Allahabad High Court
Sarfaraz Ali And 3 Ors. vs State Of U.P. on 31 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1923
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 20.5.2019 Judgment Delivered on 31.07.2019 Court No. - 44 Case :- CAPITAL CASES No. - 205 of 2018 Appellant :- Sarfaraz Ali And 3 Ors. Respondent :- State Of U.P. Counsel for Appellant :- Nazrul Islam Jafri,Dileep Kumar,Sadaful Islam Jafri Counsel for Respondent :- G.A.,Ajay Kumar Pandey,Sudhir Kumar Agarwal Connected with Case :- CAPITAL CASES No. - 206 of 2018 Appellant :- Arshad Respondent :- State Of U.P. Counsel for Appellant :- M J Akhtar,Sr. Advocate Counsel for Respondent :- G.A.,Ajay Kumar Pandey,Ashok Kumar Tripathi Connected with Case :- CAPITAL CASES No. - 207 of 2018 Appellant :- Fahrukh And Another Respondent :- State Of U.P. Counsel for Appellant :- Lav Srivastava,Rajan Srivastava Counsel for Respondent :- G.A.,Ajay Kumar Pandey,Sudhir Kumar Agarwal Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)
1. Heard Sri V.P. Srivastava, learned Sr. Advocate & Sri V.M. Zaidi, learned Sr. Advocate assisted by Sri Dileep Kumar and Sri N.I. Jafri, learned counsel for the appellants, Sri Satish Trivedi, learned Sr. Advocate assisted by Sri Ajay Kumar Pandey, Sri Sudhir Kumar Agarwal, learned counsel for the complainant and Sri S.K. Pal, learned Government Advocate assisted by Sri J.P. Tripathi, learned A.G.A. for the State.
2. This Criminal (Capital) Appeal No. 205 of 2018 (reference no. 8 of 2018) has been preferred against the judgment and order dated 20.11.2018 preferred by accused appellants, Sarfaraz Ali, Md. Sahid, Sadiq and Rashid against the judgement and order dated 20.11.2018 passed in S.T. No. 957 of 2010 and in connected S.T. No. 9 of 2011.
3. Criminal Appeal No. 206 of 2018 has been preferred by accused, Arshad against the same judgement passed in S.T. No.9 of 2011.
4. Criminal Appeal No. 207 of 2018 has been preferred by accused appellants, Farukh and Mumtaj against the same judgment in S.T. No. 9 of 2011.
5. In the said combined judgement of S.T. No. 957 of 2010 and S.T. No. 9 of 2011, the trial court has convicted the appellants Sarfaraz Ali, Md. Sahid, Sadiq, Arshad, Rashid, Farukh and Mumtaj under Section 302 read with Section 149 I.P.C. and sentenced with death penalty directing them to be hanged till death and fine of Rs. 1,000/- each and in default of payment of fine, one year additional R.I.; under Section 148 I.P.C., all of them have been sentenced with three years R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months additional S.I. each; under Section 452 I.P.C., all of them have been sentenced with three years' R.I. and fine of Rs. 1,000/- and in default of payment of fine, six months S.I. each; under Section 307 I.P.C. read with Section 149 I.P.C., they have been awarded life imprisonment. Accused appellants, Sarfaraz Ali and Md. Sahid have been further convicted and sentenced with three years R.I. and find of Rs. 1,000/- under Section 25 of Arms Act in S.T. No. 958 of 2010 and S.T. No. 959 of 2010 respectively in the same judgment.
6. The trial court has passed combined judgment in S.T. No. 957 of 2010 along with S.T. No. 9 of 2011, S.T. No. 958 of 2010 and S.T. No. 959 of 2010 on 20.11.2018.
7. Since all the appeals mentioned above arise out of the same common judgment, in the interest of justice, all the three appeals are being disposed of jointly by us.
8. The prosecution case as disclosed in the F.I.R. is that the brothers of informant i.e. Naseem and Khalil (P.W.3) had had a quarrel about seven to eight days prior to the present occurrence with Sadiq S/o Iqbal of the same village which was got settled due to intervention of the villagers but Sadiq had given a threat that he would see them. Due to the said animosity on 27.2.2010 at about 2:00 p.m., Sadiq (A-1), his brother, Sahid (A-2) and others of his family i.e. Arshad (A-3) S/o farzullah, Rashid (A-4) S/o Isfaq, Sarfaraz (A-5) S/o Shaukat, Farukh (A-6) S/o Islam, Mumtaj (A-7) S/o Ismail, all residents of village, Harsauli came there, out of whom, Sadiq was armed with country-made gun and rest of them were armed with country-made pistols, at the house of informant and Sadiq abusingly uttered 'sale naseem tujhe dekhna hai' and entered into the informant's house and started making fire with an intention to kill in which his brother, Naseem, Khalil, Raiyyan and his nephew, Sakir received fire arm injury. Informant was also fired upon but he saved his life by fleeing from there and concealing himself. These accused believing that all the brothers of the informant and his nephew had died, went away from there. This occurrence was witnessed by Ilias S/o Yaqoob R/o Makhyali who was informant's guest and ladies of the house i.e. Vakeela, Shabnam and Nerbun. The informant had taken brother, Naseem to government hospital, Muzaffarnagar where he was declared dead while the other brother, Khalil was fighting for his life. The medical examination was also conducted of injured, Raiyyan and Sakir. Due to this indiscriminate firing made by the accused, terror had gripped the village and the villagers had closed their doors and children and ladies were running here and there. No one could summon up courage to stop the accused from assaulting and, thereafter, the assailants fled away firing.
9. P.W.4, Constable Sahab Singh has stated in examination-in-chief that on the said written report, Exhibit Ka-1 being given at P.S., Shahpur on 25.02.2010 at 16:30 hours (4:30 p.m.), a Case Crime No. 163 of 2010 under Sections 147, 148, 149, 452, 307, 302 I.P.C. and under Section 7 of Criminal Law Amendment Act was registered against accused No.1, Sadiq, accused no.2, Sahid S/o Iqbal, accused no.3, Arshad S/o Farqula, accused no.4, Rashid S/o Ishfaq, accused no.5, Sarfaraz S/o Shaukat, accused no. 6, Farukh S/o Islam, accused no. 7, Mumtaj S/o Ismail all residents of village, Harsauli, P.S. Shahpur, District Muzaffarnagar by Constable Sahab Singh (P.W.4) who prepared chik F.I.R., Exhibit Ka-2 and made entry of this case in G.D., Exhibit Ka-3 at report no. 33 at 16:30 hours on 25.02.2010.
10. Sahab Singh (P.W.4) was provided recovery memo by the then S.H.O., Pramod Panwar, P.W.8 on 27.02.2010 of one country-made pistol of 12 bore, one country-made pistol of 315 bore, two cartridges of 12 bore and one cartridge of 315 bore which were recovered from accused, Sarfaraz Ali and Md. Sahid respectively and on the basis of the same, he registered Crime No. 165 of 2010 under Section 25/27 of Arms Act against accused, Sarfaraz and Crime No. 166 of 2010 under Section 25 Arms Act against accused Sahid. The chik F.I.R. of this case was prepared by him which is Exhibit Ka-4 and the same is paper no. 4 in file of S.T. No. 958 of 2010 (State Vs. Sarfaraz). The photo-copy of the concerned chik report is available on the file of S.T. No. 959 of 2010, State Vs. Sahid as paper no. 4 which is exactly the same as Exhibit Ka-4, which is being certified by him and marked as Exhibit Ka-5. On the basis of Exhibit Ka-4, he made entry in G.D. at report no. 23 at 15:10 hours, carbon copy of which is available in the file of S.T. No. 958 of 2010 which is paper no. 9/2 which was prepared by him in his hand-writing in same process. The said carbon-copy is proved by him by original G.D. and it is marked as Exhibit Ka-6. The photo-copy of the concerned G.D. is filed in file of S.T. No. 959 of 2010 which is paper no. 8/2, which this witness has certified to be the exact carbon-copy of original G.D. and has been marked as Exhibit Ka-7.
11. P.W.8, Inspector Pramod Panwar has stated in examination-in-chief that the investigation of this case was assigned to him on 25.2.2010. On the said date, he had written parcha no. 1 in which after copying the chik F.I.R. and G.D., recorded the statements of Constable Sahab Singh and Md. Irfan S/o Shamshuddin. He inspected the place of incident and prepared the site-plan, recovered one empty cartridge of 12 bore, one empty cartridge of 315 bore and took plain and blood stained soil and prepared its recovery memo. The site-plan is Exhibit Ka-19. The recovery memo of plain and blood stained soil was paper no. 8/1 in the file which was got prepared by S.I., Sri Bagesh Kumar Sharma at the spot at his dictation which was signed by P.W.8 and S.I. Bagesh Kumar himself and had already been marked as Exhibit Ka-12. Similarly paper no. 8/2, Fard in respect of recovery of one empty cartridge of 12 bore and one empty cartridge of 315 bore connected with Crime No. 163 of 2010 were prepared at the scene of occurrence at his dictation by S.I., Bagesh Kumar Sharma which is already marked as Exhibit Ka-14. One sealed bundle was presented in court pertaining to Crime No. 163 of 2010 which was opened with the permission of Court and out of it, one live cartridge of 12 bore was taken out from one panni which had mark on it as L.G.1 etc. dated 21.07.2010. On the bundle which was a white cloth, was marked as material exhibit-1 and the white panni was marked as Material Exhibit-2; live cartridge of 12 bore was marked as material Exhibit-3 and three other empty cartridges of 12 bore were marked as T-1, T-2 and were material Exhibits 4 and 5 respectively. There was another empty cartridge of 12 bore which was marked as E.C.-1 and it was marked as material Exhibit-6. From out of the white panni, one live cartridge of 315 bore bearing on it L.C.2 was taken out and was marked as material Exhibit-7. Further from the said panni, three blank cartridges of 315 bore were taken out which had mark on it as T.C.-3 and T.C.-4 etc. which were marked as material exhibits 8 and 9 respectively. The third empty cartridge of 315 bore was having written on it E.C.-2 and was marked as material Exhibit-10. From the white panni, one envelope of grey color was taken out on which pallets, P-1 was written, the envelope was marked as material Exhibit-1 and from out of the said envelope, one pudia of white paper was taken out which contained one small Pellet and date 21.07.2010 was written thereon; this paper was marked as material Exhibit-12 and the Pellet taken out of it was marked as material Exhibit-13. One grey colored envelope, on which white paper was pasted and deceased Naseem S/o Shamshuddin and others was written on it and one Pellet, which was sent after being sealed, was taken out and seal was also taken out and were marked as material Exhibits 14 and 15.
12. On 26.02.2010, he received post-mortem report of deceased, Naseem which was recorded in C.D. on 27.2.2010. On getting information from informer, accused Sarfaraz and Md. Sahid were arrested from their houses. From Sarfaraz, one country-made gun of 12 bore and one live cartridge of 12 bore were recovered and from Sahid, one country-made pistol of 315 bore and one live cartridge of 315 bore were recovered. The said articles were sealed on the spot and its fard was dictated by him to S.I. Anek Singh and was signed by companion police officials and accused Sarfaraz and Md. Sahid and one copy of it was given to each accused. The original fard is kept on file of Sarfaraz under Section 25/27 of Arms Act, P.S. Shahpur which is paper no. 5 and it was stated by this witness that the same was prepared at the time when country-made pistol and gun were recovered from both the accused, Sarfaraz and Sahid and the same is marked as Exhibit Ka-20. Further this witness has stated that out of it, one sealed bundle bearing material Exhibit-1, one country-made pistol and one 315 bore pistol were taken out which were marked as material Exhibits 14 and 15 respectively. Both were found in running condition. The statement of the accused were taken. On 28.2.2010, statement of injured, Raiyyan, Shaqib, witness Ilias, Smt. Vakeela, Smt. Shabnam, Smt. Jaitun were recorded who stated themselves to be eye-witnesses of the occurrence and supported the prosecution version as mentioned in F.I.R. On 17.03.2010, warrant under Section 82 Cr.P.C. was obtained against accused, Farukh, Arshad, Mumtaj, Rashid and Sadiq from court which were executed on 24.3.2010. The original inquest report and post-mortem were copied in C.D. in which it was recorded that Naseem had died by bullet injury as per doctor's version. The statement of witness of inquest report were also recorded which included Yaseen and Naseebuddin, Shabbir, Mehar Hasan, Subhrati. On 13.4.2010, he sent the case property, for being tested to F.S.L., Agra through Constable Surendra. On 21.4.2010, he recorded statement of witnesses, Tahir and Shaukeen who were witnesses of recovery of two country made pistols and also of recovery of plain and blood stained soil. On 11.5.2010, after getting sufficient evidence against accused, Sarfaraz and Sahid, charge-sheet was submitted which is Exhibit Ka-21. On 11.5.2010, accused, Rashid and Arshad surrendered before the court of C.J.M. On 18.10.2010, the statements of these two accused were recorded in jail with the permission of court. On 28.5.2010, the bail application was heard of accused, Sadiq, Mumtaj and Farukh in compliance with High Court's order and on 10.6.2010, their bail applications were rejected and they were sent to jail. On 14.6.2010, their statements were taken in jail. On 21.6.2010, all the three aforesaid accused were taken on Police Custody Remand (P.C.R.). On 6.7.2010, charge-sheet was submitted against accused, Sadiq, Arshad, Rashid, Farukh and Mumtaj which is Exhibit Ka-23.
13. Further this witness has stated that other sealed bundle was opened before court on which Vidhi Vigyan Prayogshala was written relating to Crime No. 163 of 2010 and out of it, one pant of black color, one banyan white, one cloth of brown color and two sealed bundles were taken out and were marked as material Exhibits 16, 17, 18 and 19 and this witness stated that these were the same clothes which deceased, Naseem was wearing at the time of occurrence. The two containers were wrapped in cloth which was marked as Material Exhibits 20 and 21. From out of the said container, cement, mitti and tickli were marked as material Exhibit-22 while from other containers, blood stained soil and ordinary soil was taken out and the bundle was marked as material Exhibit-23 and container was marked as material Exhibit-24. The blood stained soil was marked as material Exhibit-25. From out of the bundle, material Exhibit-1, the country-made pistol of 315 bore and live cartridge of 12 bore, which were recovered from accused, Sarfaraz Ali and Md. Sahid, were taken out regarding which, the accused had stated that by the said weapons, both of them had made fire upon the deceased, Naseem and others on 25.2.2010.
14. On the basis of evidence gathered by the prosecution, charge under section 148, 452, 302 read with 149 and 307 read with 149 IPC has been framed against the accused-appellants Sarfraz and Sahid on 20.5.20111. A separate charge has been framed under section 148, 452, 302/149 and 307/149 IPC against accused-appellants Sadiq, Arshad, Rashid and Farukh Mumtaj on the same day. On the same day two separate charges were framed under section 25 Arms Act; one against the accused Sarfraz and other against accused Sahid, to all the above charges, the above-named accused pleaded not guilty and claimed to be tried.
15. In order to prove its case, Mohd. Irfan as PW1, Raiyyan as PW2, Khalil Ahmad as PW3, Sahab Singh as PW4, S.I. Bagesh Kumar Sharma as PW5, Dr. Pradeep Kumar Mittal as PW6, Dr. Radheyshaym Verma as PW7, Inspector Promod Panwar as PW8 and Dy. Inspector Baljor Singh as PW9 have been examined.
16. The prosecution evidence was closed and the statement of the accused were recorded under section 313 Cr.P.C, in which the entire evidence gathered against them has been stated to be false and have taken the plea that they have been falsely implicated due to the enmity. In addition, the accused Sarfraz has stated that in respect of the occurrence, which happened with him, his father Shaukat had lodged a case crime no. 163A of 20110 under sections 307, 504, 506 IPC, in which charge-sheet has been submitted against Khalil, Raiyyan and Shakir and the case is pending in this very court. He had used force against the complainant side only in self defence and has filed the copy of the FIR of the said case, which is Exhibit Kha-1. The accused-appellant Sahid has initially stated that he has been implicated in the case only because of being of the same family. The same defence has been taken by the other co-accused Sadiq. The co-accused Arshad has additionally stated that on 24.2.2010 the daughter of his brother-in-law Smt. Shakeela, who was married in village Kalyanpur, had died and after hearing the said news, he along with his brother Musarraf had gone there on 25.2.2010 from their village Harsauli and had reached in village Kalyanpur at 8.00 A.M. and remained there till 3.00 P.M. Mohammad Farukh has additionally stated that he has medical store in the village and on the date of the incident, he had gone somewhere and was not available at medical store. Subsequently, he came to know that an occurrence had happened near the said medical store with Sarfraz son of Shakeel regarding which, case crime 163A of 2010 was registered under section 307, 504, 506 IPC, in which charge-sheet has been submitted against Khalil, Raiyyan and Shakir, because of this enmity, he has been falsely implicated. Accused Mumtaj and Rashid both have additionally stated that because of them being of the same family, they have been falsely implicated. In defence, from the side of the accused, Dr. Radhey Shyam Verma as DW1, Haqiqat as DW2, S.I. Bagesh Kumar Sharma as DW3 and Dr. Sukrampal Singh as DW4, have been examined.
17. On the basis of the above evidence, the trial court after having considered the same and in the light of the arguments made from both the sides, has convicted the accused-appellants and sentenced them as mentioned above. Now we have to see in the light of the argument made in this appeal as to whether the said judgment needs to be interfered with or should it remain as such.
18. In order to prove its case, from the side of prosecution, in support of the prosecution version as mentioned in the FIR, the informant Mohd. Irfan has stated as PW1, in examination in chief, that the occurrence took place on 25.2.2010 at 2.00 P.M. About 7-8 days prior to this occurrence, while playing volley ball, a quarrel had taken place between him and his brothers Naseem and Khalil on the one side and the accused Sadiq on the other, in which maar-peet had also taken place but after the intervention of some respected persons of the village, the matter was compromised between the parties, but the accused Sadiq had given a threat to his brothers that he would see them. On 25.02.2010 when PW1 was present at his house with his brothers namely, Naseem, Khalil, nephew Shakir, his mother Wakeela, Bhabi Jaiboon, Bhabi Shabnam and Ilyas and he and his brother, after coming from the field, were taking off fodder to be placed in the machine, then all of a sudden, at about 2.00 P.M. accused Sadiq armed with country made gun and others namely, Sahid, Arshad, Rashid, Sarfraz, Mumtaj and Farukh, all armed with country made pistol entered into his house and started abusing and uttered "Maro Salo Ko" and then all of them started making fire from their respective weapons upon the complainant side. In this assault, his brother Naseem, he himself, Khalil, Raiyyan and his nephew Shakir received fire arm injuries while he himself fled from there and concealed himself to save his life. The ladies of his house raised alarm and after hearing the sound of pistol and guns, a lot of people had assembled there coming from different lanes and thereafter the accused left the scene of occurrence giving threat. Thereafter, with the aid of his relative and family members, he brought his injured brothers to police chawki first by a vehicle and one police personnel had taken the injured person to the District Hospital, where Naseem was declared dead by the doctors as soon as he was seen. His other brothers namely, Khalil, Raiyyan and nephew Shakir were got admitted for being medically examined, thereafter, he had written report of this case in the hospital taking the same he had gone to police station Shahpur, where he got the case registered. He had identified Exhibit Ka-1 to be the same report, which he had given at the police station.
19. After drawing the attention to the above statement of this witness, learned counsel for the appellants had argued that the FIR was ante-timed because medical examination of the injured persons was conducted between 15-15 hours-15-30 hours, while the FIR had been registered on the same day at 16.30 hours, which would show that medical examinations of the injured, were already conducted before lodging the FIR.
20. In cross examination, this witness has stated that the name of his father is Shamsuddin, who is alive. He had three wives and from the first wife there was no child born. From the second wife, Iqbal was born and from the third wife, PW1, Raiyyan, Imran, Naseem, Saleem and Khalil were born. He cannot tell as to how much land is possessed by Shahmsuddin. Iqbal, who is son of Shamsuddin, was living separate while rest of the accused were also living separate. From among the children of his mother, Naseem, Khalil and Saleem were living at one place while others namely Iqbal, Raiyyan, Ifran and Imran were living in a house at a distnace leaving in between one house. All the brothers named above, were married.
21. He has further stated that one case under section 307, 504, 506 IPC is also pending in the same court, in which the present case is pending and the complainant of the said case is Shaukat son of Alauddin. The injured in the said case was accused Sharfraz son of Shaukat. The son of Sharfraz was also caused injuries in the said case, in the said case, after investigation, the police had submitted charge sheet. He has also stated that the accused of the said case were his real brothers namely, Naseem, Khalil and Raiyyan and one more injured in that case was his nephew Shakir son of Raiyyan. He has further stated that in the present case, his real brother Naseem has been murdered while Raiyyan, Khalil and Shakir have received injuries but of his own, he has further stated that the above-named case under section 307 IPC was a false one as no such occurrence has taken place.
22. It has also been stated by this witness that all the accused shown in this case, they all are descendant of Kallu and Jagira and that the father of Kalu and Jagira was Hatham. It is right to say that there is distance of one kms. between the residential places of the families of Kallu and Jagira and his (PW1) families. Further, he has stated that all his brothers do agricultural work but he does not know as to how much land they possessed and the said agricultural land is common, however, their food is cooked separately but they lived together. The ancestors of accused namely Kallu and Jagira were real brothers of the ancestors of PW1.
23. He has no knowledge as to who were playing the volley ball in the field and what were their names. His brothers Naseem and Khalil had not told him the name of those persons, who were playing there because he had not asked for the same. He had come to know about the quarrel on the same day in the evening but he had not made any written report nor oral at the police Chauki in that regard. Rashid son of Raja Din had met him in the evening of the incident, who had accompanied him to the hospital. He had met him in the Government Hospital, Muzaffar Nagar. At that time, there were many people of the village including Intijar son of Islam Uddin, his uncle's son Subrati and many others. Imran and Iqbal sons of Shamsuddin had also reached the hospital and with them one police personnel had accompanied them from Chawki. All the injured were in the same vehicle, which was Maruti 800 and all the injured namely, Khalil, Raiyyan and Shakir were sitting while Naseem was made to lie on his lap. Soon after 5-7 minutes of the occurrence, lot of blood was coming out from the wounds, which had made all their clothes wet. Among injured, only Naseem was unconscious while rest injured were conscious and were talking. It has further been stated that by the time they reached Muzaffar Nagar, they had felt that the Naseem was still breathing but when they reached the hospital at 3.15 PM, there Naseem was declared dead and two persons had taken away the dead body of Naseem. Other three injured namely Khalil, Raiyyan and Shakir were medically examined in front of him.
24. On the date of incident, Farukh was present at the said medical store where medicines are sold. The said medical store is situated in the house of Meharban son of Isab Uddin and adjoining to this medical store to the south of it, is a lane and thereafter is situated abadi and thereafter one or two lanes and then is situated the main road. From the house of accused, the medical store of Farukh was situated about 600 meters away and there was no other medical store in that vicinity.
25. The main door of his house is towards east, which had a shutter, which remained closed in the night. His house is constructed in the area of about 600 to 700 sq.yards in which he lives and his cattles are also kept there. On 25.2.2010 there were 5, 7 and 10 buffalos tied in that house. Inspection of the place of occurrence was made by the Investigating Officer in his presence, although he does not recollect its date and time. Perhaps, the Inspector was Bagish Sharma, whom he had shown the place of incident, where cartridges were lying and his brother Naseem was lying. The places where Pellet embedded in the walls, were also shown and the place from where the accused had run away, after having made fire was also shown. The Investigating Officer had not got the photography done of the said place, where Pellet hits wall. After verandah, there is one gallery and on both sides of it, there are rooms. The ladies of his house live in curtains and thereafter of his own he has stated that he has three storyed residential house. On the third floor of which, ladies live. On the date of incident as well as prior to that, there was a door installed in the gallery of his house, which used to remain open during the day but the same remains, closed in the night. After the said gallery, lies a Sahan, in which cattle are tied. In the said veranda, there is no residential room and due to shed, cattle are tied in the said veranda and there is no other kind of construction. For going upto the third floor, there is only one passage, which goes through stairs. On the third floor, there were six rooms, out of which four had exit towards north side while rest had exit towards west and east sides. There was no curtain in those rooms but there were doors in them. He had not shown those rooms to the Investigating Officer. In the stair case, which leads upto the third floor from the ground floor, there is no door at the ground floor. There is one room constructed at the third floor, which remains vacant and the same is used only when guests come. In his house, after the gallery, there is a Sahan in which cattle are tied, which place is 'Kachcha'. Gallery is cemented and Varanda is also cemented. After veranda, there is Sahan and upon that 'kharanja' is laid. For looking after the cattle, he has not engaged any servant. Near the stair case, one fodder cutting machine, which is run by electricity, is also installed, which is used sometimes for the said purposes. All these places were shown to the Investigating Officer at the time of inspection.
26. This witness has further stated that after the gallery, varandah is about 11 ft. wide and after the said veranda, there is a gallery, which is about 11 ft. long and about 9 to 10 ft. wide. Just after the gallery, there is a kachcha floor and about 3-4 ft. to the west of it, there is kharanja. All the four persons namely, Khalil, Raiyyan, Shakair and Naseem had come from the field of Sugarcane. They had come in a buggi, which was parked outside the varanda and all the above four persons were emptying the buggi. The Investigating Officer was shown the said place. On the said day, no altercation/conversion had happened with the accused. He has further stated that after the incident of volley ball, compromise had taken place. There was no social relationship between his family and the family of the accused. The accused were living about seven meters away near Harsauli road. The agricultural lands of the informant and the accused were adjoining to each other. None of the seven accused had met him since the date of incident. He cannot tell as to from which direction the accused had entered the Gher, because at that time, they were taking off the 'Gole' for the purposes of cutting the fodder. They were cutting the said fodder in the machine, which was installed beneath the stair case and the said machine was being run by hand by Khalil and Raiyyan.
27. Further, this witness has stated that he does not know exactly about Shakir as to where he was and what was he doing. When he had come after taking water, the accused had started the incident and as soon as they came and started abusing then Naseem, after having seen them, ran towards the stair case. With abusing, simultaneously all the accused reached near the fodder cutting machine armed with pistol while Sadiq had gun, which was a licensed one. He had no licensed weapon in his house. He has knowledge about the bore of the country made pistol. Soon after coming, the accused started making fires but he could not see whether they were making fires after taking aim or not. He has seen the country made pistol of the accused by which about 14-15 fires were made and soon after firing, the complainant side started fleeing but accused chased them. The place where the fodder machine was being used, the injured Naseem, Khalil, Raiyyan and Shakir had received fire arm injuries, which were caused to them while they were fleeing. Raiyyan, Khailil and Shakir had scaled northern side wall and had jumped over the other side of the wall to save their lives but he cannot tell whether the accused had chased them or not. He had not alleged this fact in the report that Khalil, Raiyyan and Shakir had run towards north after scaling the wall. The Investigating Officer has recorded his statement and to him he had told that after getting injured by fire, the above three persons had fled from there after jumping over the northern, wall which might have been 4-5 ft. high. At the time when this occurrence happened, he (PW1) was standing there and thereafter has stated of his own that he was in the stair case where there were small wall. He cannot tell as to whether he had told the Investigating Officer about the same nor had he mentioned the same in his report. When the fires were being made, he did not see as to which injured had received fire arm injury at which place because he was running away from there to save his live and after fleeing, the injured Naseem had straightway reached the third floor of the house. All the seven accused had not gone to the third floor making fires, rather none of them had gone there. He has further stated that the fire had hit the third floor and then again stated that possibly did not get hit. He was put a question as to whether all the seven accused had reached the third floor making fires, to which he responded that Sadiq, Sahid, Rashid and Sharfraz were going by the stair- case to the third floor but none of them could reach. The fire was made from the stair case.
28. Further, this witness has stated that Naseem had received fire arm injury on the third floor when he had turned around to see but he could not see as whose shot had hit Naseem. He had told the Investigating Officer that injury was caused on the third floor. He does not known as to whether the blood was lying or not at the place where machine was installed or at the stair case, which led to third floor. Subsequently, he had seen blood lying at the third floor but had not seen any blood lying near fodder cutting machine. All the accused had made fires but cannot tell as to what was the distance between the injured and the accused when the fire was made. The accused had halted for about 5-7 minutes while the fire was being made and two empty cartridges were found. The empty cartridges were found near the machine but he had not seen them himself. The said empty cartridges were of the gun. When the Investigating Officer had come, Naseem had received gun shot injury on the upper portion of his chest while Khalil had received injury on his face and hand as well as on chest. Shakir had received fire arm injury on his forehead while Raiyyan had received injuries on the finger of his left hand. Khalil had received fire arm injury on his hand and chest as well as on his face. Khalil, Raiyyan and Shakir were got admitted in Muzaffar Nagar hospital from where Shakir and Raiyyan were discharged while Khalil was admitted. Khalil was referred after 5-7 days to some other hospital. He had remained in the hospital for about 5 days. Khalil, Raiyyan and Shakir, whether they were operated or not after having received arm injury, he does not know although all the three had been X-rayed but he does not know its outcome. He has further stated that Exhibit Ka-1 was written by him in the hospital at 3.30 p.m. on the date of incident.
29. This witness has further stated that Ilias S/o Yakoob R/o Makhiali was real brother-in-law (sala) of his deceased brother Naseem and further stated on his own that the wife of deceased, Naseem i.e. Shabnam started living with Rashid S/o Raiyyan after the death of Naseem meaning thereby that she had contracted marriage with him. He was also real nephew of deceased, Naseem.
30. He had not given information of this occurrence to any of his relatives. The occurrence had happened at about 2 p.m. but he did not make any mention of it to anyone nor did he divulge the names of the accused, although he went on to say that everyone had seen the occurrence and he had lodged the report as well by name.
31. He has further stated that indiscriminate firing was made by the accused, no fire arm injury was caused to any of the animals which were tied there in the 'gher'. The marks of bullets had been caused in the walls particularly in northern wall where 5 to 7 bullets had hit. Such marks were shown by him to the I.O. but he does not recollect whether empty bullets were lying there or not. He had saved his life by concealing himself in room at the second floor and had closed the doors. There was no lady in the said room as the ladies used to live in the rooms on the second floor. The doors of the rooms were not closed. On the second floor there were six rooms constructed out of which two were towards east and rest were towards south. The accused had only made fires upon him although he did not utter any word except that Naseem was abused by them. The neighbours had closed the doors of their houses and none of them had come to the spot at the time of occurrence and had reached only after the occurrence. Further he has stated that in respect of Sarfaraz having received injuries, he was told after he had lodged the report, by S.O. but he does not recollect the exact time when it was told. The case in respect of Sarfaraz having received injuries was also being contested in the same court in which his real brothers Khalil, Raiyyan and his nephew, Shakir had got themselves bailed out. He has no knowledge whether any medical board was constituted for medical examination of Sarfaraz nor does he has knowledge whether Sarfaraz had received any treatment at Meerut Medical College after having received fire arm injuries.
32. He has further stated that on the stair-case railing has been installed after raising wall of bricks and the said railing begins from the side where machine was installed. The stair-case was three feet wide. When the accused reached on the third floor, they were continuously firing while chasing Naseem (deceased). Accused ascended stair-case while making fires. Naseem did not receive any injury till he reached the third floor and whatever injuries were received by him were caused to him only when he reached the third floor. Some accused had stayed back near the machine but he cannot say whether they were making fires or not. In his memory, no empty cartridge was found on the third floor. How the Naseem was found lying i.e. whether with face down or face up etc., he cannot tell. Accused were continuously making fire upon Naseem so that no one could come near them. When the accused had left, his mother, brothers and various other persons had taken Naseem to the ground floor in injured condition where he was made to lie on a cot. Naseem was not speaking anything; his clothes were smeared with blood. When Naseem was lying on the cot, the remaining injured, Khalil, Raiyyan and Shakir were also brought there by the villagers after lifting them. All the three had jumped over the wall and were lying in the other house, the said house was to the north of the house in which machine was installed and between them, there was house of Jabbar. The house in which they were lying also belonged to them (informant side). In house of Jabbar, these injured were lying there, blood was also found spread there. He had shown blood lying on the third floor and also in the other house as well as on the clothes, to the I.O. but the clothes were not taken into possession by him (I.O.).
33. He has further stated that he had told I.O. that he had a heated argument with accused Sadiq followed by abusing and 'marpeet' but if the same has not been recorded, he could not tell its reason. He had also told I.O. that his brother after having returned from the field was taking off the fodder and was placing it on the machine but if the same was not recorded, he cannot tell its reason. He had also told I.O. that ladies of the house raised alarm and after hearing the sound of fires, lot of people had assembled there, whereafter the accused fled from there making fires but why the same was not recorded by the I.O. in his statement, he cannot tell its reason. He had also told I.O. that he had taken his injured brothers in a vehicle and had gone first to the police chauki in the village and from there one police personnel had accompanied them to the hospital but if the same has not been recorded, he cannot tell its reason. He cannot tell as to for how long, he stayed at P.S., Shahpur after reaching there but stated that he might have stayed there for about half an hour. He does not remember whether police had already arrived in the village before he reached there. When he returned home, he did not find any of the injured i.e. Khalil, Raiyyan and Shakir in the village and he does not remember as to whether any of these injured had returned to the village by the evening. When the dead body of his brother, Naseem came there at that time, Raiyyan and Shakir were present there. For the post-mortem of Naseem, he had gone. He was not present at the time when his panchayatnama was filled up nor did he see any Inspector or any police personnel filling up panchayatnama. He had reached the post-mortem house next day in the morning at about 8:00 a.m. and had found the dead body there but does not recollect whether any I.O. / police personnel was present there or not. He has denied not to have seen the occurrence and that he was making false statement due to the injured and deceased being his family members. He has also denied that after having consulted the police personnel, he had lodged the F.I.R. on the next day of the occurrence. He has also denied the suggestion that about ten days prior to this occurrence, quarrel had happened between the son of Shaukat i.e. Sarfaraz and his brother, Naseem (deceased) in respect of weighing of sugar-cane. He has also denied the suggestion that on 25.02.2010 at about 2:00 p.m., Sarfaraz (accused) had gone to take medicine from medical-store of Farukh and at that time, Naseem, Khalil, Raiyyan and Shakir (complainant side) were having lathi, katta and gun in their hands and by showing fear of these weapons, Sarfaraz was tried to be dragged by them in their house and that in the lane which was adjacent to their house, Sarfaraz was caused injuries by lathis by Khalil, Raiyyan and Naseem who were having guns, had caught hold of Sarfaraz and then Shakir told his companions that he should be shot and at this instigation, Shakir made fire upon Sarfaraz with an intention to kill by the katta which he was having in his hand. It is also wrong to say that as soon as Naseem was about to make fire, Sarfaraz snatched the gun from the hands of Naseem, whereafter all the said four persons (complainant side) chased Sarfaraz then Sarfaraz made fire from the said gun in order to defend himself which was snatched by him and somehow could save his life and returned home. He has denied the knowledge that Sarfaraz was medically examined in Meerut Medical College. It is also wrong to say that the real incident is the case which was lodged by Shaukat against the complainant side.
34. For appreciation of evidence of P.W.1 and other-witnesses, it will be essential to read and evaluate the same in the light of site-plan which is Exhibit Ka-19. In this site-plan, by arrow is shown the passage from where the accused came armed with guns. By 'A' is shown the place where the accused are stated to have made indiscriminate firing. By another arrow with zero at the tail end of it is shown the passage by which the injured are stated to have fled to defend themselves, by 'X' is shown the place where deceased received fire arm injury, which is the third floor of the house of the complainant side and he is shown to have received the said injury when he looked back upon the accused while running; by 'D' and 'E' are shown the places from where one empty cartridge of 12 bore and one empty cartridge of 315 bore were recovered. By 'B' is shown the place where plain-soil and by 'C' is shown the place from where blood stained soil was taken into possession. By 'F' is shown the ground floor of the house of complainant side and by 'B-1' is shown the second floor and above, of the complainant side.
35. This witness has proved the motive of the occurrence by stating that about 7 to 8 days ago prior to the occurrence that took place on 25.02.2010, the quarrel had happened between the deceased, Naseem and Khalil of the complainant side with accused Sadiq while playing volleyball in which both the sides had indulged in abusing each other and a little marpeet had also taken place but the matter was got compromised by the respectable persons of the village but at that time accused, Sadiq had given threat to deceased and his brother, Khalil that he would see them and in, pursuance to this motive, the occurrence was given effect to from the accused side on 25.02.2010 when P.W.1 and his brother after having come from their field were taking off fodder from the vehicle and were placing the same on fodder machine. Then, all of sudden, the accused named above came there armed with country made pistol and started abusing them exhorting 'maro salo ko' which was followed by indiscriminate firing made by them. In this assault, his brother, Naseem (deceased) and other brothers i.e. Khalil, Raiyyan and Shakir also received fire arm injuries while P.W.1 himself saved his life by concealing himself somehow. This witness has made clear in cross-examination that Naseem immediately ran towards the stair-case to save his life and rest of the three injured had jumped over the wall which was to the north of the said stair-case and had landed in the place where there was house of Jabbar after getting injured and it is apparent that this witness has proved his presence on the place of incident and according to him, by the side of the said stair-case, there was fodder cutting machine where the deceased and his brothers (injured persons) were involved in cutting of fodder when this occurrence took place and the deceased fled towards the third floor of the house and he was followed by the accused persons who was continuously making fire upon him and fire was also made by them from the stair-case and ultimately the deceased got seriously injured at place shown by 'X' in the site-plan which is third floor of the house of the complainant. This witness has denied the cross version of the accused that on the said date i.e. 25.02.2010 at about 2:30 p.m., Sarfaraz (accused) had gone to take medicines from the medical-store of Farukh where Naseem (deceased) and three injured (Khalil, Raiyyan and Shakir) who were armed with lathis, country made pistol and gun tried to drag Sarfaraz into their house which was located adjacent to the said lane where the said shop was located and it was in self-defence that Sarfaraz had made fire upon the deceased by the gun which was snatched by him from Naseem when he was about to make fire upon him and also denied that Khalil, Raiyyan and Shakir had made any fire upon Sarfaraz with an intention to kill.
36. During argument, the main emphasis was placed by the learned counsel for the appellants upon the fact that the occurrence did take place but not in the manner as has been stated by the prosecution rather it took place as stated by the defence side and in-fact the injury caused to the deceased were caused in self defence by the accused side and that cross case was registered against the complainant side in which they have been also held guilty under Section 307 I.P.C. We would give opinion in respect of the fact as to whether the version set-up by the defence is a cross-case or not after having evaluated the entire evidence as to whether if there were cross-cases, as to which side was aggressor or whether it was a free fight.
37. P.W.2 who is also an injured eye-witness of the occurrence i.e. Raiyyan has stated in examination-in-chief that about three years ago when he was playing volleyball in the field of kabristan, a quarrel took place at about 4:00 to 5:00 p.m. between Sadiq (A-2) on the one hand and Khalil (P.W.3) & Naseem (deceased) on the other which was got compromised by the villagers but despite that Sadiq had given threat to Naseem that he would see him and three days thereafter when he along with others were coming home after taking fodder and the same was being taken off of the 'buggie' near the fodder cutting machine, right then Sadiq, Arshad, Sahid, Sarfaraz, Farukh, Rashid and Mumtaj came there and told 'sale naseem' and, thereafter started making indiscriminate firing in which Raiyyan, Shakir and Khalil got injured. This occurrence took place at about 1:45 p.m. Sadiq was having gun while others were having pistols. All these accused were of his village who knew him from before and they were all recognized by him in the Court. Soon after receiving injury, P.W.2 fled to save his life after jumping over the wall while his brother, Naseem (deceased) ascended the stair-case but accused pursued him and made fires upon him from the stair case. His brother, Irfan was also fired upon. Naseem was left in dead condition by the accused and fled from there. On the spot, P.W.2, Khalil, Shakir, Vakeela, Jainub, Shabnab and one other relative, Ilias were present who have seen the occurrence. About two minute thereafter, Irfan came near P.W.2 and stated that Naseem was in serious condition and should be taken to the hospital so that his life could be saved. Thereafter, all of them took Naseem and on way one constable was found at police chauki, Harsauli, he (police personnel) also sat in the said vehicle and as soon as they reached the hospital, Naseem was declared dead while P.W.2 Khalil and Shakir were medically examined in district hospital in Muzaffar Nagar. Khalil was admitted because of serious condition and the F.I.R. of this case was lodged by his brother, Irfan.
38. In cross-examination, this witness has stated that it is right to say that the father of accused Sarfaraz i.e. Shaukat has lodged a case against P.W.2, Khalil, Naseem and Shakir under Sections 307, 504 and 506 I.P.C. at P.S., Shahpur but he cannot tell whether the said occurrence is of the same time and date which has been stated to be the date and time of the present occurrence but the police of Shahpur has filed charge-sheet in that case which is pending in this Court. The injured in that case is Sarfaraz.
39. Further this witness has given the same genealogy of Shamshuddin which has been narrated by P.W.1 and has also stated about the wife of Naseem having married the son of Raiyyan as was stated by P.W.1, hence the same is not being repeated.
40. As regards to the manner of occurrence, he has stated that the occurrence of firing had closed at 2:00 p.m. and soon after the occurrence, police had come there after 5 to 7 minutes. Irfan (P.W.1) had given full details of the said occurrence to S.O. Shahpur. He (P.W.2) was not in conscious condition when the police had come as he has suffered injury in his hand, thereafter, said that he was fully conscious. Lot of villagers had assembled there. When the police arrived, at that time, Naseem was lying at the third floor of his house in injured condition but, thereafter, stated that police had not arrived by then and had not gone to the third floor. He further stated that all the injured had gone in Maruti Car and had reached the government hospital by 2:30 p.m., at that time one constable of Shahpur was accompanying them. As regards the motive, he also referred to the earlier occurrence and stated that 3-4 days after the earlier occurrence in which quarrel had happened in the field of Kabristan, the present occurrence was given effect to by the accused. Prior to this occurrence and subsequent to the compromise between the parties, no other dispute had arisen between them nor any meeting took place between two sides in village. No written report was got lodged in respect of the quarrel which had happened during playing volleyball. This witness has also narrated about his mother being third wife of his father, therefore, the genealogical aspect mentioned in the statement of P.W.1 is not being repeated here.
41. As regards the location of medical-store where incident of cross-case is said to have taken place. This witness has stated that the medical-store which is near the house of deceased, Naseem belongs to Kale S/o Shaukat but he does not recollect the direction in which it is located from the house of Naseem. His house is located in the lane which is going adjacent to the said medical-store which is located in the house of Meherban.
42. Further he has stated that his relatives, Rashid, Shaukeen, Saiyad and Ilias had come to the place of incident soon after receiving news but he cannot tell the exact time of their arrival as he had come to Muzaffar Nagar. None of his relatives had gone to Muzaffar Nagar with him. They had gone to Muzaffar Nagar by his maruti car in which five men i.e. Irfan, P.W.2 himself, Khalil, deceased (Naseem), Intezar had gone which was driven by him (P.W.2).
43. The vehicle was parked at the same place where the incident of firing had started and soon after the occurrence i.e. within 15 to 50 minutes thereafter, they had started from the said place. One constable was also taken along from the check-post who was provided to accompany them by S.O. Pramod Kumar.
44. The dead body was not taken down from the roof. The dead body was brought down by him, Irfan and Khalil by lifting the same which was of Naseem. About two to three constables had come at about 3 ¼ p.m. but only one constable had accompanied them to the hospital. S.O. had taken full information from village, Harsauli about the occurrence, whom everything was told by him and Imran which was noted by him in his diary at about 3:15 p.m. At the time of medical examination, the S.O. was present in the hospital.
45. He does not remember as to in whose (S.O.) presence, the panchayatnama was filled up. He had accompanied the dead body of Naseem from the government hospital on the next day. Along with him was Irfan and his son Shakir also. Khalil was got admitted. He does not know as to whether S.S.P. had spoken anything to Sheher Kotwal regarding lodging of the report. He along with others had gone to the post mortem house in the night after crossing the bridge and there was no police personnel. He, Irfan and Shakir were present there.
46. He has further stated that all the 7 accused were armed who had made fires. Sadiq was having a gun but does not recollect whether it was single barrel or double barrel gun while rest of the accused were having small arms but cannot tell their bores. All the accused had come in their 'Gher' from the passage which went north-south. The gallery of the said 'Gher' is about 8 feet wide and after this gallery, there is some vacant space left for tying the animals, the area of the said place is around 300 yards. There is one stair-case to go up-stairs in the said house which is located in southern direction in the gallery. In this boundary, the stair-case is built for going to second floor and third floor of the house. In this very 'Gher', the fodder cutting machine is installed adjacent to the stair-case but between the said machine which is electricity operated and the gallery, this fodder machine is installed at a distance of 15 paces from the said stair-case by the side of gallery. The floor of the said 'Gher' is 'kutcha' while gallery is having 'kharanja' and just prior to the gallery towards road side is varandah which also has a 'kharanja' which means that it has bricks spread. The buggie on which they had brought the fodder was parked on the main road adjacent to the 'kharanja'. About 10 minutes had passed since they had brought the fodder in buggie when the occurrence happened and they were in process of taking off the fodder which was to be cut through fodder cutting machine. In that very 'gher' cattle were also tied on the other side. By the side of stair-case, there was a wall about 5 to 6 feet high. He had not seen accused entering into the 'gher' as he was busy in cutting of grass which was cut for about 5 minutes. All that accused had come at that very place where fodder machine was cutting the fodder. The accused had abused Naseem saying that 'Naseem bahar nikal'. Naseem did not respond and then firing began. All the accused had not surrounded them rather they were on the one side from where they had made fire. He told that at the time when fire was made, there was a distance of about 20 paces between them but he cannot tell as to for how many minutes the firing continued but it was indiscriminate firing being made continuously during which time many persons of 'moholla' had come but their names, he cannot reveal. At the place where fodder was being cut, nobody had got injured nor had he felt any blood spread over there although stampede had followed the firing. He does not recollect as to on which particular part of the body, injured had received injuries but Naseem had received injuries on the upper portion of the body while he, P.W.2 had jumped over the wall. There was one room at the third floor of the house which has doors on all sides. There was none in the said room at that time. He had not gone to the third floor but he had gone there only to call Irfan. At that time Naseem was lying dead over there. He and Irfan had brought Naseem down, who was having lot of fire arm injuries on his fore-head, chest and neck. Lot of blood was also lying there. Shakir had received injury on his fore-head while P.W.2 had received injury on his left hand and fingers on the rear portion and not on any other part of the body. No Pellet was extracted from the said injury. He further stated that he had received bullet injury which was taken out by doctor and his hand was bandaged but he does not know whether the said bullet was sealed by the doctor or not. Naseem had received many injuries of bullet. Although he did not have any injury of pallets on his body, rather had received many bullet injuries. Khalil and Shakir had not received any Pellet injuries but had received many bullet injuries. Khalil was also medically examined in front of him and the said bullets were taken out by the doctor during medical examination but he does not recollect whether they were sealed or not. He did not pay attention as to whether there were any blank cartridges lying. Khalil had become unconscious on the spot who was picked up and was taken in a vehicle. He does not recollect whether Khalil had received injuries in his chest. He does not know where the ladies of the house were present at that time. Whatever fodder was being cut, was lying there, he had told about the said fodder cutting machine to the I.O. but does not recollect whether he had shown that the same was operable by electricity. He had shown the said machine also to him. If all these facts have not been recorded by him, he cannot tell its reason. At that time, there were 5-7 cattle also tied there when firing was made. The fire was being made inside and outside of the house. By inside, he meant store where the firing had begun which belonged to Kale Khan in which direction the said store of Kale Khan was located from his house, he does not know nor does he know whether accused had come from the side of adda towards their house. The place from where they had started making fire, the commotion had started. When he came out after hearing the said commotion, the accused continued to make fires for about 4 to 5 minutes inside the 'gher'. They were coming from the side of store making fires, at that time the marks of fire were made in the house of Umar, which was located in front of the primary school as well as in his own house. He did not see any cattle receiving any injury although he had not seen marks of fires on the wall.
47. He does not recollect as to for how many days Khalil and Shakir remained hospitalized for how many days because he had absconded after the occurrence because Sarfaraz' father Shaukat had lodged a report to the effect that he was fired upon by P.W.2 and his companions. In the case in which Sarfaraz was stated to have received injuries, F.I.R was lodged at the police station in which he had got himself bailed out and the said case is still proceeding in the same court. The other case which was proceeding against him, in that, Afroz, Musharraf and Gaiyur are witnesses. The real brother of Gaiyur i.e. Mumtaj is an accused in this case. The name of real grand father of Sarfaraz is Allaudin @ Bhura who has sons namely Ali Mohammad, Fatehdeen, Zameer Hasan in complaint of the cross case of Shaukat whose son is accused Sarfaraz.
48. It is right to say that all the accused live separate and also do agricultural work separately. He had told I.O. that in the field of Kabristan, a quarrel had taken place while playing volleyball between Sadiq, Khalil and Naseem at about 4:00 p.m. which was got compromised, although dispite that Sadiq had given Naseem a threat to see and three days thereafter, this occurrence took place in the manner which has been stated above by him. He has denied that he had not seen the occurrence and was making false statement.
49. This witness has also proved the occurrence as stated by the prosecution that on 25.02.2010 at about 2:00 p.m. by all the seven accused named above who are stated by him to be armed with fire arm weapons. It is also proved by that the firing had started near the place where fodder machine was installed and at that time the work of cutting fodder was going on which was being done by deceased and as well as by the three injured named above have stated to have received injuries to jump over the wall situated to the north of the stair-case which led to the third floor of the house of the complainant side, where the deceased, Naseem had tried to flee to save himself but the accused had pursued him in that direction and had made several fires upon him from the stair case and finally, he received injuries by which he lay in badly injured condition on the third floor from where he was brought down by the P.W.1, P.W.2 and other companions for being taken to the hospital. Lot of argument was made in respect of there being no possibility of the deceased having received injury in the manner as it is being stated to have been received because according to the prosecution witnesses, the deceased was fleeing towards the third floor and he was being chased by the accused and continuous fires were being made upon him. But there is discrepancy in the statement of P.W.1 and P.W.2 with respect to the fire having been made at the deceased on third floor, because it has come in evidence of P.W.1 that fire was made from the stair-case and the accused had not gone up to the third floor while P.W.2 at one place had stated that the accused had chased the deceased and had made fire upon him at the third floor as well. With respect to blood being found at the place 'X' which is shown in the site-plan at the third floor, no evidence appears to have been gathered by the I.O. to have found blood there which has been shown to have been collected by him from place 'C' where he had found the blood smeared soil which is on the verandah from where blood smeared soil was collected by him. By citing this, it was argued that the place of occurrence was not proved by the prosecution and in no way, the injuries could have been caused to the deceased at the third floor from the place shown by the I.O. i.e. 'A' from where the indiscriminate firing is stated to be made upon the deceased as well as injured persons. We are of the view that the presence of P.W.2 cannot be disbelieved on account of the said discrepancy pointed out from the side of defense because in such kind of occurrence where large number of accused are involved in making fires upon the complainant side, it would be very difficult for the injured as well as other witnesses, who are present on the spot, to have witnessed as to who out of the accused was in particular making fire upon whom and the injury to the injured as well as to the deceased was caused by which accused. It is quite apparent from the statement of P.W.2 as well as P.W.1 both that when this occurrence happened, they tried to save their live by running from the place where they were cutting fodder which was on the ground floor in the 'gher' and three out of them who had received injuries saved themselves after crossing boundary to land up in the place of Jabbar while the deceased tried to save himself by going up stairs on the third floor but in badly injured condition in the said firing, he lost his life before he could reach the hospital, therefore, place of occurrence would be treated to have extended from the place where the fodder machine was installed and the incident started up to the place where dead body of the deceased, Naseem was found.
50. The third injured eye-witness is Khalil who has been examined as P.W.3 and in the examination-in-chief, he stated the same facts which have been mentioned by P.W.1 and P.W.2 and this witnesses in examination-in-chief has subsequently stated that accused had followed, Naseem through stair-case up to the third floor and there, Naseem was fired upon and that after the occurrence, the accused fled from there. During this occurrence, his brother, Irfan was in the house and had seen the accused and after fleeing from there, he had saved his life. He has clearly stated that in the firing made, he, Raiyyan and his nephew, Shakir had got injuries and all the three including himself had crossed over the boundary to save their life.
51. In cross-examination, this witness has admitted that on the date of incident, accused, Sarfaraz S/o Shaukat had received fire arm injuries regarding which his father, Shaukat had lodged F.I.R. against the deceased, Naseem, P.W.3 himself, his brother, Raiyyan and nephew Shakir in which charge-sheet was submitted and they had got themselves bailed out.
52. He has further stated in cross-examination that on the date of incident, Farukh medical store was located five to seven houses away from his house but he does not recollect whether on the date of incident the said medical store was open or closed. Farukh is not related to the accused. After the school, the first house next to the medical store is that of Farukh, exit of which is towards the house of P.W.3 and his entire family lives in that house. There was no enmity between complainant side and Farukh.
53. This witness has also reiterated in cross-examination the same facts as narrated by P.W.1 and P.W.2 with respect to a quarrel having taken place between the deceased, his brother and the accused, Sadiq while playing volleyball and has also corroborated the version that the compromise had been effected between the parties. In the said marpeet, some internal injuries were suffered by the complainant side but no medical examination was got done nor any report was lodged, therefore, this witness has also proved the motive of enmity between two sides because of earlier happening, although he has failed to narrate the exact time when the said incident happened. The statement with respect to genealogy of the complainant side is also the same as that of P.W.1. In respect of the occurrence, he has stated that he regained consciousness 2 to 3 days after the occurrence and for all this while he remained in district hospital Muzaffar Nagar although he was not operated by the doctors. An X-Ray was conducted 2-3 days after the occurrence but he had got one Pellet extracted on his own at his house. He has suffered injury on the right side of face, on right side of chest and on the right side of right shoulder and arm which were pretty grievous but cannot tell their sizes and about 6 to 7 days after the occurrence, he was referred to Meerut Medical College but no parcha was made there because he was told that he would get alright and he did not take any treatment there.
54. Further he stated that he had been picked up by his brother Irfan but does not know about others. He has crossed over the boundary and had jumped into the house of his brother, Iqbal to conceal himself. He does not know whether besides him, in the house, any person had jumped or not but all the injured had run in the same direction. He has further stated that all the brothers do agricultural work together and distribute equally the produce of it. On the date of incident who all had gone to the fields, he does not recollect but has stated that they had gone for cutting the sugar-cane at about 7 to 8:00 a.m. and had returned home about 10:00 p.m. in their 'gher' and were resting. All the brothers were living separate in their respective houses but they were all located in one 'gher' and it is the same 'gher' in which the incident happened, he cannot tell its area in bighas or yards. In the said 'gher' there are 13 residential rooms constructed: there is no room on the ground floor except one kotha in which articles were kept for running water. The said house is three storeyed. On the first floor there are 6 rooms which are constructed on the rear side of sehan. The main door of the two rooms opens towards kharanja while doors of the rest of 4 rooms are towards north. On the second floor also, there are 6 rooms exactly like that of the first floor but on the third floor there is a room, its one door opens towards kharanja and one towards the north. The said room at the third story is at the centre of the house. All the three brothers were residing in the said house which included Naseem, Saleem and P.W.3. All the three are married and their wives also live in that house. He lives along with family on the second floor but none lives on the first floor nor anyone lives on the third floor. On the third floor, there is no residential room and only guests etc. are accommodated. This witness has also stated that deceased, Naseem's wife Shabnam had married Rashid after his death.
55. This witness has further stated that 'Gher' is surrounded by boundary wall and to the north of it is located, gher of Jabbar and by the side of it towards north goes a stair-case up to the third storey which is about 1 ½ feed wide without any railing. There is wall of bricks by the help of which one can go up to the third floor. There is some kattcha place left in his 'gher' for the purpose of tying the cattle which is about 15 yard wide in length and is located towards north the house of Jaffar. In their house, there is only one fodder cutting machine but for running the same, there was no electricity motor but had only affixed on it a handle for cutting the fodder, which machine is lying towards north in the 'gher' near the stair-case. He had brought the fodder near the said fodder cutting machine which was about 50 kgs. and for cutting this fodder, all the brothers were not there rather only he, Raiyyan and Naseem were busy in cutting the fodder. About half of the fodder had been cut and at that time, his brother, Irfan was present there but was not cutting fodder, he does not do normally the agricultural work and does so only when it is felt necessary. At that time there were 5 to 7 cattle tied at the said place.
56. The main door of his house is towards the east i.e. towards the side of Kharanja and there a gallery in the said 'Gher' which is about 8 to 9 feet wide. As soon as he heard the abusive language in gallery, he left the work and came to the gallery where accused were present having openly wielding country made pistol and guns in their hands. At the time when for the first time, he saw them, there was no fire being made in the gallery and when they (P.W.3) and his brothers came in front of the said gallery, the accused started making fires upon them by their respective weapons indiscriminately and about 200-250 fires were made but he cannot tell exactly. The said fire was made for about 1 ½ minute. All the accused were having waist belt having cartridges. In front of the gallery, P.W.3, Naseem and Raiyyan were present. Shakir was working in the gallery somewhere else. They and the accused were sitting face to face. There must have been distance of about 25 to 30 feet between them. All of them (complainant side) had received injuries there only but had not fall down rather had fled from there towards north and saved their life after crossing the boundary. Within two to four minutes after this occurrence, his brother, Irfan reached there where he (P.W.3) was concealing himself behind the wall and at that time, he had not seen Irfan having received any injury, he had come along and had picked up and taken him to the 'gher'. At that time, Naseem was already placed in the car which was parked outside the Gher. At that very time, he was also placed in the said car and Irfan immediately proceeded. He regained consciousness next day after having been treated. At that time, Shakir S/o Shabbir, his Mamu was there but he did not tell anything about the occurrence or the injured or deceased persons. Irfan had met him next day in the evening in hospital but did not give him any information with regard to the fact that against him also, a case had been filed nor had he told him anything about the accused, Sarfaraz having received any injury.
57. After the occurrence, Irfan met him next day in the evening about 5:00 p.m.-6:00 p.m. and at that time P.W.3 was admitted in Government Hospital, Muzaffar Nagar. Prior to him meeting his brother, Irfan, P.W.3 was not operated or x-rayed in the district hospital Muzaffar Nagar. He remained hospitalized for 6 to 7 days and was x-rayed once or twice. His brother, Raiyyan had taken him from Muzaffar Nagar to Meerut for treatment but he does not know why he was taken to Meerut. He was having relief but he was taken for ensuring whether he had any pallets or bullet in his body but he was not got admitted there. He had received injuries on his hand and chest. In his t-shirt, the marks were there of bullet having crossed. He does not recollect whether the marks of bullets were there on the walls of the 'gher'. He does not recollect that cattle were tied in the side but stated that at the time of occurrence, the cattle were not tied there. Lot of blood of his brother, Naseem had spread there. Later on, he said that he does not recollect as to whose blood was lying there.
58. He has admitted that a cross-case of the present case was pending in this Court against him, his brother, nephew Raiyyan and Shakir in which cross examination was going on. Further he has stated that he does not know as to what allegations were made in the said case by Shaukat against him. He has denied that he was making false statement on the basis of concoction.
59. He had given statement to the I.O. that at that time he was inside the house and that they were cutting fodder for their cattle and that he, Raiyyan and Shakir had crossed over the boundary to save themselves. Further he had given statement to the I.O. that Naseem had fled towards third story of his house to save himself by the stair-case where the accused had caused him bullet injuries and that on the second and third floor, women of the house live and that he was admitted in District Hospital for his treatment but if the same facts were not recorded, he cannot tell its reason.
60. The statement of this witness is trust worthy and believable to the extent that he was also present at the time of occurrence although he has exaggerated a little bit by saying that he had become unconscious and regained consciousness only after two to three days after the occurrence. This kind of exaggeration is found often in the statements of injured witnesses to show the nature of seriousness of their injury but that can be over-looked. He is one of the witnesses who had received injuries in this occurrence and saved himself by crossing the wall with other co-injured. Although we do not find that it would be possible for him to have seen the deceased, Naseem being fired upon by the accused persons on the third floor as he had crossed over the boundary and he was brought back by P.W.1 and others for being treated subsequently but he is definitely a witness of the occurrence that the accused had come in the 'gher' of the complainant side in order to make deadly assault upon them and kill them and in this process, this witness had crossed over the boundary to save himself while the deceased, Naseem received fatal injuries who was found in badly injured condition on the place 'X' shown on the third floor of the complainant's house from where he was taken to hospital and was later on proclaimed dead.
61. PW 4, Constable Sahab Singh has stated in cross-examination that the original GD dated 25/02/2010 is in front of him, according to which, prior to the said case, on 25/02/2010 Naksha Najri was prepared by a Constable, Yash Vir Singh, who was posted with him and with whose signature and writing he was conversant. The said Naksha Najri was prepared in the presence of SHO Promod Panwar at 6:15 AM on 25/02/2010, and at serial number 6 of the said Naksha Naukari the Ravanagi of SI Bagesh Kumar Sharma is shown on 23/02/2010. Prior to the registration of present case, crime number 162 of 2010 under section 60 of Excise Act at 10:45 AM is entered. The posting of constable 639 Ram Mehar Singh is shown at PS Shahpur, Chauki Harsoli. He does not know whether at the said police Chauki Harsoli, GD is run or not.
62. The entry of the present case is made at report no. 33 and in the same GD the Ravanagi of SHO Promod Panwar along with force and panchayatnama and other papers is also made. On the original GD, signature is available of SO Promod Panwar. No entry has been made in the said GD of dispatching SR (special report). The name of the person who carried the said special report is not recorded in the said GD nor is there any entry made of the said person who had returned. All this was being stated by him after having perused the GD dated 25/02/2010. There is no mention made of return of police force and its members which was dispatched vide report number 33 dated 25/02/2010 in the said GD. After the Ravanagi of the SO from the police station his subordinate is made In- charge of police station. In the GD the name of the said Incharge subordinate officer has not been indicated.
63. As per GD dated 25/02/2010 entry in respect of the accused was made by him at 24.00 hours. It is right to say that on 25/02/2010, the GD was forwarded by Promod Panwar on 26/02/2010 and not by the officer in charge in his absence. On his own this witness has stated that the GD was forwarded on 26/02/2010 and at that time SHO Promod Panwar was not present on the police station. No entry has been made in GD of the return of constable 639, Ram Mehar Singh on 25/02/2010 after getting the injured Naseem, Khalil, Raiyyan and Shakir having been admitted for medical examination. The original chick report was sent to Circle Officer's office on 26/02/2010, but there was no documentary proof in front of him of the same.
64. He has further stated that at the time of registration of the case SHO Promod Panwar was not present on the police station. No order was passed by the SO to register the case. It is wrong to say that the chick report and other papers were prepared anti-timed pertaining to crime no. 163 of 2010.
65. After preparing the chick report of case under sections 25/27 of Arms Act, the case property was deposited in Malkhana. At the police station there is maintained Malkhana register, in which date of entry is always entered and description is made of the case therein. The case property is sent to sadar Malkhana after conclusion of the trial, however during the trial the same is kept at the police station.
66. The chick of crime no. 160 3A/2010, under sections 307, 504, 506 IPC vs Naseem and others was prepared by him on the basis of written report given by the informant, Shaukat and on that basis the case was registered on 10/3/2010 at 6:30 PM by him, the original chick report was available on the summoned file of the Sessions Trial No. 74 of 2011, State vs Khalil and others under sections 307, 504 and 506 IPC, PS Shahpur. The said chick report was prepared by him, the photocopy of which after comparing with the original was filed as Exhibit Kha - 1.
67. This witness is a formal witness who has simply stated that he had prepared the chick F.I.R. of the present case, nothing in the cross-examination has emerged which would persuade us to believe that the F.I.R. was anti-timed in this case. The lapses which he has admitted to be there with respect to several entries not being made regarding return of the person who had taken special report, would only be taken to be a procedural error committed by the investigating officer but that would not reduce the statement of this witness to be doubtful as regards lodging the F.I.R. at appropriate time as has been mentioned in the chick FIR.
68. SI Bogesh Kumar Sharma has stated as PW 5 that on 25/02/2010 he was posted at PS Shahpur and on that day he had registered a case crime no. 163/2010 under sections 147, 148, 149, 452, 307, 302 IPC and 7 Criminal Law Amendment Act on a written report of informant Irfan son of Shamshuddin resident of Harsoli. The panchayatnama of the deceased Naseem son of Shamshuddin was filled up at District hospital, Muzaffarnagar by him on 25/02/2010 at 17.10 to 18.50 hours. In the said panchayatnama, he had made Ishtafaq, Yaseen, Jamiluddin, Manzoor Hasan, Shubrati as panchas. In panchayatnama the description of the dead body was made including that of the clothes that he was wearing. In the estimation of the panchas, the cause of death was the injuries received on the body of the person of the deceased and because of that, opinion was expressed for conducting post-mortem report to identify the cause of death. The dead body was sealed and was handed over to constable Ramveer and constable Vijendra Singh for taking the same for post-mortem. This witness has proved panchayatnama of the deceased as Exhibit Ka - 8 which has been signed by him and his companions. He has also proved photo Nash, Exhibit Ka 8, Chitthi RI, Exhibit Ka 10, Chitthi CMO, Exhibit Ka 11, challan Nash, Exhibit Ka 12, fard in respect of taking plain floor and bloodstained pieces of floor and clothes which is Exhibit Ka 13, which was prepared at the instance of In-charge police station Shri Vinod Kumar. Fard was also prepared of taking into possession 1 empty cartridge of 12 bore and 1 empty cartridge of 315 bore pertaining to crime no. 163 of 2010, which was prepared at the instruction of In-charge PS Promod Panwar in his handwriting, which is Exhibit Ka-14.
69. In cross-examination this witness has stated that he had received information of this case through first information report. He has no knowledge whether the information of this case was got received at the police station prior to him coming to know about it. The case was registered at the PS in his absence. At the time when he received this information that the case had been registered, at that time he was posted at Chauki Harsoli. The said police Chauki was located in the same village where the occurrence took place at a distance of about 1 ½ Km. from the police station. The said village is connected with the road which goes to Shahpur Budhana. There were two routes to go to the said village. There was R.T. set at Harsoli police Chauki. No CD is maintained at the said Chauki because the said Chauki was not reporting Chauki. From police force which had come from PS Shahpur, he had come to know that some occurrence had happened in the village.
70. He has further stated that he had received information about the occurrence at 4:30 PM. The village in which occurrence took place was about 2 - 2 ½ km away from the main road, because of that he did not go straight to the place of incident, rather went to the village first, thereafter straightaway went to the Government hospital, Muzaffarnagar. He was with Promod Panwar, who was also present at the time of panchayatnama as the same was performed in his presence and under his instruction. He admitted this to be right that the signature of SHO is not available on any above challani document such as panchayatnama, Chitthi RI, Chitthi CMO, challan Nash and photo Nash etc.. There was a lot of crowd in the hospital which led to the problem of maintaining law and order, because of which the SHO became involved in maintaining peace.
71. He has denied to have given wrong statement with respect to presence of the SHO and that the SHO Promod Panwar was not present on the spot. The panchayatnama was prepared till 6.50 for about 1 hour and 40 minutes, during which the injuries sustained by the deceased were also noticed and mentioned and also the opinion of panchas was recorded. The panchayatnama was filled up in the hospital and at 6.50 p.m. on 25/02/2010 the dead body was handed over to the constables. From the District hospital, the Police Line, Muzaffarnagar was about 1 km away and the police at the most could have taken about half an hour in reaching there. The challan Nash was prepared by him, at the back of which there is entry made in respect of depositing of the papers vide report no. 57 time 23.40 hours on 25/02/2010, which bears the signature of the then RI.
72. At the time of filling up panchayatnama, he had chick report with him which he had read. In the said chick report the time of occurrence is mentioned as 2 PM on 25/02/2010 and no place is mentioned where the death took place of the deceased. It is right to say that on challan Nash, the time of death was recorded as 2.50 p.m. it is also right to say that the witnesses which were shown in panchayatnama were not mentioned as witnesses in the first information report and it was also right to say that he was not an investigating officer in this case. He on his own has stated that on the basis of information obtained by him, he had mentioned the time of death to be 2.50 p.m. He does not remember as to whether he had given statement to the IO that he did not have knowledge about the entry of time of death made in challan Nash. It is right to say that on paper no. 6/1, signature is there of RI bearing seal of District hospital, Muzaffarnagar, in which beneath p.m. number 166, Time 8.40 a.m. has been indicated along with date 26/02/2010. According to the available papers, such as Challan Nash post-mortem is endorsed to have been conducted on 26/02/2010 at 11 AM, after having obtained the papers at 10.50 a.m..
73. After filling up panchayatnama he and SHO Saheb along with force had gone to village Harsoli but at what time he reached there he does not recollect but it had become dark by then. The reports which are prepared by him i.e. Exhibit Ka - 13 and Exhibit Ka - 14, were prepared on the spot, but no mention is made therein of the source of light.
74. In the F.I.R. it is mentioned as to in whose house this occurrence had taken place, but in Exhibit Ka 13 and Exhibit Ka 14, it was not specifically indicated as to in whose house or at which particular place, the plain floor as well as bloodstained floor was taken into possession and similarly in Exhibit Ka - 14 also no such specific place was indicated, except that place of incident and the case crime no. was mentioned. The occurrence regarding which he has made description belongs to case crime no. 160 of 2010. This place of occurrence is located in the house of deceased Naseem and informant Irfan in village Harsoli at P.S. Shahpur. The witness was shown the site plan, to which he stated that the same was prepared by him, which was a copy prepared by him of the site plan prepared by SHO Saheb. The said site plan bore signature of Promod Panwar and the place of incident was inspected by I.O. Promod Panwar.
75. The house of the informant was three storeyed. The floor was broken of the house which was situated in gallery, where blood of the injured was lying.
76. The empty cartridge of 12 bore and empty cartridge of 315 bore were found lying near the staircase and whatever articles were taken in possession by the police, the fard was prepared with regard to that which was signed by SHO, this witness as well as witness Tahir and Shaukeen Hassan and their entry was made in the same night at the police station. The higher authorities of police had already left the place of incident before this witness reaching there. He has denied the suggestion of having done ante-dated and anti-timed proceedings and that he did not make any such recovery.
77. This witness is also a formal witness who had simply proved the challani documents such as panchayatnama, photo Nash, challan Nash, Chitthi RI, Chitthi CMO and fard recovery of cartridges etc. apart from panchayatnama, therefore his testimony does not appear to suffer from any infirmity nor any infirmity has been pointed out in his statement.
78. Dr. Pradeep Mittal has been examined as PW 6 who has stated in examination in chief that on 25/02/2010 he had examined the injured Khalil at 3:15 PM who was brought by constable 634, Ram Mehar Singh of PS Shahpur and had found following injuries on his person:
1 - lacerated wound 0.75 cm, x 0.25 cm, x depth not probed on right side of face, 2 cm, away from right angle of mouth, fresh bleeding present, kept under observation advised x-ray face.
2 - 2 lacerated wounds 0.75 cm, x 0.25 cm, second one 0.3 cm x 0.3 cm depth not probed, 4 cm apart each other present on front of left shoulder, 2 cm above left clavicle, bleeding present from the wound, kept under observation, advised x-ray chest AP view.
3 - 2 lacerated wound 0.75 cm x 0.25 cm, second one 0.3 cm x 0.3 cm depth not probed, present on front of left upper arm, 10 cm above left elbow, 8 cm apart each other, bleeding present from wounds, kept under observation, x-ray advised left upper arm.
4 - lacerated wound 0.7 cm x 0.3 cm depth not probed, right side of chest 2.5 cm away right nipple at 3 o'clock position, depth not probed bleeding present from wound, kept under observation and x-ray advised of chest AP view.
5 - lacerated wound 0.75 cm x 0.3 cm, depth not probed, on outer aspect of the left side, 15 cm above left knee, kept under observation advised x-ray left thigh.
79. All the injuries' duration was fresh and for finding out the nature of injuries, the patient was referred to surgeon. This witness has proved the injury report Exhibit Ka 15 of this injured.
80. On the same day on 25/02/2010 at 3. 25 PM he medically examined injured Shakir who was also brought by the same constable and found on his person following injuries:
1 - lacerated wound 0.7 cm x 0.3 cm, right side of head, 9 cm above right eye, depth not probed, bleeding present, kept under observation, x-ray advised of skull.
81. He has proved the injury memo of this injured as Exhibit Ka 16.
82. On the same day he examined medically the injured Raiyyan at 3.35 PM who was brought by the same constable and found following injuries on his person:
1 - lacerated wound 0.7 cm x 0.3 cm x depth not probed medial aspect of left-hand, 2 cm above base of left little finger, bleeding present, kept under observation advised x-ray left hand.
2 - lacerated wound 0.3 cm x 0.3 cm x depth not probed on entire aspect of the left forearm, 2 cm above the left wrist joint, bleeding present, kept under observation, x-ray advised of left forearm.
83. All the injuries' duration was found fresh and for knowing the nature of the injury the patient was referred to orthopedic surgeon. This witness has proved the medical report of this injured as Exhibit Ka 17.
84. In cross-examination this witness has stated that it was right to say that in the hospital, for medical examination, three registers were being maintained. Medico legal register, voluntary register, medico-legal police register and accidental case register. The injuries of the three injured would have been also noted in MLPC register. It is right to say that no serial number has been indicated in the District hospital's register of the injury memos Exhibit Ka 15 to Ka 17. It is also not indicated as to by which medical officer, they were forwarded for medical examination. It is also right to say that on all the three medical reports there was no crime no. Or case number indicated. On all the three medical reports it was not indicated as to what was general condition of these injured, however it is stated by him that if general condition happens to be poor, in such a situation the patient is admitted in the hospital for the purposes of treatment but in the present case it was not so. It is also right to say that the condition shown of all the three injured was almost similar but he cannot tell as to whether the pellets of 12 bore would disperse, if yes how much. It is also right to say that in all the injuries of these injured persons depth was not probed and there was no blackening present. He has not indicated as to by which weapon the said injuries could have been caused to the said injured persons. All the three injured were given reference lips and were also referred to the surgeon, but at no stage any one came to him to find out his opinion as to whether the said injuries were simple or grievous. He would not give any opinion in respect of injuries unless sought for. He has denied the suggestion that because of the police having told so, he had recorded the said injuries, although it was right to say that he had not given any treatment to the injured.
85. Dr. Radheshyam Verma has been examined as PW 7 who has stated that on 26/02/2010 at about 11 AM he had conducted post-mortem of the deceased Naseem son of Shamshuddin, whose dead body was brought by 2 constables and was identified by them namely Ravir Singh and Brijendra Singh Rathi. He found following ante-mortem injuries on the person of the deceased:
1 - Pellet induced injuries, size 1.0 cm x 1.0 cm x muscle deep on the front of the right side of forehead, it is 4.0 cm above from the right side of eyebrow, margins were inverted and blackening present.
2 - Pellet induced injuries size 1.0 cm x 1.0 cm x muscle deep. It is 5.0 cm below from left-side ear.
3 - Pellet induced injuries size 1.0 cm x 1.0 cm x depth not probed, present on the neck. It is 6.0 cm below from the angle of the left side mandible.
4 - Pellet induced injury size 1.0 cm x 1.0 cm x muscle deep present just above from the left side clavicle. One Pellet has been recovered, which was sealed.
5 - Pellet induced injuries size 1.75 cm x 1.5 cm, x chest cavity deep on left side chest, near nipple, margins are clear inverted, blackening present and margins are regular.
6 - Wound of exit size 2.5 cm x 1.75 cm x chest cavity deep present on left side chest wall was rated as just below from the left and scapular border. Its margins are outwards and irregular.
86. It was noted in the margin that maximum pellets had injured tissues and had returned back from the same path like injury number 1, 2 and 3.
87. On internal examination after opening skull, the brain was found yellow and it was found lacerated also. The 5th, 6th, 8th and 9th ribs of the chest were found broken. The left lung was lacerated and in left-side pleural cavity, 1.5 litres of blood was found. Heart was lacerated. Cause of death was shock and haemorrhage as a result of fire arm weapon induced injuries. This witness has proved the post-mortem report Exhibit Ka - 18 and has opined that the deceased might have died on 25/02/2010 at about 2 PM by fire arm injuries.
88. It has been stated in cross-examination by this witness that by the said injury instant death was possible. He had not given any opinion in respect of injury no. 4. With regard to injury no. 1, 2 and 3 he had indicated that the pellets had entered and had returned by the same route and came out of the body. Injury no. 1 and 5 had blackening. He has stated that he could not tell as to whether the said blackening could have been caused by making fire from distance of 3 feet or less. It is right to say that trajectory of injury no. 5 to 6 was from above to downwards. He has denied that he did not take proper precautions in conducting the post-mortem.
89. From a perusal of the statement of this witness it is apparent that he had conducted the post-mortem of the deceased and has found the deceased to have died because of fire arm injuries, 2 out of which are found to have been caused from close range as blackening was found. It is also a case of the prosecution that the accused had opened fire upon the deceased as well as on injured by which deceased died and injured also received injuries and the time of the said injuries to have been caused to the deceased is also found to be the same which has been stated in the F.I.R. as the time of this occurrence. Therefore we find that the testimony of this witness is corroborating the eye-witnesses' account noted above. The argument was made on the side of the appellants that the trajectory of the injury number 5 and 6 was found from above to downward and hence it does not match the statement of the eye-witnesses. We are not inclined to accept this argument because when indiscriminate firing is made, it is difficult for the witnesses to notice as to how and from which angle the injuries were caused. Moreover in this case the occurrence has been admitted by the accused side, the only defence taken by the accused side is that the said injury to the deceased was caused in self-defence and the accused was also caused firearm injury for which cross case was registered against the complainant side.
90. Now we would deal with the statement of the Investigating Officer Pramod Panwar (P.W.8) who has stated in cross-examination that it was right to say that till registration of this case on 25/02/2010 at PS Shahpur at 4:30 PM he did not have any kind of information about happening of this occurrence. He has admitted that at Shahpur and Chauki Harsoli there was wireless set and in respect of serious occurrences information used to be exchanged. He does not remember as to whether at Chauki Harsoli, SI Baljor Singh was in charge or not although police remains there round-the-clock. The concerned In-charge had not given any information on CUG mobile of any serious occurrence. Further he stated that after registration of the case in GD at report no. 33 time 11.30 hours, his Ravanagi was done with SI Bagesh Kumar Sharma apart from other police team by Government jeep, however Ravanagi of SI Baljor Singh does not find place in GD. After his Ravanagi he did not stop at Chauki Harsoli to take any police personnel along nor did he find out anything about the occurrence. According to the informant Irfan, police was available at Chauki Harsoli. It is wrong that he had sent the injured for treatment to District hospital. If it is written in his statement that prior to registration of F.I.R. he was present in District hospital, the same is wrong. The informant had met him at the police station for the first time after lodging the F.I.R. but he does not remember whether the written report was given to him or to Head Morrier, by him, but there was no order of his for registration of the case. It was wrong to say that at the time when written report was given at the police station he was not present there and because of that reason only there was no order on the said written report of his to the effect that case be registered. In Naksha Nokari whatever police happens to be there at the police Chauki, the description of their presence and details are noted in the GD. It had come to his knowledge during investigation that the injured were medically examined on the basis of Majrubi Chitthi which was given by constable Ram Mehar Singh. And this witness was asked as to from where the Majrubi Chitthi was issued, he stated that the same was issued from the police station. After having seen Exhibit Ka 15 , Exhibit Ka 16, Exhibit Ka 17 of the three injured namely Shakir, Raiyyan and Khalil he stated that their medical examinations were conducted at District hospital between 3.15 p.m. to 3.35 PM and all the three medical reports were provided to him by constable Ram Mehar Singh. During investigation, after his Ravanagi and return from the District hospital, these three injury memos were provided to him by the said constable and at the same time entry was made of these documents in GD no. 37 at 4 PM at PS Kotwali Nagar. After registration of the first information report he had instructed SI Bagesh Sharma to prepare panchayatnama at his instruction. It was right to say that at none of the pages of the said panchayatnama, there was his signature and on his own he stated that he was busy in other work. In Exhibit Ka 8, panchayatnama there is direction available for taking along constable Raghuveer Singh of Chauki Harsoli and constable Brijendra Rathi and SI Baljor Singh along with available force to reach village Harsoli. According to panchayatnama the proceedings were held between 5.00 p.m. to 6.50 p.m. at Sadar hospital, Muzaffarnagar and on challan lash, Exhibit Ka 12, vide report no. 57 time 23.40 hours on 25/02/2010 is endorsed as the time of dead body reaching police line Muzaffarnagar. From the District hospital, police line was situated about 2 kilometres away. He has denied the suggestion that on 25/02/2010 till 23.40 hours, the F.I.R. had not been written at the police station. It was right to say that proceedings of panchayatnama were in last leg, right then they had proceeded for the place of incident. He, on his own, stated that SI Bagesh Sharma had come to the place of incident after concluding the proceedings and till then this witness had not done any written work. Whatever written work was done was done only after coming of SI Bagesh Sharma. After reaching the place of accident, first of all he made inspection of the place of incident and SI Bagesh Sharma prepared the site plan which is Exhibit Ka 19. The bloodstained and ordinary floor which were taken in possession, were the places outside the gate of the house of informant in varandah shown by ''C' and ''B', apart from that there is no other place shown from where anything was lifted. From this place, from where blood smeared floor was taken into possession, no empty cartridge was recovered. In site plan, from places shown by ''D' and ''E", blank cartridges of 12 bore and 315 bore respectively were recovered. The said witness had stated under 161 Cr. P.C. about fire to have been made by seven accused and has also written the same in written report that all of them had made indiscriminate firing in his house but during investigation only 2 cartridges mentioned above were recovered. Irfan had not shown him any marks of pallets on the walls of their residential house nor were they shown by informant to him, otherwise he would have shown them in the site plan. He was also not shown the fodder cutting machine near the staircase or sacks full of fodder otherwise he would have indicated them. He does not remember whether to the west of the place shown by ''C' there was any iron gate or not. It was told by informant that the accused had made firing from the place shown by ''A'. By ''X' is shown the place where deceased had received the shot. By ''B1' is shown the room on the third storey. It is right to say that the places which are shown by other letters than ''B' and ''C', no blood was found. In the fard relating to recovery of empty cartridges, got prepared by him by Bagesh Sharma, the word place of incident is written and not specifically Makan Dalan and on his own he stated that in the first information report the place of incident has been indicated. In both the fard i.e. of collecting the empty cartridges as well as of taking blood smeared soil, no specific time has been disclosed because he did not consider it necessary but he denied that he had not prepared those fard on 25/02/2010. He has further stated that on 26/02/2010 at 6:30 AM he had deposited three bundles after returning to the police station along with the sample seal. It is right to say that the said articles were deposited in Malkhana of police station and the description of the said articles was made in the Malkhana register of the PS. It is also right to say that on the fard of blood smeared and ordinary soil no other witness had put his signatures. It is also stated by him that when the case property becomes in excess, then only the articles are deposited in Sadar Malkhana. He had arrested accused Sarfaraz and Sahid on 27/02/2010 at 1:20 PM and according to Exhibit Ka 7 the accused was got sent along with Majrubi Chitthi for medical examination to PHC Shahpur with the help of constable Aslam and constable Samarpal. During investigation he was sent to hospital in Shahpur, but no medical report was submitted of accused Sarfaraz at PHC Shahpur. He had not incorporated the said document in investigation under sections 302 IPC, rather the investigating officer of cases under sections 25 of Arms Act, S I Baljor Singh pertaining to crime no. 165 of 2010 was given a copy of the same, while the original of which was in ST No. 958/10, State vs Sarfaraz and the Doctor of PHC Shahpur had advised x-ray of the chest as well as right-hand of the injured Sarfaraz. On 27/02/2010, at the time of arrest of accused by him, the statement of Sarfaraz was recorded under sections 161 Cr. P.C. in which he had stated that on the date of incident, prior to the present incident Naseem, Khalil and his brothers had done Marpit in which he had got badly injured and also had stated that firing was done from both the sides and almost of the same type statement was also made by accused Sahid also, but in consonance with the U.P. Police Rules, no detailed investigation was done in respect of the statements by made by the accused. He has knowledge that the cross case of the present case relates to crime no. 163A/10, under sections 307/504/506 IPC, which was investigated by SI Bagesh Kumar Sharma and the case diary relating to that was perused by him and in the said case the said IO had submitted charge sheet against the informant of the present case and others. It is further stated by him that he had received the x-ray report of Raiyyan and Shakir which were entered in Parcha number 7 dated 11/03/2010 and in that it was mentioned that there was no bony injury found. The statements of witnesses named in F.I.R. namely, Ilyas Shabnam and Zubain could not be recorded on 25/02/2010 because of being busy in official work. He has denied that he had not recorded statement of these witnesses because by then F.I.R. had not been registered. It was right to say that during investigation he did not obtain supplementary medical report of the injured Raiyyan, Shakir and Khalil because there was no seriousness in the x-ray report. At the time when Irfan had lodged report, thereafter he had not apprised him that Sarfaraz had also received injuries.
91. The cause of occurrence has been shown to be quarrel which happened one week prior to the occurrence on account of playing volleyball, but in this regard he had not recorded the statement of independent witnesses, although in this regard the witnesses had made statements to him. The witness Irfan had not told him that he and his brother, after having returned from the field, were taking off fodder from the buggi to be placed on fodder machine nor had he given this statement that when women of the house raised alarm and sound of country made pistol were heard, due to fear people had assembled. This witness had also not stated to him that after putting his injured brother in the vehicle, first of all he came to the police Chauki of the village and from there he took along a police constable and then they went to the hospital. Witness Raiyyan had not stated to him that fodder machine was being run with hand, leaving which they fled and the fodder was left lying there. This witness had not told him that at the time of occurrence they were cutting fodder. This witness has further stated that he could not find any such evidence during investigation that injured Raiyyan Khalil and Shakir had remained admitted for the treatment. He has denied that he did not make independent investigation and entire investigation was done by him sitting at the police station and filed charge sheet.
92. This witness is a formal witness but his statement is of enormous importance as he has conducted the investigation in this case. There are few noteworthy points which need to be taken into consideration particularly the statement made by this witness that he did not find blood at any other place except at the places shown by ''B' and ''C' which meant that he did not find any blood at the place shown by ''X' where the deceased was found lying in injured condition on the third storey of the house of the informant, which is a little intriguing for us because the above-mentioned eye-witnesses particularly PW 1 and PW 2 have clearly stated that the deceased had run to the third floor of his house to save his life who was pursued by the accused and was being fired upon continuously, therefore in such a situation there was likelihood of the blood being found on the said place shown by ''X' at the third floor. But we find that this appears to be lacuna on the part of the investigating officer not to have collected blood from there, the benefit of which cannot be allowed to go to the accused. There are few other statements also made by this witness such as him not having found any mark of fire made on the walls of the gher, even though it is a prosecution case that there firing was made by the accused persons, it was argued that had there been made such kind of firing, certainly such kind of marks would have been found and also the cattle which were tied there would also have received injuries and therefore being found nothing of the sort there would create doubt in the mind of prudent person about the prosecution version being true. We are not much impressed by the said argument because it was not necessary that such marks would have been found on the walls because that would depend upon the intensity of the fire and also in evidence it has come that cattle were tied on one side, and it could be possible that on the said side fires may not have been made. This witness has also stated that the injured on the side of the complainant namely, Raiyyan Khalil and Shakir had not received serious injuries because of which he had not collected supplementary medical examination report of the injured persons, but that would not mean that the said injured had not received injuries in this occurrence. The Doctor has proved that these injured had received injuries and since lacerated wound is found, it could not be ruled out that they would have been caused by the fire arm. There appears to be lapse on the part of investigating officer in not making serious investigation as per his own admission and the case of accused Sarfaraz having been fired upon by Naseem, Khalil and his brothers on the pretext that it was not permissible under the U.P. Police Rules although he has admitted that he had full knowledge that there was a cross case being crime no. 163A/10 registered at the same PS which was being investigated by S I Bagesh Kumar Sharma, who had filed charge sheet against the complainant side in this case and the same was perused by this witness. It would be appropriate for this witness, who has investigated the present case to have investigated the said matter as well to reach the right conclusion as to who was the aggressor or whether both the sides were involved in free fight in which injuries were suffered on both the sides. Be that as it may, we have to form an opinion on the basis of evidence which has been placed before us. We find that whatever discrepancies have been noticed in the statement made by this witness in respect of the statements which were given before him by PW 1, 2 and 3 who are eye-witnesses, do not appear to relate to the material aspect of the case and such contradictions of the prosecution may be overlooked keeping in view the fact that in a matter of assault like the present one when large number of the accused were assaulting the deceased and the other injured by fire arms, it could be possible certainly omissions/commissions could be there which should be taken to be natural. Therefore the testimony of this witness is found to be in favour of the prosecution and does not appear to suffer from any serious lacuna.
93. S.I. Baljor Singh has been examined as P.W. 9 who has stated that on 27/02/2010 he was posted as SI at PS Shahpur and on that day he was assigned the investigation of case crime no. 165 of 2010 under sections 25/27 State vs Sarfaraz and also of crime no. 166/2010 under sections 25/27 vs Sahid. On 27/02/2010 he had copied chick F.I.R., GD and had taken statement of the constable clerk Sahab Singh, statement of accused Sarfaraz and Sahid in Parcha 1 and also took a statement of SI Anil Singh and constable 34 Jitendra Singh. On 3/3/2010 he took the statement of informant SHO Promod Panwar, constable 388 Samaryab and at the instance of S.I., Anek Singh made the spot inspection and prepared site plan. The original site plan was kept on the file of ST No. 958/2010 which is paper no. 8 in his handwriting and the same has been exhibited as Exhibit Ka 23 and a carbon copy of the same is placed on the file of ST no. 959/2010 which is paper no. 7 and which is marked Exhibit Ka 24. On 04/03/2010, he filed charge sheet no. 40/2010 in crime no. 165 of 2010 which is paper no. 3 and is marked Exhibit Ka 25. In crime no. 166 of 2010 pertaining to sections 25/27 of the Arms Act State vs Sahid, he filed charge sheet no. 41/2010 which is paper no. 3 and is marked Exhibit Ka 26. Against those accused persons he proceeded, sanction was obtained from the District Magistrate on 18/03/2010 by him which is paper no. 6 and the same is marked Exhibit Ka 27. Against accused Sahid prosecution sanction was obtained on 18/03/2010, which is paper no. 6 on the file and the same is marked Exhibit Ka 20. One SCD Parcha was also prepared by him on 24/03/2010.
94. In cross-examination this witness has stated that in both the cases mentioned above charge sheet was submitted by him on 04/03/2010 and in both the cases prosecution sanction was received by him on 18/03/2010. The medical examination of accused Sarfaraz was got done at PHC Shahpur through police. The reference slip of the said injured accused Sarfaraz in original was available on file, which along with his medical report were obtained by him during investigation and were annexed in case diary. A carbon copy of the said medical report was provided by him in the murder case to the investigating officer by him and not the original. The entry of these papers was made in GD of the police station. He was Sub Inspector under the SHO. In this matter the arrest was made by the SHO, recovery was also made by SHO. For prosecution sanction he himself had taken the weapons to the District Magistrate which was opened by him and was shown to the District Magistrate after making fire and both the bundles were opened and thereafter resealed by him with the seal of the District Magistrate. He had collected the weapons from the Malkhana of the police station. He has denied that he did not make investigation in accordance with law and simply because he was subordinate to the SHO he had completed investigation sitting at the police station and submitted charge sheet. He has further stated that he does not recollect whether at the time of taking the weapons from the police station, entry was made in the Malkhana register or not. He clarified that at the police station there is a Malkhana register but it does not bear number of the article deposited and the identification of the case property is made by crime number.
95. This witness is a formal witness of the cases against two accused named above, namely, Sarfaraz and Sahid from whom firearm weapons where recovered and this witness had made investigation in the cases against them under sections 25/27 of Arms Act and submitted charge- sheet after taking proper sanction from the District Magistrate.
96. From the side of defence doctor Radheshyam Verma has been examined as DW 1 who was posted at T B hospital, Muzaffarnagar. He has stated that on 26/02/2010 he was deployed on emergency duty. On the said date one patient by the name Sarfaraz Ali son of Shaukat Ali aged about 23 years resident of village Harsoli had come to him at about 9.25 AM and was medically examined in emergency and following injury was found on his person:
(i) Pellet induced injuries over right side chest and trauma over posterior chest wall.
97. Further this witness has stated that he had referred the patient to be admitted in Medical College, Meerut and for conducting medico-legal examination of the injuries. The original reference slip is in the file of ST No. 724/2011 State vs Khalil and others under sections 307/504/506 IPC PS Shahpur, photo copy of which is filed which is marked Exhibit Kha - 2.
98. This witness has been cross-examined and has stated that he did not conduct any medical examination of the said patient nor did he conduct an x-ray nor any x-ray was shown to him during his examination. He had simply referred the patient to medical college Meerut, although he denied that he had mentioned ''bullet induced injuries' at the instance of the accused. By whom the same has been written, he does not know. He cannot tell as to whether in the clothes which the said patient was wearing there was any whole. In the reference slip he has not disclosed that any treatment was given to him. In the said reference slip the only reference of the name of Sarfaraz is made and not of any of his relatives. He denied that because of pressure upon him he had mentioned in the slip bullet induced injuries and also stated it to be wrong that Sarfaraz did not have any injury on head. He stated it to be right that he had not seen any other injury nor does he remember as to whether the patient had come himself for being referred or was brought by someone.
99. Hakikat has been examined as DW 2, who has stated in examination- in-chief that he knows Sarfaraz of his village who is son of Shaukat and he also knows Khalil, Nadeem, Raiyyan son of Shamshuddin and Shakir son of Raiyyan and Naseem who has died. The occurrence took place about 7 ¼ years ago on 25/02/2010 at about 2:30 PM. His house was in front of the medical store of Farukh which was located in the house of Mahadev. On the said day at about 2:30 PM Sarfaraz had come to take medicines, right then Naseem, Khalil, Raiyyan and Shakir came there with Lathis, country made pistol and gun at the said medical store and tried to drag Sarfaraz inside their house. He had seen that there was a lane by the side of the house of Naseem and others , where Sarfaraz was caused injuries by lathis by Khalil and Raiyyan. Khalil, Raiyyan and Naseem had caught hold of Sarfaraz, Naseem was armed at that time by a gun. All of them told Shakir "Mar sale ko goli" and at this instigation Shakir made fire upon Sarfaraz with an intention to kill and as soon as Naseem was disposed to make fire upon Sarfaraz, looking his life in danger, he snatched the said gun from the hand of Naseem somehow and started fleeing. Behind him these people also chased him with an intention to kill, then Sarfaraz in order to save his own life made fire from the said snatched gun and fled in injured condition from there. Subsequently he came to know that Naseem had died. This occurrence was seen by him and apart from him by Gaiyur, Musharraf, Ifroz and other Mohalla persons.
100. In cross-examination this witness has stated that he had not given the statement he made today in writing to any higher police officer and it was also stated by him to his counsel and to none else. He came to know yesterday only when police had lifted him. He could not tell as to in which direction is the opening of the house of accused as he does not know the directions. The distance of the house of accused from his own house would be about half km. but in which direction he could not tell. His house is situated in different Mohalla than the houses in which accused are located and in between, there are about 50 houses. Between his house and the house of Farukh there is one road. The store of the Farukh opens on the road, which restore was being run for about 5 to 6 years. It was told by the villagers that after the occurrence Sarfaraz had been referred to Meerut. After getting injured, where Sarfaraz had gone, he did not know. After getting injuries in head Sarfaraz had fallen in the lane outside. He kept lying there for about half second and thereafter got up and fled and thereafter stated that when he got up, then the fire was made at him, which hit his chest from a distance of about half feet, by which he fell down and none lifted him. After half second of getting hit he again got up and snatched the gun of Naseem but he cannot tell whether it (gun) had single barrel or double barrel. By the said gun no fire was made upon Sarfaraz. After snatching the said gun, Sarfaraz fled towards his house. He did not run after him, rather kept standing there only. After having run 15 - 16 paces Sarfaraz made fire upon accused to save his life, he made just one fire. He was looking all this from the place of occurrence. He does not know whether the fire made by Sarfaraz hit anyone or not. After making fire Sarfaraz ran towards his house along with the gun but he does not know what he did with the said gun. He does not know whether Sarfaraz had gone to his home or not. He had seen him only up to the medical store and thereafter he had gone home. What happened thereafter of Sarfaraz he cannot tell as to where he had gone? He had not gone to his house next day or even thereafter because he did not know as to where he was. Sarfaraz was of his clan but he cannot tell as to what was his relation with him. Sarfaraz used to do farming. When the occurrence happened Farukh was not at the medical store. He had not seen him prior to or even after the occurrence but he further stated that it was not so that there was no medical store of Farukh. The name of father of Farukh was Islamu.. Farukh has medical store even today which is being run by Kala son of Shaukat. The said Kala is not related to Farukh. It is wrong to say that there was no medical store of Kala. Farukh had gone to jail after the occurrence but how many days after the occurrence, he does not know. Farukh was son of the brother of Sarfaraz. Naseem son of Shamshuddin was murdered on the same day, of which he was narrating the occurrence. The brother of Naseem namely Khalil had also received firearm injury or not, he cannot tell. He also could not tell whether Raiyyan and Shakeb had received fire arm injuries. It was right to say that Sadik, Sajid, Arshad, Rashid, Sarfaraz, Farukh and Mumtaj were in jail but why, he could not tell. About one hour after the occurrence police had arrived. He had not met them. After having seen the police he had closed himself in his house. About the occurrence he had told the villagers only. Prior to narrating it in the court he did not tell about it to the police. He does not know as to for how long police stayed there. He was at his home and thereafter did not see police personnel. He denied that he had not seen any such occurrence and the house which he was stating to be his, was not his house and that he was making false statement only because of being of the family of Sarfaraz.
101. The statement of this witness does not appear to be trustworthy and confidence inspiring because he has stated himself to be present on the place of incident when firing was being made from the side of the complainant upon Sarfaraz and the description that he has given that Sarfaraz had fallen after getting hit and thereafter again got up, and ran for certain distance and again he was shot at and thereafter fell down but again got up and this time he snatched the gun from the hands of Naseem when he was about to make fire upon him and thereafter he fled towards his house in injured condition and while he was being chased by the accused with an intention to kill him, Sarfaraz made fire upon the complainant side but he cannot tell as to who got hurt by that. Had he been there certainly he would have seen as to who had got the injury by the fire made by Sarfaraz. He appears to have made the said statement only with a view to defending the accused Sarfaraz by cooking up a story so as to enable him have right of private defence and in excise of the same to prove that he had made fire upon the complainant side which might have hit the deceased Naseem although he did not specifically said so.
102. S.I. Bagesh Kumar Sharma has been examined as D.W. 3 who has stated that on 10/03/2010 he was posted on the post of S I at P.S. Shahpur and on that day after registration of the case crime no. 163 of 2010 under sections 307, 504, 506 IPC against accused Naseem, Khalil, Raiyyan son of Shamshuddin and Shakir son of Raiyyan, residents of Harsoli, the investigation was assigned to him. On the said day he copied the chick F.I.R., GD and took statement of the F.I.R. writer and thereafter on 11/03/2010 he took the statement of the informant in Parcha no. 2 and also of witness Afroz son of Jabbar, resident of Harsoli, Musharraf son of farzullah and Gafoor son of his Ismail, residents of Harsoli and also received injury memos of injured Sarfaraz and inspected the place of occurrence and prepared the site plan which is paper no. 9 and is marked as Exhibit Kha - 3. On 15/03/2010 in Parcha no. 3 effort was made to arrest the accused who could not be found. In Parcha no. 6 dated 23/03/2010, the statement of Sarfaraz was recorded after permission from court as he was detained in prison. In CD 7 dated 04/04/2010 raid was made to arrest the accused but could not be found. In CD 8 dated 14/4/2010 again raid was made but accused could not be found hence report was submitted for obtaining NBW. In CD 9 dated 15/04/2010 the effort was made to arrest the accused persons by obtaining NBW but they could not be found. In CD 10 dated 21/04/2010 and CD 11 dated 11/05/2010 raid was conducted but accused could not be found. In CD 12 dated 23/05/2010 a report was submitted for issuing warrant under sections 82 and 83 of the Criminal Procedure Code. In CD 13 dated 26/05/2010, NBW was issued against the accused. In CD 14 dated 27/05/2014 raid was made for executing NBW but could not be executed. In CD 15 dated 28/05/2010, warrant under sections 82 Cr.P.C. were obtained for service but accused could not be found. In CD 16 dated 13/06/2010 raid was conducted but accused could not be found. In CD 18 dated 29/06/2010 a report was submitted for obtaining warrant under sections 83 Cr. P.C. In CD 19 dated 02/07/2010 warrant were obtained against accused under sections 83 Cr. P.C.. In CD 20 dated 18/07/2010, medical report of injured Sarfaraz were received. The accused were released on interim bail from High Court. Charge- sheet no. 118/2010 was submitted after having found sufficient evidence against accused Khalil, Raiyyan and Shakir, which is paper number 3 and is marked as Exhibit Kha - 4. The summoned file of ST no. 724 of 2011 State vs Khalil and Sarfaraz was in front of him, in which site plan and the said charge sheet were placed and these two documents were marked as Exhibit Kha - 3 and Kha - 4.
103. This witness in cross-examination has stated that he has not shown the medical store of Farukh in the site plan. He cannot tell the distance and the direction of medical store of Farukh from the place of incident. He does not know whether Farukh was an accused in cross case. He did not find out as to where Farukh was. He had inspected the place of incident at the instance of the informant. Informant is not an eye-witness of this case. He had not gone to the place of incident taking along any eye-witness. Sarfaraz is an accused in cross case, who had stated that he had snatched the gun and thereafter had made fire in defence. He did not enquire from Sarfaraz as to where the said gun was nor did he ask about it from any other witness. He did not enquire about it even from Farukh. He did not find out anything about the deceased and injured of the cross case. He cannot tell the distance of lane from the place of occurrence shown by ''X' nor could he tell the width of the said lane. He did not find any such evidence on the place of incident which would reflect that the occurrence happened because he had gone to the place of incident many days after the occurrence. He had not gone to the house of Naseem on the date of incident.. He had not taken his statement or of any person of kolhu in respect the occurrence. He had not recorded statement of any eye-witness whose houses were near the place of incident. He had not gone to the hospital to record the statement of any employee in respect of the injuries caused. The clothes of Sarfaraz were not taken into possession nor did he make any queries about the same from him. He had gone to the house of the informant but did not make any endorsement regarding it. No damage was noticed in the house of informant. Sarfaraz had not stated to him that when he had gone to the store of Farukh he was present there. Rather he had given statement that Raiyyan, Khalil and Naseem had caught hold of him and Shakeel had made fire from the country made pistol which he was carrying in his hand. Shaukat had stated to him that he had gone to lodge report at PS Shahpur but the same was not lodged. He had also stated that Naseem told Shakir ''mar sale ko goli'. This witness had not told that all the four accused had made fire upon his son Sarfaraz rather had told that Sarfaraz had made fire. He has denied to have submitted charge- sheet on the basis of false investigation.
104. From the statement of this witness it is apparent that he was very lax in conducting the investigation in respect of vital aspects of the matter. He has admitted not to have recorded the statements of independent witness who were living in the vicinity nor did he record any statement of any employee of the hospital with respect to the injuries having been caused to Sarfaraz. Shaukat, he stated, had not told him that all the four accused had made fire upon Sarfaraz rather had stated that it was Sarfaraz who made fire upon them. He also did not find out anything about the injuries caused to the deceased and the injured of the cross cases, which ought to have been done by him for fair investigation.
105. Dr. Mukund Pal Singh has been examined as DW 4, who has stated to have medically examined Sarfaraz on 26/02/2010 at 12.50 p.m., who was brought by Md. Hashim son of Suleman, resident of Sher Nagar, Nai Mandi District Muzaffarnagar, who was referred from Muzaffarnagar hospital to Meerut and found following injuries on his person:
1 - Lacerated wound 3 cm × 0.5 cm, × the scalp deep on left side of skull 10 cm above left ear, blood clot present, kept under observation and x-ray advised.
2 - Pellet induced lacerated wound on his right side of front of chest 10 cm × 8 cm, area above left nipple, lacerated wound about 8 in number, average size 0.2 cm into 0.2 cm hole in shape, blackening present, around the wound, bleeding on touch, kept under observation and advised x-ray.
3 - Contusion 10 cm × 2 cm on the right side of front of abdomen below right subcostral, red in colour.
4 - Contusion multiple in number on lower part of abdomen in an area of 8 cm × 6 cm, average size 3 cm into 2 cm, 5 cm below umblicus.
106. He has opined that injury no. 1, 3 and 4 could have been caused by blunt object while injury number 2 could have been caused by a firearm. X-ray was advised keeping the injury no. 1 and 2 under observation. The nature of the injury no. 3 and 4 were found to be simple and were received within one day. The patient was referred from District hospital Muzaffarnagar, regarding which police was informed. According to him, injury no. 2 was possible to have been caused on 25/02/2010 at 2.30 p.m. by fire arm and all these injuries were received within 24 hours of the medical examination. He has proved the said medical report which is marked as Exhibit Kha - 5. He had conducted medical examination at the reference slip of District hospital Muzaffarnagar.
107. In cross examination this witness has stated that the injured Sarfaraz was not admitted although he had come there at about 12.50 p.m.. He could not tell as to for how long they stayed in the hospital. He was brought in fully conscious condition. He did not find any abnormality in his general condition nor did he enquire from him as to where did he get those injuries. He also did not enquire anything about FIR being lodged in respect of the said occurrence in which he received these injuries however he had informed about it to the Medical College police on phone but he does not know whether police had arrived or not. He also does not recollect whether x-ray was conducted of the injured and whether the same was placed before him for preparing supplementary report or not. He does not recollect whether the injured had undergone any operation or not. The injury no. 2 was lacerated wound, but he could not tell as to from how much distance a fire would be required to be made for causing such kind of wound. He could not tell whether any pellet was taken out of injury no. 2 after operation. He further stated that when contusion is caused, its colour would be red and would remain so between 12 to 24 hours. Injury number 3 and 4 could have been received by him 5 to 10 minutes prior to conducting of the medical examination. Injury no. 1 was a lacerated wound and the blood clots within 6 hours. He could not tell the duration of injury no. 2. Injury no. 3 and 4 could have been manufactured. He has denied to have prepared the false medical exemption report in collusion with the accused. He could not tell about the nature of the injury no. 2. He could not tell whether the injury was dangerous to life or not. He could not tell the depth of the pellets. The pellets were not in front of him today. He had not stitched any injury of the injured.
108. This witness is a formal witness, who has stated to have medically examined the injured Sarfaraz upon being referred from District hospital Muzaffarnagar on a reference slip. He has clearly admitted that the said patient was not admitted and that he was not in a position to disclose the nature of the injuries as to whether they were dangerous to life or not because no x-ray report was presented before him for supplementary report to be prepared. He has gone to the extent of saying that injury no. 3 and 4 could have been manufactured. He has also noticed that the injured was not in a critical condition, rather was fully conscious. Therefore from his statement the said injured does not appear to have suffered any serious kind of injuries.
109. From the side of the learned counsel for the appellants it has been argued that in the present case one died while three are stated to have become injured on the side of prosecution in this occurrence and elaborated that the deceased was Naseem while the injured were Khalil (PW 3), Raiyyan and Shakir. While on the side of defence, accused Sarfaraz had received injuries caused from the side of prosecution, but no explanation was given thereof. The place of occurrence has also been changed. In fact the occurrence had started at the medicine store which was about 600 - 700 metres away from the house of the informant and the prosecution has shifted place of occurrence by showing it that accused side had assaulted the complainant side by fire arms inside the gher of the complainant side and further shifted the place of occurrence by stating that the accused had made fire upon the deceased Naseem from the staircase. There was no motive for giving effect to this occurrence, however attention was drawn to the last Para of page 48 of the paper book in which it was mentioned that the effort was made by the prosecution to create motive that few days prior to this occurrence a quarrel had taken place between brothers of PW 1 Irfan namely, Naseem and Khalil with the accused side, was not any serious kind of quarrel which would create motive to commit the present occurrence and that is why PW 1 failed to disclose the names even of those persons who were playing the volleyball on the said date. Much emphasis was laid on the right of self-defence because it was argued that accused Sarfaraz opened fire upon deceased Naseem as Naseem along with the other three namely, Khalil, Raiyyan and Shakir had assaulted Sarfaraz with Lathi Danda, country made pistol and gun at the medicine shop and when Naseem was about to make fire on Sarfaraz, he (Sarfaraz) had snatched gun from the hand of the Naseem and ran towards his house to save his life and had made fire upon the complainant side in defence. It was also emphasized that the injuries caused to the accused Sarfaraz were not explained by the prosecution side which clearly indicates concealment of origin of the occurrence. Attention has also been drawn to the fact that Majrubi Chitthi were given to the injured prior to lodging of the F.I.R. which shows that the F.I.R. was anti-timed. No x-ray was conducted of the injured although PW 6 had examined all the three injured. Hence it was evident that the injuries sustained by them could not be serious. Attention was drawn to the statement of PW 6, Dr. Pradeep Mittal who had stated that for knowing the nature of injuries he had referred the injured persons to the surgeon and attention was also drawn to page 139 and 140 of the paper book in which this witness has admitted that there was no reference of crime no. on the three injury reports. The medical examination of all the three injured was conducted between 3:15 PM to 3:35 PM while the F.I.R. was lodged at 4:30 PM. Attention was also drawn to the statement of PW 1 at page 43 and 44, wherein this witness has admitted that cross case of the present case under sections 307, 504, 506 IPC was going on in the court, complainant of which was Shaukat, father of the injured Sarfaraz, in which charge sheet was submitted against real brothers of PW 1 namely, Naseem (deceased) , Khalil, Raiyyan and Shakir. Attention was also drawn to the statement of PW 1 at page 67 in which he has stated that Sarfaraz had received the injury, was apprised to him by SO after he (PW 1) lodged report. This witness also had admitted that in the said case his brothers named above had got themselves bailed out. The attention was also drawn to page 72 of the paper book in which PW 1 has denied the suggestion that on 25/02/2010 at 2:30 PM Sarfaraz had gone to take medicine from the medical store of Farukh and at that time Naseem, Khalil, Raiyyan and Shakir having Lathi, country made pistol and gun, tried to drag Sarfaraz into their house and that in the lane by the side of the house of the complainant, Sarfaraz was caused injuries by Lathi by Khalil and Raiyyan and both the them along with Naseem, who was armed with gun, had caught hold of Sarfaraz and then Shakir had exhorted ''mar sale ko goli' and at this Shakir made fire on Sarfaraz with an intention to kill him by country made pistol and when Naseem was about to make fire on him by the gun in his hand Sarfaraz snatched the same from his hand and thereafter all the four above named complainant side chased him, then Sarfaraz opened fire upon them in order to defend himself and somehow returned home to save his life. The attention was also drawn to the statement of PW 2 Raiyyan at page 75 of the paper book in which he admitted that the case under sections 307, 504 and 506 IPC was got registered by father of Sarfaraz against the complainant side. The attention was also drawn to the statement of PW 3 Khalil at page 99 of the paper book in which this witness has also admitted the case having been registered against the complainant side by Shaukat. It was argued that the place and time of incident of both the occurrences are one and the same. On behalf of the accused Arshad it was also argued that improvement has been made in respect of place of occurrence by the prosecution side, which shows that the occurrence happened in some other manner than in the manner as has been stated in the F.I.R. No role was assigned to him hence he cannot be treated to be a member of unlawful assembly. He had no motive of committing offence, hence his conviction with the aid of sections 149 IPC was bad in law. Nothing was recovered from his possession. It was also argued on behalf of the appellants that no blood was found on the staircase nor any pellets were found there , which would indicate that the occurrence did not take place there. The incident took place at the medicine shop of Farukh where Sarfaraz had already received firearm injury and then he had snatched the gun and when he fled to save his life, the complainant side had chased him. On 27 /02/2010 recovery of paunia , a small gun has been shown from him . In order to conceal the genesis of the incident, the injuries caused to the accused Sarfaraz have been concealed. No blood was found on the third floor/storey of the house which also shows that no incident took place there. In fact the occurrence took place in the manner as was mentioned in Exhibit Kha - 1 and not as mentioned in Exhibit Ka - 1.
110. From the side of prosecution it was vehemently argued that the cross case has been concocted by the father of the accused i.e. Shaukat . It is very unnatural that the injured Sarfaraz was taken to Sasural of Shaukat in Sher Nagar and thereafter he was shown in District hospital Muzaffarnagar , from where he was referred to Meerut for medical examination. No defence was taken in the statement under sections 313 Cr. P.C. that the accused Sarfaraz had made fire in defence. It clearly proved beyond reasonable doubt by the prosecution side that it were the accused who had come prepared with common object of the unlawful assembly formed by them to make assault upon the deceased and the other injured persons in order to kill them and with that object in mind they had opened fire upon them by which deceased had died and three other injured had received injuries. The appeal therefore deserves to be dismissed.
111. After having heard the arguments of both the sides and having perused the entire evidence on record we find that according to prosecution version, about 7-8 days prior to the present occurrence, a dispute had occurred between informant's brothers i.e. Naseem (deceased) and Khalil (PW-3) on the one hand and accused Sadiq on the other, while they were playing volleyball, which was settled between them by intervention of some villagers but accused Sadiq had given a threat to them to see. In pursuance of the said threat on 25.2.2010 at about 2:00 pm, accused Sadiq, his brother Sahid and other family members namely Arshad, Rashid, Sarfaraz, Farukh and Mumtaj came at the house of informant armed with country made pistols and guns and Sadiq abused Naseem "Sale Naseem Tujhe Dekhna hai" and then all of them entered the house of informant and started making fire with an intention to kill, in which PW-1's brother Naseem, Khalil, Raiyyan and his nephew Shakir received fire arm injuries. The informant fled from there in order to save his life, while the accused taking the brothers of the deceased and his nephew dead, had also fled from there. The informant had taken the injured persons to the Muzaffar Nagar District Hospital, where his brother Naseem was declared dead, while Khalil was fighting for his life.
112. On the other hand, the version of the defence is that ten days ago prior to the present occurrence, the son of Shaukat namely, accused Sarfaraz had a quarrel with Naseem (deceased) S/o Shamshuddin in respect of weighing of buggi of sugarcane at Kolhu and the same was got settled by few persons present there. At that time Naseem had given threat to Sarfaraz that he would see him but ignoring that threat, his son Sarfaraz had gone on 25.2.2010, at about 2:30 pm, at the medical store of Farukh to bring medicine for his father Shaukat, right then, Naseem (deceased), Khalil (injured), Raiyyan (injured) S/o Shamshuddin and Shakir (injured) S/o Raiyyan, came there at the said medical store armed with Lathi, country made pistols and guns in their hands and forcibly tried to drag Sarfaraz to their house and Sarfaraz was assaulted by Khalil and Raiyyan by Lathi in the lane adjacent to their house and Raiyyan, Khalil and Naseem, who were having guns, had caught hold of Sarfaraz and then Shakir had told "Mar Sale Ko Goli", at this exhortation, Shakir made fire upon Sarfaraz by country made pistol in his hand with an intention to kill and as soon as Naseem was about to make fire upon Sarfaraz, Sarfaraz sensing that he might be killed, snatched gun from the hand of the Naseem and thereafter all the four above persons had chased Sarfaraz, who in order to save his life, made fire and somehow saved his life and came home. It is further the case of the defence that the family of complainant side was big and they all reached the house of accused due to which the accused had closed his door and windows and in the night after concealing themselves, had gone to Shernagar (Sasural of Shaukat) and from there accused- Sarfaraz was taken to Muzaffarnagar District hospital but from there he was referred to Meerut for medical examination because of serious injuries. Shaukat had given an application dated 2.3.2010 addressing to D.I.G., Saharanpur, whereon after the order having been passed, a cross-case was registered as Crime No. 163A of 2010, under Sections 307, 504 and 506 IPC against complainant side, which included Naseem (deceased), Khalil, Raiyyan and Shakir on 10.3.2010 at 18:30 pm.
113. It could be most pertinent to mention here that from the side of accused, F.I.R. has been lodged against the complainant side showing the occurrence to have taken place on 25.2.2010 at 2:30 pm in which deceased Naseem along with other injured namely Khalil, Raiyyan and Shakir have been made accused, while from the side of prosecution, the occurrence is shown to have taken place on 25.2.2010 at 2:00 pm, which raises a question as to how incident could have been done by Naseem (deceased) at 2:30 pm when he is stated to have died, by prosecution side, in occurrence, which took place at 2:00 pm, this question does not appear to have been dealt with by the trial court on the basis of evidence adduced from both the sides. It is also apparent from the judgment of the trial court that it has taken the occurrence of Crime No. 163A of 2010 to be not a cross case of the occurrence of Crime No. 163 of 2010 and has treated them to be two separate incidents having been committed at two different point of time and has awarded punishment to both the sides.
114. In order to prove the prosecution case, which has been mentioned above, the informant Irfan (PW-1) has supported the said version in examination-in-chief by saying that on the date of occurrence i.e. 2.5.2010, he along with his brother was taking off fodder from the buggi after having returned from the field to be placed on the fodder machine to be cut, right then at about 2:00 pm, all of a sudden accused Sadiq armed with country made pistol and accused Sahid, Arshad, Rashid, Sarfaraz, Mumtaj and Farooq armed with country made pistols entered his house saying "Maro salon ko" and at this, they all opened fire from the respective weapons in their hands, in which his brother Naseem, he himself, Khalil, Raiyyan and his nephew Shakir had received fire arm injuries. He saved his life by concealing himself. The women of the house had raised alarm and also after hearing the sounds of fires, people had assembled there but the accused fled from there, giving him threats and, thereafter, he with the help of other family members had taken his injured brother to hospital taking along with him a constable from the police Chauki of the village but doctor pronounced Naseem dead, while other injured brothers were got admitted for treatment. The F.I.R. has been promptly lodged because occurrence took place at 2:00 pm while on the same day the F.I.R. has been lodged at 2:30 pm, though the distance of the village Harsauli, where the occurrence took place from the P.S. was 7 kms. This witness has been cross-examined at length. He has stated in cross-examination that by 3:15 pm, he had reached Government Hospital Muzaffar Nagar and soon, thereafter, the doctor declared Naseem dead. The accused had started the occurrence soon after coming there. One accused, started abusing seeing him Naseem ran towards the staircase. All were armed with country made pistols except Sadiq, who was armed with gun. Soon after coming there, accused started firing upon them, about 14-15 fires were made. As soon as fire started, the complainant side fled from there. The place where fodder was being cut, Naseem, Khalil, Raiyyan and Shakir had received injuries and they, thereafter, fled from there. Raiyyan, Khalil and Shakir had jumped towards the northern wall to save their life, while Naseem fled towards the third floor of his house, who was chased by the accused. He had received fire arm injury when he had turned around to see the accused. The I.O. has shown the place where Naseem was lying in injured condition by ''X' on the third floor of the complainant's house in site plan, which is Ext. Ka.-19.
115. It is apparent from the statement of this witness that initially the firing took place near the fodder machine, where deceased Naseem along with his other brothers was busy in cutting the fodder and when the assault was made by the accused side, three of injured, who are named above, crossed over the northern boundary to save their life, while the deceased Naseem ascended the third floor of the house but he was pursued by the accused and fire was made upon him even from the staircase and ultimately he lay in deeply injured condition at place ''X' from where he was taken down after the accused had fled from there. Similarly PW-2, Raiyyan, who is also an injured witness, has supported the version of prosecution stated above, whose statement has been mentioned above in detail. The third injured namely, Khalil, has also supported the prosecution version as narrated above.
116. All these three injured witnesses have been cross-examined at length except Irfan but nothing such has been elicited in cross-examination, which would make their presence doubtful on the place of occurrence particularly because of them being injured witnesses. The injuries received by them have been proved by PW-6, Dr. Pradeep Mittal, who found injured Khalil to have suffered five injuries, all were lacerated wounds, although he has stated that to know the nature of said injuries, he had referred the patient to surgeon. The injuries caused to Khalil were suffered on face, left shoulder, left hand, left chest and right thigh. Similarly, the other injured Shakir had received one lacerated wound on his head. The third injured Raiyyan had received two lacerated wounds, one on little finger and the other on left hand. These injured were also referred to surgeon for knowing the nature of injuries. It is true that these three injured were examined by Dr. between 3:15 pm to 3:35 pm, although F.I.R. was lodged at 4:30 pm, which establishes that injuries were examined by the Dr. before lodging the F.I.R. It can be well understood that if somebody has assaulted by fire arm weapons, the primary aim of all the injured and his family members would be to get themselves medically examined first rather than rush to the police station to lodge F.I.R., therefore, we find that nothing adverse should be inferred in the present case merely because the injuries were got examined by Doctor prior to lodging the F.I.R. simply on that count it cannot be said that the F.I.R. was ante-timed and no benefit should be allowed to go to the accused because of this reason.
117. As regards, the deceased Naseem, his post mortem was conducted by R.S. Verma (PW-7) on 26.2.2010 at 11:00 am and had found six ante mortem wounds on his person. Injury no. 1 was on his forehead, injury no. 2 was on his face, injury no. 3 was on his neck, injury no. 4 was on his clavicle and injury no. 5 was on his chest, while injury no. 6 was also on chest. All these injuries were fire arm injuries, which according to the doctor were possible to have been caused on 25.2.2010 at 2:00 pm by which the deceased would have died. Therefore, it is well established by the testimonies of PW-6 and PW-7 that all the injuries sustained by the three injured named above as well as one deceased were fire arm injuries and the assailants/accused were also established by the prosecution side to have been armed with country made pistol and gun by which they are stated to have fired upon them, therefore, the ocular testimony is corroborated by the medical examination reports in the present case.
118. As regards the motive of giving effect to this occurrence, it is mentioned by all the three witnesses of fact i.e. PW-1, PW-2 and PW-3 that about 7-8 days prior to this occurrence, a dispute had arisen between the deceased Naseem and Khalil on the one hand and accused Sadiq on the other while playing volleyball, which was resolved by the villagers at that time but the accused Sadiq had given threat to the deceased that he would see him and it was in pursuance to this threat that the present occurrence was given effect to. The said animosity which has been proved by all the three witnesses is found to be sufficient by us for giving effect to the present occurrence by the accused.
119. As regards the place of occurrence, regarding which it was argued by the learned counsel for the appellants that it has been shifted because according to the defence, the occurrence had started at the shop of medicine belonging to Farukh, which was adjacent to the lane, where accused Sarfaraz had gone to purchase medicine for his father and it was there that the three injured mentioned above as well as deceased had gone there, who all had tried to drag the accused Sarfaraz towards their house and in the process one fire was also made by one of the injured witnesses, while two others including the said injured witness had caught hold of Sarfaraz and Shakir had made fire upon Sarfaraz with an intention to kill him and, thereafter, when Naseem (deceased) tried to also make fire upon him, his gun was snatched by Sarfaraz in order to save himself and fled towards his house and while he was being chased, he made fire upon the complainant side. It is further argued by the learned counsel for the appellants that the accused are stated to have entered the 'Gher' of the complainant side where they are stated to have made fire upon the deceased and the injured persons indiscriminately but neither any marks of bullets were found on the walls of the 'Gher' nor any cattle, which are stated to be tied there, received any injuries, which shows that the said occurrence did not happen, rather the occurrence happened in some other manner. It was also argued that place of occurrence is shifted by showing the incident to have happened inside the 'Gher' near the fodder cutting machine and, thereafter, when the injured fled from there in order to save their life crossing the wall, the accused chased the deceased Naseem, who headed towards the third floor of his house and he was stated to have been fired upon from the staircase. In this regard there were inconsistent statements of PW-1 to PW-3 as some of them have stated that the accused had followed the deceased right up to third floor and shot him there, while others have stated that the fire was made upon the deceased only from the staircase, such kind of discrepancies would make case of prosecution doubtful. We are not inclined to accept this argument of learned counsel for the appellants because in a situation like the one in the present case in which as many as seven accused are stated to have made indiscriminate firing in prosecution of common object of the unlawful assembly formed by them in order to eliminate the deceased and kill other injured persons, it would be difficult for the witnesses, even if they are injured witnesses, who have seen the occurrence, to divulge distinctly as to which of accused had made fire and from where. It has come in evidence beyond any doubt that all the seven accused, who have been named in the F.I.R., had entered in the 'Gher' of the complainant side in order to eliminate the deceased and caused injuries to the injured persons in prosecution of common object of unlawful assembly formed by them.
120. In this regard, it would be pertinent to mention here that the place of occurrence would extend from the place, where initially firing was made near the fodder cutting machine and, thereafter, right up to the place where deceased Naseem was found lying in injured condition at place shown by ''X' at the third floor, therefore, from the evidence on record, we do not find that there was such kind of shifting of place of incident, which would make the prosecution case to be doubtful.
121. Now we would dealt with aspect of the defence case which has been stated above.
122. From the side of defence, four witnesses have been examined to prove their defence. From among the eye-witnesses, Hakikat has been examined as DW-1, whose testimony has already been mentioned above by us and we find that he has tried to prove the defence version in examination-in-chief that he was witness of the occurrence of 25.2.2010 at 2:30 pm, which happened at the medical store of Farrukh, where he was present when accused Sarfaraz had come to take medicine for his father and it was then that Naseem (deceased) Khalil, Raiyyan and Shakir had come there armed with Lathi, country made pistol and gun and had tried to drag Sarfaraz into their house and Shakir was beaten by them in the lane adjacent to the house of the complainant, who was caught hold up by Khalil, Raiyyan and Naseem. Shakir had exhorted that 'Mar Sale Ko Goli', at which Shakir had fired upon Sarfaraz by his country made pistol and as soon as Naseem was about to make fire, Sarfaraz sensing threat to his life, had snatched the gun from his hand and fled towards house in order to save himself, they were pursued by the complainant side and in order to save his life, Sarfaraj made fire upon the complainant side by the said snatched gun. Later on he came to know that Naseem had died. The said occurrence was seen by Gayoor, Musarraf, Imroz and none of these witnesses have been examined in defence from the side of accused. In cross-examination, made by the complainant side, the testimony of this witness was found to be not confidence inspiring because he had admitted that he failed to know as to where Sarfaraz had gone after having got injured. The narration made by him of the said injured-accused because having fallen and again getting up and then again getting hit by bullet and then again getting up and finally making fire upon the complainant side in order to save himself, does not sound natural. He has further stated that he continued to stay there and witnessed this incident and could not tell as to whom shot hit, which was made by Sarfaraz. Had he been present on the spot. He certainly would have seen the person, who was hit by the shot made by Sarfaraj, therefore the testimony of this witness is not trustworthy and it appears that because of being close to the accused side, he had made false statement.
123. As regards, DW-2, who is Dr. R.S. Verma, it may be mentioned that he had simply referred the accused Sarfaraz on 26.2.2010 at 9:25 pm, when he was brought in emergency in District Hospital, Muzaffarnagar to the medical college Meerut, and he failed to give explanation as to who had recorded the injury in respect of the said patient, which mentioned Pellet induced injuries over right side chest and trauma over posterior chest wall. He has simply proved Ext. Kha-2, which is reference slip. He has also admitted in cross-examination that no X-ray was shown to him at the time of medical inspection made of the said patient. From the statement of this witness, we do not find that he found the accused to be in serious condition.
124. DW-3, S.I. Bagesh Kumar Sharma, he had conducted the investigation of the alleged cross-case, in which he submitted charge sheet. He in cross-examination, has stated that Shaukat had not told him that Naseem told Shakir 'Mar Sale Ko Goli'. This witness had also not stated to him that all the four accused (complainant side) made fire upon Sarfaraz, rather it was told by him that Sarfaraz had made fire.
125. This witness has stated that he did not record the statement of any persons/eye-witnesses living in vicinity in respect of correctness of the present occurrence, which happened with Sarfaraz. He has also stated that the informant of the cross-case was not eye-witness and he has not taken any eye-witness to the place of incident for making site plan. It appears from the statement of this witness that he did not make serious effort to come to the truth of the occurrence nor does it appear that he evaluated this fact as to how it was possible that according to prosecution side, the occurrence took place at 2:00 pm in which Naseem had died, while the same deceased had been made accused along with three other injured persons in a cross-case in respect of the occurrence, which is stated to have occurred at 2:30 pm on the same day as a dead person could not be believed to have participated in the said occurrence, which falsifies the whole defence version.
126. Dr. Mukund Pal Singh has been examined as DW-4, who has proved four injuries on the person of accused Sarfaraz. Injury no. 1 is incised lacerated wound on the left side of the head, injury no. 2 is incised lacerated wound on left side of chest and injury no. 3 is contusion on abdomen in right side and injury no. 4 is contusion on abdomen covering large area and has proved his injury memo, which is Ext. Kha-5. In cross-examination, this witness has clearly stated that the said injured-accused was not admitted in hospital. He was fully in conscious condition, no abnormality was found in his general condition. From his statement, it can fairly be gathered that the said injured was not having any serious kind of injuries and this witness has gone to the extent to state that injury no. 3 and injury no. 4 could have been manufactured.
127. On the basis of defence witnesses, we are of the view that the defence version does not appear to be trustworthy and the same needs to be discarded, while the prosecution has been able to prove its case to the hilt on the basis of sound proof of evidence which has been discussed above and, therefore, these appeals deserve to be dismissed with respect to all the accused having been held guilty by the trial court in crime no. 163 of 2010, under Section 148, 307 read with 149, 302 read with 149, 452 IPC and 7 Criminal Law Amendment Act, and is accordingly, dismissed.
128. Since all the accused were armed with deadly weapons, the offence under Section 147 does not stand proved because none of the accused was armed with ordinary weapons. Therefore, the accused mentioned-above stand acquitted of offence under section 147 IPC.
129. We further are of the view that on the basis of evidence of PW-4, Constable Sahab Singh, and PW-5, S.I. Bogesh Kumar Sharma, PW-8 S.I. Pramod Kumar and P.W. 9, S.I. Balzor Singh, it is also evident that on 27.2.2010 at about 1:20 pm, from the possession of the accused Sarfaraz and Sahid one 12 bore gun and one cartridge of 12 bore and one country made pistol of 315 bore and one live cartridge of 315 bore were recovered for which they did not possess any valid license and, therefore, the trial court has also held them guilty under Section 25 of Arms Act rightly. Therefore, appeals of the accused persons for being held guilty under Section 25 of Arms Act also stand dismissed.
130. Now it would be pertinent for us to express our opinion as to whether the punishment awarded by the trial court is on the higher side as they have been awarded punishment under Section 302 read with 149 IPC for being hang till death.
131. As regards reduction of the sentence from death penalty to life imprisonment, we would like to rely upon the law laid-down by Supreme Court in Farooq @ Karattaa Farooq & Ors vs. State Of Kerala (2002) 4 SCC 697 in which in paragraph no. 8 following is held:
"Next question which is to be considered is as to whether the High Court was justified in upholding the death penalty imposed against appellant Farooq and appellant Sathar. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Bachan Singh v. State of Punjab, AIR 1980 SC 898, as well as, following the same, three Judge Bench decision of this Court in Machhi Singh & Ors. v. State of Punjab 1983 (3) SCC 470, wherein various circumstances have been enumerated and it was laid down that if the case squarely falls within its ambit, only in that eventuality, death penalty can be awarded. It was observed that in rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise retaining death penalty, such a penalty can be inflicted. In the facts and circumstances of the present case, it is not possible to come to the conclusion that the present case would fall within the category of rarest of rare one. Therefore, we are clearly of the opinion that in the fitness of things, extreme penalty of death was not called for and the same is fit to be commuted to life imprisonment."
132. It is apparent from the above position of law that death penalty should be awarded only in circumstances as enumerated in the above-mentioned cases and only in that eventuality when collective conscience of the community is so shocked that it will expect the court to inflict death penalty irrespective of their personal opinion as desirability. In the present case, we find that facts were not such as would shock our conscience to that extent that we would feel compelled to award death penalty because the murder in the present case is not committed in such gruesome manner that it will require imposition of death penalty.
133. In this regard, in our opinion, this is not one of such cases in which the offence of murder is committed in such gruesome manner that it would require imposition of death penalty. The accused are stated to have made fires upon the deceased and also on other three injured persons by which they have received injuries. Therefore, we find it adequate that ends of justice would be met if the punishment under Section 302/149 IPC is reduced to that of life imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, two months simple imprisonment. Rest of the punishments which have been awarded under the above mentioned sections do not require any interference and they are upheld.
134. Accused are in jail.
135. The Criminal (Capital) Appeal No.205 of 2015 stands partly allowed and the reference for confirmation stands rejected.
136. The Criminal Appeal Nos. 206 of 2018 and Criminal Appeal No.207 of 2018 stand dismissed.
137. Let a copy of this judgment be transmitted to the court below along with original record of lower court for necessary information and compliance forthwith.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order date: 31.07.2019 A.U./A.Mandhani/A.P. Pandey