik Singh vs. State of Punjab : (2022) 9 SCC
402 and Kanan and others vs. State of Kerala : (1979) 3 SCC 319 . The
further case of the appellants that what they wanted to state in the
statements recorded before the police had gone unrecorded by the police
also goes to show that the police had created all the evidence sitting in the
police station. Still further, we find that the PW-7 had stated that he had
voice recording of the accused persons demanding money but no voice
sampling was done and also no comparison of the voice in the recording
with the voices of the appellants was done. The story of knife being
recovered appears to be doubtful. The prosecution witnesses themselves
had stated that they had found the knife washed with water. The Court
cannot understand as to how when the knife was washed with water and
thereafter was recovered, the investigation had sent it for forensic science
laboratory test where they had found blood and had also tested it. It
matters little that blood was disintegrated. The very fact that the
prosecution case was that the blood had been washed and still blood was
being found and also being sent to the FSL shows the extent of tampering

CRLA No. 2597 of 2016
15
done with the evidence by the police, and it can be said that it was not just
a minor tampering but the tampering has led the Court to believe that the
investigation was in the hands of a very puerile police which requires
proper training. The police also, we find, had after the PW-1 had not
given out the names either in the FIR or in the statement, recorded the
statements of the other prosecution witnesses and had introduced the
names therein. We are, thus, convinced that the police had botched up the
entire investigation and somehow tried to only implicate the appellants.
27. Under such circumstances, the appeals deserve to be allowed and are,
accordingly, allowed. The judgment and order dated 30.3.2016 passed by
the Additional Sessions Judge, Fast Track Court, Saharanpur in Sessions
Trial No.284 of 2011 is quashed. The appellants in both the appeals are
acquitted of all the charges levelled against them. The appellant-Altaf in
Criminal Appeal No.2597 of 2016 is in jail. He be released forthwith, if
not required in any other criminal case. The appellant-Sanjeev in Criminal
Appeal No.2295 of 2016, as per the office report dated 30.3.2026, is on
bail. He need not surrender. His bail bonds are hereby discharged.
28. Sri Pradeep Kumar Mishra, learned Amicus Curiae for his hard work
be paid a sum of Rs.25,000/- by the High Court Legal Services Authority.
The Registrar General to oversee the payment.
(Achal Sachdev,J.) (Siddhartha Varma,J.)
September 2, 2026
GS
Digitally signed by :-
GAUTAM SONI
High Court of Judicature at Allahabad