w w w . L a w y e r S e r v i c e s . i n



Mahey Alam v/s State


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Criminal Appeal No. 1562 of 1996

    Decided On, 04 March 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE PANKAJ MITHAL & THE HONOURABLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

    For the Appellant: I.M. Khan, H. Khan, Advocates. For the Respondent: AGA.



Judgment Text


Pradeep Kumar Srivastava, J.

1. Heard Sri Rajesh Kumar Singh, learned Amicus Curiae appearing on behalf of appellant, Sri Ajit Ray, learned AGA for the State of UP and perused the record.

2. This Criminal Appeal has been filed against the judgment and order dated 26.08.1996, passed by Ist Additional Sessions Judge, Kanpur Nagar, in Sessions Trial No. 356 of 1994, arising out of Case Crime No. 50 of 1994, under Section 302 IPC, Police Station Bajaria, District Kanpur Nagar, whereby the accused-appellant Mahey Alam has been convicted and sentenced for life imprisonment.

3. The prosecution story in brief is that the first information report was lodged by the informant Smt. Husnu Begum, the daughter of the deceased on 19.04.1994 at about 10:15 AM in respect of the criminal incident of same day taking place at about 09:00 AM. The father of the informant namely Rafiq @ Laddoo prevented some persons including accused from playing cards/gambling at his door, whereupon the accused-appellant Mahey Alam abused Rafiq @ Laddoo and when the deceased again objected on gambling there, the accused Mahey Alam opened fire by his pistol upon the deceased Rafiq @ Laddoo which hit him on his neck. He sustained firearm injury and fell down. The informant took the injured (deceased) Rafiq @ Laddoo to UHM Hospital with the help of some local people but on the way, he died. The witnesses who saw the incident were the informant, her brother Shabab, sister Nazneen, brother-in-law Moin and one Subhan. The informant Smt. Husnu Begum lodged an oral report at Police Station Bajaria on the same day. Offence was registered against accused and chik FIR was prepared. Inquest report of the dead body was prepared, the dead body was sealed and sent for postmortem. The postmortem was conducted on 20.04.1994. The matter was investigated by the police, blood stained and plain earth was collected from the spot, the clothes of the deceased stained with blood were also taken into possession by the police and the same were sent for chemical examination. The statement of the witnesses were recorded and charge sheet was filed under Section 302 IPC against the accused-appellant. The learned trial court has framed the charge under Section 302 IPC. The accused denied the charge and claimed trial.

4. The prosecution examined as many as six witnesses in support. PW-1 is informant and eye witness Smt. Husnu Begum, PW-2 is Shabab, who is also an eye witness, PW-3 is SI Ram Niwas Sharma, who is Investigating Officer, PW-4 is SI Satyaveer Singh. who prepared the inquest report, sealed the dead body and sent the same for postmortem along with other papers, PW-5 is Constable Ram Autar, who has prepared the chik and GD and PW-6 is Dr. Devi Prasad, who has conducted the postmortem of the deceased. The witnesses have proved the incident and the oral report as Ext. Ka-1, site map as Ext. Ka-2, memo of blood stained and plain earth as Ext. Ka-3, charge sheet Ext. Ka-4 and blood stained and plain earth as material Exts. 1 and 2, inquest report Ext. Ka-5, letter to CMO, Challan and Photo dead body and sample seal as Exts Ka- 6 to 8 and postmortem report Ext. Ka-11.

5. After hearing both the prosecution and the defence, the trial court has passed the impugned judgment convicting and sentencing the accused-appellant.

6. Feeling aggrieved by the impugned judgment, the present criminal appeal has been filed by the accused-appellant and he has challenged the impugned judgment on the ground that the same is against the law and facts and against the weight of evidence on record. The sentence awarded is too severe and, therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

7. Learned counsel for the appellant has argued that the first information report is delayed and reasonable explanation has not been tendered to explain the delay. The fact witnesses are highly interested and related witnesses and no independent witness has been examined. There is improvement and contradiction and embellishment in the testimony of the fact witnesses. Some unknown person killed the deceased and out of enmity, the accused was falsely implicated. Learned counsel for the appellant has further argued that PW-2 has been examined as a child witness and he should not have been relied upon.

8. On the contrary, learned AGA has submitted that two fact witnesses who were the eye witnesses of the incident were examined and they have supported the prosecution version and the same find support from the postmortem report. The learned trial court, finding the prosecution case proved beyond shadow of any doubt, has rightly convicted the accused-appellant. There is no force in the appeal and the same is liable to be dismissed.

9. In the light of rival arguments, we proceed to analyze evidence on record. Two fact witnesses have been examined by the prosecution. PW-1 Smt. Husnu Begum (informant and eye witness) has stated that 8 months before at about 09:00 AM in the morning, the boys of her locality and the accused Mahey Alam of Kafi Mohalla were gambling by playing cards on her door. They were prevented by her father Rafiq @ Laddoo, whereupon the accused-appellant started abusing him. When her father tried to stop him, the accused fired on him by his pistol which hit on his neck. He fell down and the accused fled away from there. She and her brother-in-law took Rafiq @ Laddoo to Ursala Hospital where he was found dead. She went to the police station and lodged the FIR by giving oral information about the incident. The chik was prepared and she was read over on which she put her thumb impression. She has also stated that the incident was also seen by Shabab and Moin etc. The place where her father fell after receiving gun shot injury, blood also fell down on the earth.

10. PW-2 Shabab is aged about 11 years and he has been examined as child witness after duly testing the intellectual capacity by the court. In his statement, Shabab has stated that about one year ago, at about 09:00 AM, he was playing with his father and on his door some persons of the locality and the accused Mahey Alam of Kafi Mohalla were gambling by playing cards. His father prevented them, whereupon the accused started abusing him and on being prevented from abusing, he fired on him by his pistol. The fire hit his father who fell down. The accused ran away from there. His sister Smt. Husnu Begum and brother-in-law Moin took his father to Ursala Hospital. The incident was seen by him, sister Smt. Husnu Begum and other people of the locality. The witness has identified the accused in the court who was present at the time of statement.

11. PW-3 SI Ram Niwas Sharma (Investigating Officer) has stated that on 19.04.1994, he was posted in PS Bajaria and the case was registered in his presence. He took the statement of Smt. Husnu Begum and Moin. He went to the place of occurrence. The inquest report was prepared and the dead body was sealed by SI Balbir singh Malik and the dead body was sent for postmortem. He inspected the place of occurrence and prepared the site map on the pointing of informant. He found blood stained and plain earth on the place of occurrence and the same was taken into containers and sealed. Memo thereof was prepared by him. He has further stated that he examined witnesses Subhan, Nazneen, Shabab after inspecting the place of occurrence. After completing the investigation, he submitted charge-sheet.

12. PW-4 SI Satyaveer Singh Malik proved the inquest report and other relevant papers necessary for sending the sealed dead body for postmortem.

13. PW-5 Constable Ram Autar has stated that he prepared chik FIR on the oral information given by the informant. What she said, the same was written and after hearing the same, the informant put her thumb impression. Entry was made in GD no. 22 on the same day at 10:15 AM. Special report was also sent through Constable Radhey Shyam and the same was entered in GD No. 24 of 10:40 AM on the same day.

14. PW-6 Dr. Devi Prasad has stated that on 20.04.1994, he was posted as Medical Officer and on 10:15 AM, he conducted the postmortem of the dead body of Rafiq @ Laddoo, aged about 50 years, brought in sealed condition along with necessary papers and was identified by Constable Chandra Shekhar Yadav and Constable Vinod Kumar of PS Bajariya. He has further stated that the deceased was of average height. Rigor Mortis was present in the lower limb and it has passed from the upper limbs. Postmortem staining was present on back and thigh. He found one firearm entry wound, 1 cm. x 4 cm. on the right side of neck on the lower part, 1 cm. right from mid line and 6 cm. below from the right medial angle. Blackening was present and the injury was internally bend, whereas on the exit side the wound was externally bend.

15. The doctor has stated that in the internal examination, it was found that the right charotic artery was torn. The doctor also found semi digested food in the abdomen, breath tube was torn, both the lungs were pale and both the compartments of heart was found empty. According to the doctor, the cause of death was shock and hemorrhage due to fire arm injury. He has further stated that the injury was sufficient to cause death and it was possible that the injury must have been caused on 19.04.1994 at about 09:00 AM.

16. It has been argued by the learned counsel for the appellant that there is delay in lodging FIR. It appears from record that the incident took place at about 09:00 AM on 19.04.1994 and the first information report was lodged orally on the same day at 10:15 AM. This fact has been proved by the informant PW-1 who has stated that after her father was declared dead in the hospital, she went to the police station and lodged the FIR by orally stating the whole incident to the police at about 10:15 AM. Her statement further finds support and corroboration from the statement of PW-5 Constable Ram Autar who prepared the chik FIR and made entry in the GD. The police station is three furlong away from the house of the informant and FIR has been lodged within one hour and fifteen minutes from the time of incident. The FIR shows that the deceased was first taken to the hospital and when he was declared dead by the doctor, the informant went to lodge FIR in the police station. As such, we find that there is no delay in lodging FIR. In fact, the first information report in this case has been lodged very promptly and the learned trial court has very rightly concluded that the promptness of the FIR shows that it was lodged soon after the incident without any consultation or deliberation.

17. The Investigating Officer has prepared site map of the place of occurrence, which has been proved as Ext. Ka-2 in which the place A has been shown where accused Mahey Alam was standing and from where, he shot fire on the deceased. X in circle is the place where the deceased was standing and at B, he sustained firearm injury. The presence of witnesses has been shown by single arrow, the direction has been shown by double arrow to which the accused ran away after commission of the offence. It has also been mentioned in the site map that the circle X is six steps away from the witnesses and one step away from the place where the deceased was standing. From circle X, blood stained and plain earth was taken by the Investigating Officer. The first information report also discloses the place of incident to be on the door of the informant and in their statements also, PW-1 and PW-2 have stated the same fact. Hence, we find that the place of occurrence has been fully established by the prosecution.

18. The learned counsel to the accused-appellant has challenged the credibility of fact witnesses on the basis of their being related witness, certain contradiction and improvement and lack of any motive for the commission of offence. He has submitted that no independent witness has been examined and both the fact witnesses are relatives and highly interested witnesses and on their evidence no reliance could be placed by the learned trial court. It has been further submitted that PW-2 is a child witness and his testimony cannot be relied upon.

19. We will first examine the issue of related witness. It is admitted fact that both the fact witnesses are brother and sister and the deceased has been their father. The law in respect of the testimony of related witnesses has been time and again reiterated by the Supreme Court that the testimony of related witnesses cannot be discarded merely on the basis of relationship. The only requirement is that the testimony of such witness should be scrutinized cautiously and carefully. In Dalip Singh v State of Punjab (1954) SCR 145, while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

20. In Masalti v State of UP AIR 1965 SC 202, the Supreme Court observed:

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice."

21. The Supreme Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness. A witness may be called interested only when he or she derives some benefit from the result of litigation; a decree in a civil case, or in seeing a person punished in a criminal trial. In Darya Singh v State of Punjab, AIR 1965 SC 328, followed by State of UP v Kishanpal (2008) 16 SCC 73, the Court held as under:

"On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

22. Again, in Appa v State of Gujarat, AIR 1988 SC 698, the Court has observed:

"Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused."

23. Similar view has been taken in State of AP v S. Rayappa (2006) 4 SCC 512, where the court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court stated the principle as follows:

" ....by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons."

24. Further, in Pulicherla Nagaraju @ Nagaraja Reddy v State of AP (2007) 1 SCC (Cri) 500, the Supreme Court has held as under:

"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."

25. Similarly, in Satbir Singh v State of UP, (2009) 13 SCC 790, the Court has held as under:-

"It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."

26. In M.C. Ali v State of Kerala AIR 2010 SC 1639; and Himanshu v State (NCT of Delhis, (2011) 2 SCC 36, Bhajan Singh and others v State of Haryana; (2011) 7 SCC 421, it was laid down that evidence of a related witness can be relied upon provided it is trustworthy. Again, in Jayabalan v U.T. of Pondicherry, 2010(68) ACC 308 (SC), the Supreme Court has made following observation:

"We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

27. Dharnidhar v State of UP, (2010) 7 SCC 759 referred the above observation of Jaya Balan (supra) and held that there is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. Similar view has been taken in Ram Bharosey v State of UP AIR 2010 SC 917, where the Court stated that a close relative of the deceased does not become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice.

28. Again, in Balraje @ Trimbak v State of Maharashtra, (2010) 6 SCC 673, it has been held that when the eye-witnesses are stated to be interested and inimically deposed against the accused, it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyze the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

29. Subsequently, in Jalpat Rai v State of Haryana AIR 2011 SC 2719 and Waman v State of Maharashtra AIR 2011 SC 3327, it was observed that the over-insistence on witnesses having no relation with the victims often results in criminal justice going away. The testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. This view has been reiterated in Shyam Babu v State of UP, AIR 2012 SC 3311, Dhari & Others v State of UP, AIR 2013 SC 308 and Bhagwan Jagannath Markad (supra). Recently, in Ganapathi v State of Tamilnadu, AIR 2018 SC 1635, the Court found no force in the argument that the conviction based on the evidence of family members in a murder trial is not sustainable. In Rupinder Singh Sandhu v State of Punjab, (2018) 16 SCC 475, it has been reiterated by the Supreme Court that relationship by itself will not render the witness untrustworthy. The Supreme Court laid down as below:

"Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. ...... A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

30. Recently, in Shio Shanker Dubey v State of Bihar AIR 2019 SC 2275, the Supreme Court has reiterated the law as under:

"...... a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."

31. Thus, in view of aforementioned decisions of the Supreme Court, it is settled position of law that the statements of the interested witnesses can be safely relied upon by the court in support of the prosecution story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons who are closely related to the deceased and inimical with the accused. When their statements find corroboration by other evidence, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons. There is no rule to the effect that the evidence of related or partisan witness is not acceptable. Association or relation does not render the evidence false and partisanship is no ground to reject the testimony given on oath.

32. In this instant case, we find after close scrutiny of the evidence of the two eye-witnesses that they have narrated the whole sequence of commission of the offence. The offence was committed on the door of their house. It was morning time and their being present on spot at the time of incident appears to be most natural. The defence theory that the witnesses did not see the criminal incident as they were not present there, is not convincing. It is a case of broad day murder and the two eye-witnesses were none other but the daughter and son of deceased and the incident took place on the door of deceased and their presence on place of occurrence is natural. There is consistency in the evidence of both the eye-witnesses without any contradiction on material point. The learned trial court has found them trustworthy and reliable and it hardly has any impact that they are related witnesses.

33. The next submission is about motive and it has been argued that the accused did not have motive or adequate motive sufficient to cause death of deceased. The prosecution case is based on direct evidence and the settled law is that motive goes to back seat in such cases. In a number of decisions, like Abu Thakir v State AIR 2010 SC 2119, State of UP v Nawab Singh AIR 2010 SC 3638, Bipin Kumar Mondal v State of West Bengal 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka (2003) 6 SCC 392, Thaman Kumar v State of Union Territory of Chandigarh (2003) 6 SCC 380, State of HP v Jeet Singh; (1999) 4 SCC 370, it has been repeatedly held by the Supreme Court that motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubt raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused.

34. We find that the Supreme Court has reiterated the aforesaid view in various decisions, such as Gopi Ram v State Of UP, 2006 (55) ACC 673 SC, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72. In the recent judgment of Saddik Vs. State of Gujarat, (2016) 10 SCC 663, it has been held that the prosecution case could not be disbelieved on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilty of accused persons.

35. We are of the view that when there is sufficient direct evidence regarding the commission of offence, the question of motive should go away from the mind of the Court. Motive is a double edged weapon and the key question for consideration in cases based on direct evidence remains whether the prosecution has convincingly and satisfactorily established the guilt of the accused beyond reasonable doubt by adducing reliable and cogent evidence. As such, in case of direct evidence, the proof of the existence of a motive is not necessary for a conviction for any offence. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record establishes the guilt of the accused.

36. The learned counsel to the accused-appellant has submitted that PW-2 is a child witness and on the basis of his statement, conviction is not legal. He has referred to the judgment of the Supreme Court in Digamber Vaishnav v State of Chhattisgarh, (2019) 4 SCC 522, where the accused was convicted on the basis of uncorroborated testimony of a child witness who was just 9 years in age and the Court found on the basis of evidence on record that she was not an eye-witness and therefore, the judgment of conviction was set aside. Supreme Court made following observation:

"This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law."

37. The law referred above is not new and that view has been already expressed in various judgments of the Supreme Court. Thus we find that in Acharaparambath Pradeepan v State of Kerala, 2007(57) ACC 293 (SC), State of Karnataka v Shantappa Madivalappa, AIR 2009 SC 2144, State of U.P v Krishna Master, AIR 2010 SC 3071 and K. Venkateshwarlu Vs. State of AP, AIR 2012 SC 2955, it has been laid down that a child witness is competent to testify u/s 118, Evidence Act. Tutoring cannot be a ground to reject his evidence. A child of tender age can be allowed to testify if it has intellectual capacity to understand questions and give rational answers thereto. Trial Judge may resort to any examination of a child witness to test his capacity and intelligence as well as his understanding of the obligation of an oath. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no obstacle in the way of accepting the same and recording conviction of the accused on the basis of his testimony.

38. In Algupandi alias Alagupandian v State of Tamilnadu, (2012)10 SCC 451, the Supreme Court has laid down as follows:

"It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no liklihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."

39. Again, in Gul Singh v State of MP, 2015 (88) ACC 358 (SC), the Supreme Court clearly held that the testimony of a child witness cannot be rejected unless found unreliable and tutored. Conviction on the basis of sole testimony of a child witness is permissible if evidence of such child witness is credible, truthful and corroborated. Corroboration is not must. It is under rule of prudence. In the case in hand, PW-2 Shabab is 11 years old and the learned trial court has tested his intellectual capacity and was satisfied that the witness was able to understand the questions put to him and was able to give rational answers thereto. PW-2 has stated that he saw the accused firing on his father who sustained injuries. During cross-examination, he has denied that he was tutored by his sister and he has stated whatever he had seen. We find that, irrespective of his tender age, PW-2 has narrated the incident without any material contradiction or discrepancy. It was morning time and he was playing there with his father (deceased) and as such, his presence there appears to be natural and probable. Moreover, this case is not based on sole testimony of the child witness and PW-1 is another eye-witness who has proved the prosecution version.

40. Certain contradiction and discrepancy in the statements of two fact witnesses have been pointed out. PW-1 has stated that after committing the crime, the accused and others ran away from there leaving behind the playing cards and slippers at the place of occurrence and the same was taken into possession by the police. On the other hand, PW-2 has stated that the playing cards were taken with him by the accused after commission of the offence. When the IO was cross-examined, he stated that he did not find anything as such on the spot.

41. The submission of the learned counsel for the appellant is as per FIR, at the time of incident, the accused and others were gambling by playing cards on the door of the informant and after causing the incident, the accused ran away leaving behind the playing cards there. But, the site map Ext Ka-2 reveals that the place of occurrence is not on the door of the deceased. This argument is not sustainable as it has been alleged in the first information report that the informant, her father and other family members are resident of House No. 99/153. The site map shows that the door of the House No. 99/153 opens towards the place of occurrence. It makes no difference that two houses have been shown numbered as 99/153 as both the houses open towards the place of occurrence. Further, it makes hardly any difference if the playing cards were not found there. It was an open place and this possibility cannot be ruled out that the playing cards might have been collected by someone. The houses of two fact witnesses being situated there and opening thereof towards the place of occurrence, their presence at the time of incident is quite natural and it has been stated by PW-1 during her cross-examination that at the time of incident, she was standing on the door and the quarrel was taking place between her father and the accused.

42. PW-2 Shabab has stated that the playing cards were taken away by the accused after causing the incident. He was having playing cards in one hand and by the other hand he shot fire on his father. Learned counsel for the appellant has submitted that both the fact witnesses have given contradictory statement on this point. It has further been submitted that PW-2 has made improvement by disclosing the name of Miraz, Shabir and Noore that they were also playing cards at the time of incident but this fact was not stated before the Investigating Officer. This contradiction is hardly relevant as the fact that the incident took place has been correctly narrated by the witness. It was not necessary to disclose names of the persons who were playing cards at the time of incident and by not disclosing the names of all such persons to the IO, we do not find any material improvement in the statement. The witness has stated that the fire hit on the neck of his father and he fell down. The learned counsel for the appellant has submitted that the witness has stated that he continued weeping for half an hour there and on his cry, his sister Smt. Husnu Begum and his brother-in-law came there. He has stated that on his cry, after about one hour, they came. On this basis,learned counsel for the appellant has submitted that the presence of the informant at the time of incident and she being an eye witness becomes doubtful. It should be remembered that PW-2 is a witness of a very tender age and it is always possible that such contradiction may come during cross-examination. He might not have exact calculation of timing and, therefore, he might have stated that after one hour, the informant and his brother-in-law came there. We are of the view that these contradictions are not relevant nor fatal to the prosecution version.

43. On facts, we find that the contradiction, discrepancy or improvement mentioned above are not in respect of time, place, date and manner of the commission of offence. It needs to be mentioned that where own father is victim of deadly assault and the eyewitnesses were son and daughter of the deceased, in such a situation, the witnesses are not supposed to be perfectionist to give the exact account of the incident and narrate every aspect related thereto in a uniform way. Some sort of contradiction, improvement and embellishment is bound to occur in the statement. As laid down in State of UP v Naresh, 2011 (75) ACC 215 (SC), in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

44. In Gosu Jayarami Reddy and another v State of Andhra Pradesh; (2011) 3 SCC(Cri) 630, it was observed that Courts need to be realistic in their expectation from the witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details. A witness who is terrorized by the brutality of the attack cannot be disbelieved only because in his description of who hit the deceased and on what part of the body, there is some mix-up or confusion.

45. Further, in Parsu Ram Pandey v/s State of Bihar AIR 2004 SC 5068, Shivappa v State of Karnataka; AIR 2682, Ramchandaran v/s State of Kerala AIR 2011 SC 3581, it was held that minor discrepancies or some improvements would not justify rejection of the testimonies of the eye-witnesses, if they are otherwise reliable. Some discrepancies are bound to occur because of the sociological background of the witnesses as also the time gap between the date of occurrence and the date on which they give their depositions in Court. In Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 and Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 53, it was reiterated that minor contradictions in the testimonies of the prosecution witness are bound to be there and in fact they go to support the truthfulness of the witnesses. In view of the above, we are of the view that there is nothing in the deposition of the eye-witnesses on the basis of which their evidence can be discarded. We do not find any material contradiction discrepancy or improvement in the statement of the witness and there is consistency so far as narration of the criminal incident is concerned.

46. So far as the second limb of argument is concerned, we do not find it at all necessary that all the facts are required to be mentioned in the FIR. The purpose of FIR is to give information about commission of offence and it is not necessary to give every minute detail. In Jarnail Singh v State of Punjab, 2009 (6) Supreme 526, Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537 and Ramji Singh v State of UP, 2019 (4) Crimes 585 (SC), it has been held that the FIR is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. In our view, a detail description and sequence of incident constituting the offence is not at all required to be mentioned in the FIR.

47. It has been also argued that despite the presence of independent witnesses at the time of incident, none has been examined. A reference has been taken of the FIR and statements of PW-1 and PW-2 who have stated that in addition to them and Moieen, at the time of incident, Subhan, Ramjan, Noore and Suhel were also present and were seeing the accused gambling with Sabir, Meraz and Noore. It has been submitted that none of the four persons have been examined. Three of them have not been mentioned in the FIR. Even Subhan whose name finds mention in FIR has not been examined.

48. The question is whether it is necessary for the prosecution to examine all the fact witnesses? In Nand Kumar Vs. State of Chhatisgarh, (2015) 1 SCC 776 and Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537 Explaining the provisions of Sections 231, 311 CrPC and Sections 114 & 134 of the Evidence Act, the Supreme Court had ruled that prosecution need not examine its all witnesses. Discretion lies with the prosecution whether to tender or not witness to prove its case. Adverse inference against prosecution can be drawn only if withholding of witness was with oblique motive. In Sandeep v State of UP (2012) 6 SCC 107

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, Kripal Singh v State of Haryana, AIR 2013 SC 286, Bhagwan Jagannath Markad v State of Maharashtra, (2016) 10 SCC 537, Sadhu Saran Singh v State of UP, (2016) 4 SCC 357 and Mukesh v State for NCT of Delhi , AIR 2017 SC 2161, it has been held that if a witness examined in the court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined. Non-examination of material witness is not a mathematical formula for discarding the weight of the testimony available on record however natural, trustworthy and convincing it may be. It is settled law that non-examination of eye-witness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on statement of sole witness even if he is relative of the deceased and non examination of independent witness would not be fatal to the case of prosecution. 49. The learned counsel for the accused-appellant has submitted that the prosecution witnesses have stated that there was no previous enmity between the accused and the deceased. A quarrel took place between the two on the point of gambling and it has been stated by both the eyewitnesses. PW-2 has stated that between accused and deceased, jhnai jhnai ho rahi thi (quarreling) as her father was preventing him from gambling on his door. PW-2 has also stated this fac. Therefore, it has been submitted that upon the heat of this quarrel and provoked by this situation, the offence was committed and the same was without intention, planning and meditation and the same is covered within the purview of culpable homicide not amounting to murder punishable under section 304 of the IPC. 50. We have given a thoughtful consideration to this argument. It is difficult to agree with this argument as there was just verbal quarrel and the deceased was opposing gambling on his door and there was no physical altercation between the two. Any family person would naturally oppose to such gambling on his door. That the accused was carrying a pistol with him on the occasion shows his criminal nature and on such small quarrel, firing by him on deceased shows the extreme culpability on his part. It is pertinent to mention that firearm injury and injury caused by explosive substance are kept on different footing from the death caused by other weapon. Causing injury by firearm on the vital part of body from close range indicates the intention to cause death and extreme culpability on the part of accused, as, the moment fire is shot, it cannot be controlled by the person and there is no concept of slow firing as the pellets will come out with the mechanically designed speed and force. In case of other cutting or stab weapon, one can claim that enough force was not applied in causing injury. Instant death was resulted by the firearm injury and in such factual situation, the culpability is assessed on the basis of weapon used and the seriousness of injury caused on the vital part of the body. We do not find any force in the argument and there is nothing wrong in the conviction of the accused for the offence of murder under section 302 IPC. 51. In view of the above we find that prompt FIR has been lodged in this case; prosecution version has been supported by the account of two eyewitnesses which further finds support and corroboration by medical evidence; the presence of both the eyewitnesses at the time of incident and with the deceased is natural and their evidence is credible, consistent and trustworthy on which reliance has been rightly placed by the learned trial court. Once, it was established by prosecution that at the time date and place, the deceased was killed by firearm injury and the injury was sufficient to cause death, the limited question for determination was the role and involvement of the accused and that has been proved by two eyewitnesses and there is nothing on record to discard their evidence. As such, we do not find any perversity or illegality in the impugned judgment. The conviction and sentence awarded by the learned trial court is upheld. The appeal is, therefore, liable to be dismissed. 52. The Criminal Appeals is accordingly dismissed. 53. The accused-appellant Mahey Alam is directed to surrender before the learned trial court forthwith from where he shall be sent to jail to undergo the sentence. 54. Office is directed to send a copy of this order to the court below for communication and compliance along with lower court record.
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