Allahabad High Court
Aftab Ahmad And Ors. vs State Of U.P. on 10 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 45, (2020) 3 ADJ 1 (ALL)
Bench: Manoj Misra, Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved A.F.R. Court No. - 47 Case :- CRIMINAL APPEAL No. - 1294 of 1985 Appellant :- Aftab Ahmad And Ors. Respondent :- State Of U.P. Counsel for Appellant :- Mukhtar Alam Counsel for Respondent :- A.G.A. Hon'ble Manoj Misra,J.
Hon'ble Mrs. Manju Rani Chauhan,J.
(Delivered by Manju Rani Chauhan, J.)
1. This appeal has been preferred by appellants, namely, Aftab Ahmad, Laiq Ahmad, Imtiaz Ahmad @ Addey, Sukha, Afzal Ahmad, Chootey Mian @ Afsar Ahmad, Chhutawa @ Sakeel Ahmad and Bullar @ Abdul Sattar against the judgment and order dated 14.05.1985 passed by VIth Additional District and Sessions Judge, Bareilly in Sessions Trial No. 144 of 1982 arising out of case crime no. 231 of 1979, police station Bhojipura, District Bareilly, whereby all the appellants have been convicted under section 147, 323/149, 307/149 and 302/149 Indian Penal Code and the appellant nos. 1, 2, 3 and 6 have also been convicted under section 148 IPC. The appellants have been sentenced for life imprisonment under section 302/149 IPC and with respective lesser punishments for other offences mentioned above and all the sentences were to run concurrently.
2. According to the prosecution version, the incident in question is alleged to have taken place on 16.12.1979 at about 01:30 P.M., for which the first information report is alleged to have been lodged on the same day at about 03:30 P.M. by Jamal @ Jamaluddin, who also received injuries in the incident. The prosecution case as narrated in the first information report is that the first informant was having litigation regarding his land with one Sagir Ahmad S/o Abdul Rahim, resident of his village, in which the informant succeeded and was in possession of the land. On account of this, Sagir Ahmad and his family members bore a grudge with the informant and his family members and they wanted to grab possession of the land illegally. On the date of incident, at about 01:30 P.M., when the first informant Jamal (Jamaluddin) and his sons Khairuddin (the deceased), Ashfaq (PW2) and Riyazuddin (PW1) were plowing their field, the accused persons, namely, Sagir Ahmad S/o Abdul Rahim (died during trial), Aftab Ahmad S/o Iqbal Ahmad (Appellant no.1), Chhotey Mian S/o Sagir Ahmad (Appellant No.6), Addey S/o Sagir Ahmad (Appellant No.3), Laeeq Ahmad S/o Jamil Ahmad (Appellant No.2) armed with guns and Afzal Ahmad S/o Sagir Ahmad (Appellant No.5), Chhutawa S/o Khaleel Ahmad (Appellant No.7), Sukha S/o Jamil Ahmad (Appellant No.4), Bullad S/o Nazir Azmad (Appellant No.8), armed with lathis, came to the field and started abusing and threatening informant side and started plowing the field with their tractor. When Khairuddin (the deceased) tried to stop them, accused Sagir Ahmad shouted that this Khairuddin is posing himself more than what he actually is and, thereafter, fired upon him from his gun, due to which Khairuddin sustained injuries, fell on the spot and died. Other accused Chhotey Mian, Laeeq Ahmad, Aftab Ahmad started firing upon Ashfaq from their guns causing him injuries. The other accused persons assaulted the first informant and his son Riyazuddin by lathi. It is alleged that the accused persons after killing Khairuddin and causing injuries to first informant and his sons Riyazuddin and Ashfaq ran away towards village along with their tractor, whereas the dead body of Khairuddin was lying in the field. It is stated in the first information report that as the condition of Ashfaq was serious, the first informant took Ashfaq and Riyazuddin to Bareilly Hospital whereas the written information to the police station was being sent through Mohd. Ayub @ Doctor S/o Mohd. Jahur Ahmad, who lodged the first information report at police station Bhojipura on the same day, at 03:30 P.M., giving rise to case crime no. 231 of 1979, U/s 147 , 148, 149, 302 ,307,323 IPC. In the first information report, it is also stated that the aforesaid incident was witnessed by Habib Ahmad S/o Khaleel Ahmad, Abdul Kareem S/o Mohd. Raza, Rafeeq Ahmad S/o Abdul Haq and few others.
3. The record further reveals that after registration of the first information report, the investigation commenced and the Investigating Officer went to the spot, prepared inquest report, recovered blood stained soil and empty cartridges etc, from the spot and prepared memo of recoveries and also prepared site plan. After inquest, the dead body was sent for post mortem examination which was conducted on 17.12.1979 at District Hospital, Bareilly by Dr. J.N. Bhargava (C.W.-2), the then Medical Officer, Bareilly and in his report (Ex. Ka-16) noted following ante mortem injuries on the person of the deceased: -
"1. Gun shot wound of entry 0.5 cm x 0.5 cm x skin deep on right cheek 3.5 cm below lateral & of right eye;
2. Contusion 6 cm x 2 cm on right side of chest upper part 8 cm below tip of right shoulder;
3. Contusion 8 cm x 2 cm on right side of chest 5 cm below right nipple;
4. Multiple gun shot wounds of entry in an area of 30 cm x 27 cm on front lower part of mid of abdomen pelvic region and front and outer aspect of right thigh 11 cm above knee joint. Blackening present. Average size 0.4 cm x 0.4 cm. Skin muscle and cavity deep 14 shots were recovered from thigh region.
5. Abraded contusion 10 cm x 6 cm in front of right leg upper part 8 cm below right knee joint underneath. Both bone fractured."
The doctor noticed that peritoneum was punctured under injury and in the cavity 1 litre fluid was present with fecal material present. In all 25 shots/pellets were recovered. The cause of death of the deceased was mentioned on account of shock and haemorrhage due to ante mortem injuries.
4. The record also reflects that medical examination of the injured persons namely, Ashfaq (PW2), Jamaluddin (informant) and Riyazuddin (PW1) was also conducted on 16.12.1979 at District Hospital, Bareilly and as per medical examination report (Ex.Ka-13), following injuries were noticed on the body of the injured Ashfaq:
"1. Lacerated wound 5 cm x 1/2 cm x Bone deep on Rt. Side scalp 8 cm above Rt.-ear.
2. Abraded contusion with traumatic swelling 7 cm x 4 cm on Lt. Side forehead.
3. Multiple gunshot wounds of entries with inverted margins, in the area of 12 cm x 24 cm x U/o on Lt. Upper lateral hip, Lt. flank, Lt. lower lateral chest wall. No blackening and tattooing present over the wounds. Disbursement is about 2.5 cm, oozing of blood present.
4. Four gunshot wounds of entries with inverted margins, on Lt. post elbow in the area of 8 cm x 7 cm x 11.0, no blackening & Tattooing present over the wounds. Disbursement is about 2.5 cm, oozing of blood present from the wounds.
5. Contusion 13 cm x 3.5 cm on Lt. back in the middle.
Opinion- Injury no.5 is simple, Injury nos. 1, 2, 3 and 4 kept under observation and advised for X-ray. Injury nos. 1, 2 and 5 were caused by blunt object and injury nos. 3 and 4 were caused by fire arm. Duration was reported to be fresh."
5. In the X-ray report (Ex.Ka-18) of Ashfaq Ahmad, following opinion has been expressed by the Radiologist: -
"No bony abnormality is seen. One small radio-opaque shadow of metallic density in the injuries of abdomen left side and four similar shadows in the same side, probably due to pellets. X-ray: left elbow shows three small radio-opaque shadow of metallic density, in the region of elbow, probably due to pellets. X-ray left hip shows multiple small radio-opaque shadows of metallic density in the region of hip and toe region. Probably injuries due to pellets."
6. As per the medical examination report (Ex.Ka-14) of the injured Jamaluddin (informant), following injuries were found:
"1. Lacerated wound 1.5 cm x 0.3 cm x scalp on Rt-side and Scalp, 5 cm above Rt. eye brow.
2. Lacerated wound 0.6 cm x 0.3 cm x skin on Lt. eye brow.
3. Lacerated wound 2 cm x 0.8 cm x skin on Lt. fore-arm, on lateral side, 5 cm above wrist joint.
4. Contusion 3 cm x 2 cm on Rt. hip.
5. Contusion 4 cm x 2 cm on Rt. posterior shoulder.
Opinion: - All injuries are simple, caused by blunt object. Duration fresh"
7. As per the medical examination report (Ex.Ka-15) of the injured Riyazuddin (PW1), following injuries were found on the body of the injured: -
"1. Lacerated wound 2 cm x 1 cm bone deep on Lt. Side scalp 6 cm above Lt. ear.
2. Lacerated wound 1.5 cm x 0.3 cm x scalp on Lt. Side ant. Scalp, 8 cm above Lt. eye brow.
3. Lacerated wound 0.5 cm x 0.5 cm x skin on the root of Lt. middle finger on posterior side.
4. Abrasion 1/2 cm x 0.2 cm on Lt. thumb posterior side.
5. Contusion 11 cm x 5 cm on Lt. thigh lateral side in the middle.
6. Contusion 4 cm x 1.5 cm on Lt. hip.
7. Contusion 10 cm x 4 cm on Lt. upper arm on Lat. Side.
Opinion:- injury no.1 was kept under observation and injury nos. 2 to 7 are simple in nature. All injuries have been caused by blunt object."
8. Upon completion of the investigation, the Investigating Officer submitted charge-sheet bearing No. 42 dated 15th March, 1980 against all the accused persons i.e. appellants herein under Sections 147, 148, 323/149, 307/149 and 302/149 I.P.C., upon which cognizance was taken by the concerned Magistrate and thereafter, the case was committed to the Court of Sessions giving rise to Sessions Trial No. 144 of 1982. The trial court vide order dated 25.02.1983 framed charges against all the accused appellants under sections 147, 323/149,307/149 and 302/149. The accused Sagir Ahmad (since deceased), Aftab Ahmad, Chhotey Mian, Adday and Laeeq Ahmad, who were armed with guns, were charged under section 148 IPC also. The record further reveals that the accused persons were charged separately in the following manner:-
"i. Accused Afzal Ahmad, Sukha, Chhutwa @ Shakeel Ahmad and Buller were also charged with section 323 IPC simplicitor.
ii. Accused Chhotey Mian, Laeeq Ahmad and Aftab Ahmad were charged with section 307 IPC for having fired and caused injuries to Ashfaq Ahmad with their guns.
Iii. The deceased accused Sagir Ahmad in addition to the foregoing charges was also separately charged with section 302 IPC simplicitor for having caused murder of Khairuddin."
9. The prosecution in support of its case produced two witnesses of facts namely, P.W.1 Riyazuddin, who is injured and is brother of the deceased; and P.W.2 Ashfaq Ahmad, who is also injured and is brother of the deceased. Apart from these two witnesses of fact, the prosecution examined P.W.3 Janardan Arora, Sub-Inspector, the second investigating officer who submitted charge sheet. The record reflects that the genuineness of injury reports and post mortem reports were accepted by the defense under section 294 Cr.P.C. However, the trial court summoned three persons as court witnesses, namely, C.W.1 Abdul Gafur, the scribe of the first information report, who proved the written report as having been dictated by the first informant Jamaluddin, C.W.2 Dr. J.N. Bhargava who conducted post mortem on the cadaver of deceased and proved the post mortem report and C.W.3 Om Prakash Saxena, the Executive Magistrate, Tehsil Bareilly who recorded statement of injured Ashfaq Ahmad on the date of the incident at about 07:45 P.M. as a dying declaration. But since P.W.2 Ashfaq Ahmad survived, it has been utilized by the trial court as his previous statement.
10. Apart from the oral testimony, the prosecution also relied upon documentary evidence, which was exhibited. The police papers regarding initial investigation by first investigating officer Sangram Singh were exhibited as Ext. Ka.-1 to Ext. Ka.-11 at the instance of the second investigating officer Janardan Arora as the first investigating officer Sangram Singh had died. He also proved that part of the investigation, which was done by him as also the charge sheet submitted by him (Ext. Ka-12).
11. In addition to above, the prosecution also relied upon some documentary evidence to prove the possession and title of first informant over the land in dispute. The same are catalogued herein-below:
"Ext. Ka-19, copy of the judgment of the Asst. Collector/Tehsildar, Bareilly dated 16th March, 1970 directing the name of Jamaluddin to be mutated over the land in dispute;
Ext. Ka-20 copy of the extract of Khatauni mutating the name of Jamaluddin over the land in dispute and expunging the name of Smt. Raqiban;
Ext.Ka-21 copy of the judgment of the Board of Revenue dated 28th February, 1981 rejecting the revision of Smt. Raqiban; and Ext. Ka-22 copy of the search application, which shows that Jamaluddin filed an appeal against the order dated 27th January, 1984 passed by A.C.O. Fatehganj, wherein stay order has been passed."
12. The accused persons in their statements recorded under section 313 Cr.P.C. denied their involvement in the crime and stated that they have been falsely implicated due to old enmity between the parties regarding land dispute. They denied that the first informant Jamaluddin, since deceased, was in possession of the land in dispute and that they went to take forcible possession over the land in dispute on 16.12.1979. The accused persons further stated that they were in possession over the land in dispute since much before the incident.
13. The accused Imtiaz Ahmad @ Addey in his statement under Section 313 Cr.P.C. further stated that the land in dispute was in their possession and on the date of the alleged incident, when he and Afsar @ Chhotey Mian were ploughing their field, Jamaluddin, Khairuddin, Ashfaq Ahmad, Akhlaq Ahmad and Riyazuddin armed with country made pistol and lathi came on the spot and assaulted them. His brother Afsar defended himself by using lathi and they lodged the report of the incident and the trial is pending. The accused persons also relied on documents which they filed as Ext. Kha.-1 to Exhibit Kha-21 and examined two defense witnesses i.e. D.W.1 (Dr. Vinod Sahgal), who had examined the accused Imtiaz Ahmad @ Addey and Afsar Ahmad @ Chhotey Mian for their injuries, and D.W. 2 (Damodar Sahai), the then Peshkar of Chief Judicial Magistrate, Bareilly, who proved the alleged dying declaration i.e. previous statement of Ashfaq Ahmad recorded by Executive Magistrate.
14. The accused also filed the certified copy of their first information report (Ext. Kha-7) to show that Jamaluddin, Riyazuddin, Khairuddin, Ashfaq came to the disputed field armed with country made pistol and lathis on 16.12.1979 at about 2.00 P.M. to prevent the informant side (accused herein) from ploughing their agricultural field by tractor. It is alleged that these persons fired with their pistol, with intention of causing death, as a result, Imtiaz, who was ploughing the field with his tractor, sustained injuries. It was stated in the first information report (Ext. Kha-7) that they (accused persons of case in hand) took shelter behind the tractor and ran towards the village but Ashfaq (P.W.-2) fired from his pistol, as a consequence whereof, a pellet hit Imtiaz's leg. Another brother of accused Imtiaz, namely, Afsar @ Chhotey Mian, was also beaten with lathis. That first information report (Ext. Kha.-7) was lodged by Imtiaz on 16.12.1979 at 4.30 P.M., in which the time of occurrence was alleged to be 02.00 P.M., at the same place of occurrence, where the incident of the case in hand took place. The accused also relied upon the injury reports of Afsar Ahmad and Imtiaz Ahmad, which were marked as Ext. Kha-1 and Ext. Kha-2. These injury reports were proved by Dr. Vinod Sehgal (D.W.1), Medical Officer in District Jail, Bareilly, with the help of the register maintained in District Jail, by stating that in his register, dated 18.12.1979, at serial no. 1312, Afsar Ahmad S/o Sagir Ahmad accused was examined by him at 04:05 P.M. and one simple injury on his person was found to be caused by some blunt object. At the time of medical examination, the injury of Afsar Ahmad was about 2 and ½ days old. He placed its copy as Ext. Kha-8. Besides this, Dr. Vinod Sehgal DW-2 stated that at serial no. 1313, the injuries of Imtiaz Ahmad S/o Sagir Ahmad are also mentioned showing four injuries on his person, out of which, three were simple and regarding injury no.4, X-Ray was advised.
15. In addition to above, the accused also filed certified copy of the injury report (Ex. Kha-8) obtained from the cross-case, which is the injury report relating to accused Afsar Ahmad @ Chhotey Mian S/o Sagir Ahmad, who was examined by Dr. G.S. Gangapangi on 16.12.79 at 10:10 P.M. at P.H.C., Bhojipura. The injuries noticed therein were as follows:-
"1. Lacerated wound 6cm x 0.5 cm scalp over 13 cm above Rt. ear obliquely placed.
2. Swelling over Rt., wrist of outer medical surface.
No signs of dislocation and fracture.
Nature- simple, caused blunt object Duration half day old."
16. The same Medical Officer also examined the injuries of Imtiaz Ahmad on the same date at 10.35 P.M., which was noticed in Ext. Kha -9 as follows:-
1. Abrasion 11 x 0.5 cm over the dorsal surface of Rt. ring finger extending from base of nail obliquely placed.
2. Abrasion 0.5cm x 0.6 cm over the dorsal surface of Rt. middle finger extending from base of nail.
3. Abrasion 0.5cm x 0.2 cm over dorsal surface Rt. thumb extending from basis of Rt. thumb.
4. Rounded lacerated wound 0.5 cm x 0.5 cm muscle deep over the posterior part of Lt. thigh 13.5 cm above knee joint.
Nature: Injuries No. 1, 2 and 3 simple and injury no.4 under observation advised X-Ray, Lt. thigh for presence of any foreign body from District Hospital, Bareilly.
Cause: Blunt object Duration: About half day. Sd/- 15.12.79"
17. Lastly, the defense relied upon the alleged dying declaration (Ext. Kha-3) purporting to have been made by (P.W.2) Ashfaq Ahmad at District Hospital, Bareilly before the Executive Magistrate Sri O.P. Saxena C.W. 3, who was examined as court witness under section 311 Cr.P.C. He claimed to have recorded Ext. Kha.3 at 7.45 P.M. on 16.12.1979. The defense relied/utilized the same as previous statement of PW2 to demonstrate contradictions in the prosecution case with the case taken in the first information report (Ext. Ka- 1) as well as the prosecution evidence led during the course of trial. This document was produced by one Damodar Sahai (D.W.-2), reader to the Chief Judicial Magistrate, Bareilly, who stated that it (Ext. Kha -3) was received in the court of Chief Judicial Magistrate, Bareilly on 17.12.79 along with the copy of G.D. No. 41, dated 16.12.1979, at 6.30 P.M. (Ext. Kha-5) from police station Kotwali. The intimation slip (Ex. Kha-4) of the Medical Officer at Civil Hospital, Bareilly, was also relied by the defense in order to show that Ashfaq Ahmad (P.W.-2) was mentally fit for recording his declaration. Sri Om Prakash Saxena, Tehsildar (C.W.-3) stated that Sri P.L. Verma, SDM, Bareilly ordered him to record the dying declaration (Ext. Kha- 3).
18. The accused Laeeq Ahmad raised a plea of alibi by filing mark-sheet and the scheme of his B.A.M.S. examination held by the Kanpur University between December, 1979 and January, 1980. The mark-sheet (Ext. Kha-17) disclosed that accused Laeeq Ahmad was permitted to appear again in B.A.M.S. examination as a supplementary candidate.
19. In order to show their possession over the land in dispute, the defense relied on following documents:-
i. Ext, Kha.-6, which is the certified extract of Khasra disclosing that Sagir Mohd. was recorded in cultivatory possession of Khasra nos. 415,466,467,493,495 to 499 and 555 to 561 in 1386 fasli ii. Ext. Kha- 1, which is an extract of khatauni from 1383 to 1388 fasli disclosing that name of Jamaluddin (deceased-informant) along with others was recorded over the said plots and in place of names of Mohd. Ismail and Smt. Raqiban, the name of Sagir Ahmad (accused) had also been mutated on 18.4.78.
iii. Ext. Kha- 11 is a certified copy of an order of Naib Tehsildar dated 14.4.79, whereby he directed that the name of Smt. Raqiban be struck off and that of accused Sagir Ahmad be mutated.
20. The accused after closing of evidence of court witnesses (C.W.-1, C.W.-2 and C.W.-3) filed certified extracts of khasra for the years 1386 fasli to 1388 fasli, which was marked as Ext. Kha-16 indicating therein that Sagir Ahmad deceased-accused was also recorded as co-tenure holder of certain plots with deceased Jamal i.e. Jamaluddin.
21. The trial court after considering the evidence on record came to the conclusion that the prosecution witnesses are wholly reliable; the accused party was aggressor; and the injuries of accused persons are superficial in nature for which no explanation was required. The trial court found accused persons guilty for the charges framed against them, as they constituted an unlawful assembly and were liable as members thereof.
22. The accused Sagir Ahmad died during trial, whereas appellant no.3 Imtiaz Ahmad @ Adday S/o Sagir Ahmad, appellant no.5 Afzal Ahmad S/o Sagir Ahmad; appellant no.6 Chhotey Mian @ Afsar Ahmad S/o Sagir Ahmad; and appellant no.8 Bullar @ Abdul Sattar S/o Nazir Ahmad, died during the pendency of the appeal and their appeal stood abated vide separate orders dated 21.01.2019 and 08.05.2019. Thus, this appeal survives qua appellant no.1 (Aftab); appellant no.2 (Laeeq Ahamd); appellant no.4 (Sukkha); and appellant no.7 (Chhuttwa).
23. Learned counsel for the surviving accused-appellants has strenuously contended that they have been falsely implicated in the crime in question and the prosecution version is not proved beyond reasonable doubt and in this regard, following contentions have been put forth:-
(a) The prosecution has miserably failed to prove its case beyond reasonable doubt, inasmuch as it has failed to prove that the incident occurred in the manner alleged.
(b) The prosecution witnesses are partisan/inimical to the accused and the independent eye-witnesses named in the FIR have not been produced and have been purposely withheld.
(c) The medical evidence is in conflict with alleged eye witness account and it materially affects the reliability of witnesses.
(d) Material improvements have been made by the prosecution witnesses at every stage of the case, which make them wholly unreliable.
(e) The injuries suffered by the accused persons have not been explained by the prosecution and the manner, origin and motive of the quarrel has been suppressed by the prosecution.
(f) The trial court did not appreciate the evidence in correct legal perspective and misread the evidence.
(g) In the alternative, it is submitted that in the peculiar facts and circumstances of the case, the prosecution had miserably failed to prove that formation of an unlawful assembly with a common object to commit murder and as such, the accused appellants can therefore be held liable only for their individual act, if at all it is proved beyond doubt.
24. On the other hand, the learned Additional Govt. Advocate has supported the prosecution case and has submitted that the time and place of the incident is admitted to the defense and that the defense has impliedly admitted the presence of accused persons on the spot by setting up their own case that they were attacked by the informant's party while they were ploughing their field. The prosecution was not obliged to explain the injuries of the accused persons, as they were superficial in nature. Moreover, the accused persons constituted an unlawful assembly, inasmuch as they were more than five in number and were armed with weapons of assault including firearms, which were used in causing injuries to the deceased, as well as other persons, therefore, it cannot be said that the common object of the unlawful assembly was not to commit murder. The learned A.G.A. submitted that the prosecution has fully established its case beyond the pale of doubt and the trial court's findings are well discussed, which calls for no interference.
25. In the light of the above noted rival submissions, this court proceeds to examine the evidence available on record. P.W.1 (Riyazuddin) is an injured witness. He has stated about the close relationship of the accused persons inter se. He has stated about informant party's possession and title over the land in connection with which the incident occurred, though he admitted about litigation pending in court. Regarding incident, he has stated that on 16.12.1979, he along with his elder brother Khairuddin, younger brother Ashfaq Ahmad and father Jamaluddin were ploughing a field of Sumere Kurmi which they had taken on lease (batai) and which was located at a distance of just about 100 to 150 paces from the field in dispute. At about 01:30 P.M., all the named accused persons came with tractor to plough the disputed land. While accused Sagir Ahmad, Aftab Ahmad, Chhotey Mian, Laeeq Ahmad and Addey had guns in their hands, the other named accused persons had lathis. Upon seeing this Khairuddin went to that field and stood in front of the tractor and asked them to stop ploughing the field. P.W.1 (Riyazuddin), his father Jamaluddin and younger brother Ashfaq also reached there. At this juncture, accused Addey, who was driving the tractor, asked Khairuddin to move aside, otherwise he would be a victim but Khairuddin refused to budge, whereupon accused Sagir Ahmad by stating that Khairuddin is posing himself to be a wrestler and will not remove himself, fired upon Khairuddin, who died instantaneously, as a result of the gun shot. Upon which, P.W.1 (Riyazuddin) and his brother Ashfaq Ahmad and father Jamaluddin came towards Khairuddin. Seeing that, accused Aftab Ahmad, Chhotey Mian and Laeeq Ahmad, by their respective guns, fired upon Ashfaq Ahmad, who fell on the spot after receiving gunshot injury. Thereafter, P.W.1 (Riyazuddin) and his father Jamaluddin were assaulted by accused Afzal Ahmad, Chhutwa, Bullar and Sukhha with lathis causing injuries to them. Thereafter, co-villagers Rafeeq Ahmad, Habib Ahmad, Abdul Karim and others arrived on the spot and rebuked the accused persons, who ran away with their tractor. He further stated that his father (Jamaluddin) got the first information report of this case written at the house of Abdul Gafur Master and sent it to the police station through Mohd. Ayub @ Doctor for lodging the same. Thereafter, P.W.1, his father Jamaluddin and brother Ashfaq Ahmad came to Sadar Hospital, Bareilly where they were medically examined. Ashfaq Ahmad remained in the hospital as indoor patient for about 20-21 days.
26. In the cross examination, P.W.1 (Riyazuddin) admitted that prior to this incident, his father filed two criminal complaints against the accused persons, one against accused Sagir Ahmad, Afzal Ahmad, Adday, Chhotey Mian, Bhura and Khalifa for maarpeet and another criminal complaint against accused persons Sagir Ahmad, Afzal Ahmad and Adday for causing mischief by dismantling the mendh (boundary marks). He has further admitted in the cross examination that the name of Smt. Rafikan was mutated on the land in dispute about six years back and thereafter the name of Sagir Ahmad was mutated in place of Rafikan and since 16.12.1979, the name of Sagir Ahmad was continuing in revenue records for the land in dispute. He has denied possession of Sagir Ahmad over this land, however, he has admitted that during consolidation operations, Sagir Ahmad won the case from subordinate consolidation court, resulting in carvation of Chak in favour of Sagir Ahamd, though a revision has been filed by P.W.-1. He has further stated in cross examination that he was ploughing the field of Sumere Kurmi which his brother Khairuddin had taken on lease (batai). He has stated that his father Jamaluddin wrongly mentioned in the first information report that he (Jamaluddin) and his sons Khairuddin, Ashfaq Ahmad and Riyazuddin were ploughing the land in dispute and he cannot say as to how this mistake occurred in the first information report. When his statement was taken on next day by police Inspector, first information report was read out to him but he did not inform the police Inspector that the above mentioned facts were wrongly written in the first information report. He was also cross examined on the manner of assault, according to which he had initially stated that at the time of actual shooting deceased Khairuddin was standing in front of tractor almost touching it and other accused persons were standing 1-2 paces behind the tractor, however subsequently he modified his statement to the effect that other accused persons were standing 4-5 paces behind the tractor and they fired from that position. He reiterated that the deceased Khairuddin had received one gunshot injury and died instantaneously. The accused persons were armed with gun and lathi only and no one was having Ballam. P.W.1 and his family members neither had weapon nor they caused injury to any of the accused persons and that he did not see any injury on the person of any accused and he cannot say as to how the accused persons received injuries. He however denied possession of accused person on the land in dispute and also denied the suggestion that he and his family members went to the place of incident armed with lathi and country made pistol. He further stated that at the time of assault no other person was there. According to the record, this witness was recalled on 02.05.1984, when he proved the written report by stating that on 16.12.1979, his father Jamaluddin dictated the report in his presence to Abdul Gafur and then Abdul Gafur read out his report to his father (Jamaluddin) and thereafter his father put his thumb impression on the written report.
27. P.W.2 (Ashfaq Ahmad) is also an injured eye witness. He is son of first informant Jamaluddin and is brother of P.W.1 Riyazuddin. He allegedly received gunshot injuries and other blunt weapon injuries in the aforesaid incident. His statement on oath was recorded on the date of the incident itself at about 07:45 P.M. by the Executive Magistrate after obtaining the certificate from the doctor that the injured is in a fit state to give statement and this statement is on oath. The aforesaid statement which is now to be treated as a previous statement reads as under:-
"अशफाकvgen iq= teky mnnhu vk;q 25 वर्ष fuoklh& /kkS: Vkat] Fkkuk eksthiqjk] ftyk cjsyh us सशपथ c;ku fd;k fd vkt djhc nksigj 1-30] 2 cts vius [ksr ij dke dj jgk Fkk fQj ykyk th lxhj vgen iq= gkth vCnqy jghe] vQtky iq= lxhj vgen NksVs fe;kW iq= lxhj vgen] vM~Msiqj lxhj vgen] igyoku cqYgM+ iq= uthj vgen] शकील vgen mQZ ?kqVok iq= gkth [kyhy feLVj vk;s fQj ,d vkQrkc iq= bdcky crk;k vk;sA bu lc esa ls vkQrkc] vQtky vkSj cqgYM+ igyoku ds ikl nksukyh cUnwd Fkh ,oa vkSj Hkh FkhA vQtky us xksyh pykbZ tks esjs dqguh vkSj dks[k ij NjsZ yxsA xksyh vkSj Hkh pyh ysfdu eSa बेहोश gks x;k eq>s ugh irk fd fdl fdl us pykbZA 3 vknfe;ksa ij Hkkys vkSj ykBh FkhA [ksr ij esjs vykok esjs 2 HkkbZ vkSj ,d cki Fks HkkbZ;ksa dk uke [kSj mnnhu vkSj jktmnnhu gSA bu yksxks ds Hkh NjsZ yxs gSA igys बेहोश gks x;k Fkk tc होश vk;k rc Hkkxk Hkkxrs le; nh[kk dh HkkbZ ogh iM+s gq;s FksA gekjk bu ls eqdnek py jgk FkkA ge uk;c lkgc ds ;gkW ls thr x;s] vkSj fQj dysDVj lkgc ds ;gkW ls Hkh thr x;s blh jaftश dh otg ls bUgksus esjs o esjs ?kj okyks ds xksyh ekjh gSA c;ku lqudj rLnhd fd;kA O.P. Saxena Executive Magistrate Certified that above mentioned pt. named Asfaq Ahmad is in full sense to record his dying declaration SD.-
10-5-86
28. During his examination in Court, P.W.2 (Ashfaq Ahmad) has corroborated the statement of P.W.1 Riyazuddin in each and every material aspect of the matter including manner of assault. Regarding manner of assault, he has corroborated P.W.1 Riyazuddin and has stated that when he and his family members reached the land in dispute, about 2-3 Biswa of the land had been ploughed by the accused persons with the help of the tractor. He stated that Khairuddin stood in front of the tractor about 6-7 paces away and accused persons were about 1-2 paces behind the tractor. He stated that Khairuddin received only one gunshot injury and died on account of that injury and that no other injury was received by him.
29. Upon being confronted with his previous statement, he stated that he does not remember as to whether he had given any statement to Magistrate in the hospital or to the police inspector. The statement recorded by the Magistrate was put to him to contradict his statement in Court but he expressed his inability to explain the contradictions and stated that he could not say as to how those contradictions occurred in his statement. He stated that first information report was dictated by his father in his presence at about 02:30 P.M. He denied the suggestion that informant side had caused injuries to accused persons. He stated that no accused had received any injuries in front of him.
30. It is relevant to mention here that the statement of P.W.2, which was recorded on 16.12.1979 itself, at about 07:45 P.M., by the Executive Magistrate in the shape of dying declaration, on oath, was withheld by the prosecution. From the judgment of the learned trial court, it transpires that the stand of the prosecution before the trial court was that this statement is fabricated and was never given by the witness P.W.2. But, this statement was relied by the defense to question the reliability and genuineness of ocular testimony of P.W.2 (Ashfaq Ahmad) by showing various contradictions and improvements therein. The trial court summoned and examined the Executive Magistrate Sri Om Prakash Saxena as C.W.3 to prove the aforesaid statement of P.W.2 Ashfaq Ahmad and thus, it was exhibited as Ext.-C1. The defense also examined D.W.2 (Damodar Sahai), the then Peshkar of Court of learned C.J.M., Bareilly where the aforesaid statement was sent in a sealed cover.
31. P.W.3 Sub-Inspector Janardan Arora, the then Station Officer of police station Bhojipura has been examined by the prosecution regarding investigation part of the case. He was second Investigating Officer and had submitted the charge sheet. The first Investigating Officer Sub Inspector Sangram Singh had died and thereafter, the investigation was handed over to P.W.3 Janardan Arora. He has proved the police papers including various recovery memos prepared by first Investigating Officer by stating that he was acquainted with his signature and hand writing. He has proved Ext. Ka 2 to Ext. Ka 13. Apart from his formal evidence, he has stated in cross examination that he had investigated the issue regarding alibi of Sagir Ahmad and had interrogated various persons in this regard. However, after obtaining legal advice, he submitted charge sheet against Sagir Ahmad also. He has stated that in the site plan, about one fourth of total area of the land in dispute was found to be ploughed. He was confronted with the statement of PW1 Riyazuddin and PW2 Ashfaq Ahmad recorded under section 161 of Cr.P.C., upon which he stated that in their statement, it was mentioned that "Taeed FIR karte hue bataya" and in the statement of Ashfaq Ahmad recorded under section 161 Cr.P.C. that "Maine ek bayan Magistrate Sahab ko bhi aspatal mein jakhmi halat mein diya".
32. The trial court also summoned and examined the scribe of the first information report, namely, Abdul Gafur as C.W.1, who stated, in his examination-in-chief, that Jamaluddin had dictated the first information report to him and he wrote exactly the same as was dictated by Jamaluddin. After writing the written report, he read it over to Jamaluddin and thereafter Jamaluddin put his thumb impression on it. In his cross examination, he has stated that first informant Jamaluddin and Ashfaq (injured witness) had come for writing the first information report and he did not see Riyazuddin, Khairuddin and Akhlaq as they did not come. He has also stated that neither he went to the police station nor police approached him thereafter.
33. The trial court further examined Dr. J.N. Bhargava, C.W.2, who has proved the post mortem report and has stated about the ante mortem injuries mentioned in the post mortem report. He has stated in his cross examination done by State Counsel that injury nos. 2,3 & 5 are not possible from fire arm and they could be caused by collusion with some heavy object, such as lathi or butt of a gun. With regard to fire arm injury i.e. injury no.4, he has stated that this injury had blackening and could have been caused by gun shot fire from within a distance of 4 feet, while injury no.1 could have been caused from a much greater distance. He also could not tell whether injury no.4 was caused by fire from country-made pistol or gun, which according to him, could be told by Ballistic Expert. He has denied the suggestion that injury no.5 may be possible by wheel of some vehicle.
34. The trial court further examined C.W.3 Om Prakash Saxena, Executive Magistrate, who had recorded the statement of injured Ashfaq Ahmad as dying declaration. He stated that the aforesaid statement was recorded on 16.12.1979 at about 07:45 P.M. Before recording the statement he had asked the doctor as to whether the injured is in fit state of giving statement and he had also obtained the certificate of the Emergency Medical Officer on duty in this regard and only then, he recorded the statement of Ashfaq Ahmad. He has also stated that the statement was recorded by him as was stated by the injured and at the time of recording of statement, no other person except him and injured were present. He has denied the suggestion of the state counsel that the aforesaid statement was concocted by him with the help of doctor.
35. Now, in the light of the aforesaid material, the court proceeds to examine the prosecution case and the submission made by defense as well as by the learned Addl. Govt. Advocate. The first submission of the learned counsel for the accused appellant is that both the prosecution witnesses are wholly partisan and are inimical and the independent persons who are named in the first information report as eye witnesses have been withheld and, therefore, in these circumstances, the tainted evidence of P.W.1 and P.W.2 is liable to be rejected. In order to appreciate this plank of submission, the position of law which is now well settled by a catena of decisions of Hon'ble Apex Court may be recapitulated through the observations of their Lordships of Supreme Court in the case of "State of U.P. vs. Ballabh Dass" , AIR 1985 SC 1384, which are as under:
"There is no law which says that in the absence of any independent witnesses, the evidence of interested witnesses should be thrown out at the behest or should not be relied upon for convicting an accused. What the law requires is that where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. We might also mention that the evidence of interested witnesses is not like that of an approver which is presumed to be tainted and requires corroboration but the said evidence is as good as any other evidence. It may also be mentioned that in a faction ridden village, as in the instant case as mentioned by us earlier, it will really be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses".
36. Without burdening this judgment by citing further case-laws, suffice to say that statement of a prosecution witness, whether independent or related to first informant or deceased, has to be tested on its own strength in the light of evidence available on record.
37. In the present case both the parties, first informant as well as the accused, have sought to demonstrate that they were ploughing their own field. The defense case is that the informant's party was the aggressor and the incident did not occur in the manner alleged by the prosecution. On the other hand, the prosecution case is that time and place of occurrence and the presence of accused-appellants are not only proved but also admitted and the injuries of the accused persons are superficial in nature and, therefore, the prosecution has fully proved its case against the accused. The trial court has concluded that the first informant was in possession of the land in dispute and the accused persons were aggressor. In the above backdrop, the evidence has to be considered and analyzed by this court.
38. At the very outset, it may be noticed that the law with regard to burden of proof is well settled that the initial burden is upon the prosecution to prove its case beyond reasonable doubt and it never shifts. This burden has to be discharged in totality and the prosecution cannot take shelter of any weakness of the defense case. It is useful to quote the observations made in the case of Woolmington v. Director of Public Prosecution", 1935 AC 462, which is as follows:-
"Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any statutory exceptions. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge and where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
39. In the case of Sharad Birdi Chand Sharda v. State of Maharashtra, AIR 1984 SC 1622, their Lordships of the Supreme Court observed as follows:-
"It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this : where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defense or a plea which is not accepted by a court."
40. First of all, the court proceeds to examine the origin, motive and manner of assault as stated by both the prosecution witnesses. In this respect, the prosecution case as well as defense of accused persons revolves around the issue of possession of the land in dispute and the right and entitlement of the parties to defend it. In the first information report, it was specifically stated by the first informant Jamaluddin that he and his sons including the deceased Khairuddin were ploughing their field (land in dispute) and at that time the accused persons came and started ploughing the field with their tractor. This fact was reiterated by P.W.2 in his previous statement recorded by Executive Magistrate. However in their statement recorded during trial, the P.W.1 and P.W.2 started saying that the first informant and his sons including the P.W.1 and P.W.2 were ploughing the field of Sumere Kurmi, which was taken by them on lease (batai) and this field is situated at a distance of about 100-150 paces from the field in dispute. In this regard, a specific question was put to P.W.1 in his cross examination, upon which he stated that the fact that his father and they were ploughing the field in dispute is wrongly mentioned in the first information report and he cannot say as to how this mistake occurred. He even stated that, on the next day of the incident, when his statement was recorded by the Investigating Officer, under Section 161 Cr.P.C, the first information report was placed before him but he did not disclose to the Investigating Officer that this fact was incorrect. On the other hand, from the statement of Investigating Officer P.W.3 (Janardan Arora), it is clear that P.W.1 had made his statement under Section 161 Cr.P.C. approving the version of first information report. P.W.-1 further stated in his re-examination that the first information report was dictated and written in his presence and thereafter it was read over by the scribe Abdul Gafur (C.W.1) to the first informant in his presence. From the above discussion, it is obvious that this deviation is deliberate and intentional and has not been explained by P.W.1 in any plausible manner. It assumes importance when this court peruses the statement of P.W.1 (Riyazuddin), in his cross examination, that on two earlier occasions, his father Jamaluddin had filed two criminal complaints against Sagir Ahmad and other co-accused but both were dismissed and that the land in dispute was initially mutated in the name of Smt. Rafikan and thereafter name of Sagir Ahmad was mutated in her place and the same continues. He has further admitted that during consolidation operation the land in dispute was allotted to Sagir Ahmad and Chak was also carved out in his name though he had filed revision against the orders passed by sub-ordinate Consolidation Courts. After this admission by P.W .1, the claim of the first informant and the prosecution witnesses that they were in possession of the land in dispute and the case was decided in their favour becomes extremely doubtful because when it is admitted that Chak has been carved out in favour of the accused, it would be deemed that the accused entered into exclusive possession. Unfortunately, the trial court did not consider and discuss the statement of prosecution witnesses properly while deciding the issue of possession in favour of first informant. After examining the documentary evidence filed by the prosecution i.e. Exhibit Ka-19, Ka-20, Ka-21 & Ka-22 read with the admission of prosecution witnesses in their cross examination, it is very difficult to conclude that the first informant was in possession of the land in dispute at the time of incident. Ext. Ka-19 is a certified copy of the order of the Asst. Collector/Tehsildar, Bareilly dated 16th March, 1970 directing the name of Jamaluddin to be mutated over the land in dispute. However perusal of the aforesaid order shows that in his cross examination in the aforesaid case of mutation, the P.W.1 Jamal (first informant Jamaluddin) admitted at internal page no.2 that he did not move any application for expunction of the name of Illias @ Mohammad Ismail during consolidation operation. Similarly P.W.2 of that mutation case Mohd. Ismail also admitted in his cross examination, which has been discussed in internal page no.3, that the applicant did not file objection during consolidation operation. The aforesaid admission of the prosecution witnesses Jamaluddin and Mohd. Ismile made in those proceedings reflecting that consolidation operations had already started and were going on and the informant had not claimed any right or title on the land in dispute in consolidation operations is of great significance.
41. Ext. Ka-22 is the copy of the search application, which shows that Jamaluddin filed an appeal against the order dated 27th January, 1984 passed by A.C.O. Fatehganj, wherein stay order was passed. This also shows that the order passed by ACO, Fatehganj was in favour of Sagir Ahmad against which Riyazuddin etc. had filed an appeal before the Settlement Officer Consolidation,Bareilly. P.W.1 has admitted in his cross examination that the land in dispute was initially mutated in the name of Rafikan and thereafter name of Sagir Ahmad was mutated in her place and the same is still continuing. He has further admitted that during consolidation proceeding, the land in dispute was allotted to Sagir Ahmad and Chak was also carved out in his name and he filed revision against the order passed by Subordinate Consolidation Courts. It will not be out of place to mention here that under the consolidation operation, the rights and title in respect of agricultural land falling in the consolidation area have to be decided by the Consolidation Officer and jurisdiction of any other court is barred. Against the order of Consolidation Officer, the appeal lies before the Settlement Officer Consolidation and thereafter a revision lies before Deputy Director Consolidation. Obviously, Sagir Ahmad had won the case in the court of Consolidation Officer therefore revision was filed by the informant party, as admitted. In view of this admission of P.W.1, the claim of the first informant and the prosecution witnesses that the case was decided in their favour and they were in possession of the land in dispute on the date of incident is unworthy of acceptance. Unfortunately, the trial court did not consider and discuss this statement of P.W.1 (Riyazuddin), while deciding the issue of possession of land in dispute and committed error by holding that at least the informant party was in joint possession as co-owner when, otherwise, by carvation of Chak, co-ownership and joint possession ceases. In these circumstances, the prosecution case as set forth in the first information report and in the previous statement of injured P.W.2 (Ashfaq Ahmad), to the effect that they were ploughing their own field in dispute, when accused persons arrived there and assaulted, was changed at the stage of trial, by claiming that they were ploughing the field of Sumere Kurmi. This court is thus of the firm opinion that the prosecution has miserably failed to prove that the land in dispute was in exclusive, actual and physical possession of the first informant. Rather, it appears to us that accused party were in possession and were ploughing their field when the incident occurred.
42. When we examine the statement of P.W.1 with regard to manner of assault, we find that it is in conflict with medical evidence as several blunt weapon injuries have been found on the person of the deceased, which have not been explained at all. In the cross examination of C.W.2, Dr. J.N. Bhargava, conducted by the State Counsel, he has categorically stated in para no.4 of his deposition that injury nos. 2, 3 & 5 are not possible by fire arm and are result of hard and blunt object. None of the witnesses including P.W.1 and P.W.2 have stated that the deceased was assaulted with any blunt weapon. On the other hand, it has been categorically stated that the deceased received only one gunshot injury and died instantaneously. The injury nos. 2, 3 & 5 are not possible by falling down as the place of incident is an agricultural field. Moreover, both the underneath bones in respect of injury no.5 were found fractured. This is possible only by multiple blows of some blunt weapon, that too with full force. Even with regard to gunshot injuries, the witness C.W. 2, Dr. J.N. Bhargava, has categorically stated that injury no.4, which is gunshot injury contains blackening and could have been caused from a distance of four feet, while the P.W.1 has stated that the distance of deceased with the assailants was much more. The deceased was standing in front of tractor, 4-6 paces away, whereas the assailants were few paces behind the tractor. It is also noteworthy that the accused Sagir Ahmad, who allegedly caused fire arm injury to deceased, was allegedly armed with a gun. The dispersal of the pellets in injury no.4 is of such nature and in such area (30 cm x 27 cm) that it is not possible, if the shot is fired from a gun within 4 feet. According to the medical jurisprudence (Modi), the dispersal of the pallets in inches is equal to the distance of fire arm in yards. In these circumstances the gun causing such dispersal should have been fired from a distance of at least 12 yards but in that case blackening would not have been there in the wound, which is possible only when the distance of fire arm would have been few feet away, say about 4 feet, as stated by C.W.2. At this stage, it would be useful to notice the writing of Dr. N.K. Modi in his famous treatise Modi's Medical Jurisprudence and Toxicology, 21st Edition, at page no. 269, with regard to the effect produced by small shots fired from a short gun and the mode of calculation of distance of fire arm. The relevant portion is extracted below:
"At a distance of one to three feet small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed with unburnt grains of powder. On the other hand, at a distance of six feet the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from an unchoked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from a fully choked barrel and 50 inches from an unchoked one. A rule of thumb in long usage is that the diameter of the spread of the shot pattern on the skin in inches is roughly equal to the distance from the muzzle in yards "
43. It is well settled by a catena of decisions that it is the duty of the prosecution to prove, and, if necessary, by examining an expert, that the particular injury has been caused in the manner alleged by the prosecution, otherwise, the accused may be entitled to the benefit of doubt. In the case of Mohinder Singh vs. State AIR 1953 SC 415, The Hon'ble Court observed as under:-
"In a case where death is due to the injuries or wounds caused by lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case. It was found doubtful whether the injuries which were attributed to the accused were caused by a gun or a rifle. It seemed more likely that they were caused by a rifle than a gun, and yet the case of the prosecution was that the accused was armed with a gun and in his examination it was definitely put to him that he was armed with the gun."
44. Now comes another aspect of the case that is with regard to injuries sustained by some of the accused persons and the effect of its non-explanation by the prosecution. The legal position in this regard has been meticulously examined and decided in various pronouncements of the Hon'ble Apex Court. In the case of Laxmi Singh vs. State of Bihar (1976) 4 SCC 394, the Hon'ble Supreme Court after considering the various earlier cases observed as under:-
12. ....in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
45. In the case of Dashrath Singh vs. State of U.P. (2004) 7 SCC 408, the Apex Court observed as under:-
"The injuries of serious nature received by the accused in the course of the same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. It is here that the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may prima facie make a dent on the credibility of their evidence. So also where the defence version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of non-explanation of the injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions abovecited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version."
46. In this case, P.W.1 has not explained the injuries sustained by the accused persons and on being asked he categorically stated that he saw the accused coming armed with fire arms and lathis but informant party did not pick any lathi or gun and they neither used any weapon in their defense nor caused any injury to any accused.
47. That apart, the Investigating Officer recovered the upper part of Ballam from the place of occurrence and made a memo, which is Ext. Ka- 6. But P.W.-1 has stated that he did not see any accused armed with Ballam. From the above discussion, this court is of the view that even if the presence of P.W.-1 is accepted at the place of occurrence but this witness cannot be wholly reliable, as he appears to be suppressing material facts.
48. Now we proceed to appreciate the evidence given by P.W.2. The statement of P.W.2 is in line with the statement of P.W.1. Like P.W.1, he has deviated from the version of the first information report by stating that he and his brothers including his father were ploughing the field taken on lease from Sumere Kurmi. He also disclosed that Khairuddin was fired upon by Sagir Ahmad from his gun and he died instantaneously after gunshot injury and that the deceased Khairuddin had received only one gunshot injury and no other injury by any other weapon. When he was confronted with his earlier statement recorded by C.W.3, Om Prakash Saxena, Executive Magistrate, he stated that he could not remember as to whether his statement was taken by the Magistrate or not. He could not remember as to whether his statement was recorded in police station or not. He expressed his inability to explain the other contradictions that appeared in his previous statement with the version given in court.
49. In the opinion of this court, feigning ignorance by this witness about recording his statement by the Investigating Officer and by the Executive Magistrate is deliberate to avoid rendering explanation to the contradictions that appeared in his previous statement with the statement in court. Under the circumstances, this witness is also not wholly reliable inasmuch as he is suppressing facts and is making improvement from his earlier version. In fact, the trial court has noticed this aspect and while discussing the statement of this witness, the trial court had observed, at internal page no. 26 of trial court judgment, as follows:
"Even if P.W.2 is excluded from the evidence due to the said inconsistency, the incriminating evidence of P.W.1 still remains on record who consistently and substantially corroborated the prosecution. The testimony of P.W.1 being an injured witness is enough to sustain the conviction of the accused. Under these circumstances, the inconsistencies in the dying declaration/previous statement of P.W.2 (Ext. Kha-3) and oral evidence of P.W.2 are not so important and material as to throw away the whole prosecution story which is adequately corroborated in material particulars by the reliable evidence of PW1."
50. We are not in agreement with the view of the trial court that PW1 is wholly reliable. Rather, we are of the view that both the prosecution witnesses P.W.1 (Riyazuddin) and P.W.2 (Ashfaq Ahmad) are not wholly reliable as they have lied on material particulars such as: (i) the possession of the land in dispute; (ii) the genesis of the incident; and (iii) the nature of the firearm used and the place from where it was used to inflict firearm injury on the deceased. In addition to that they have not submitted explanation for hard and blunt object injuries found on the body of the deceased and the injuries found on the body of the accused.
51. At this juncture this Hon'ble Court is reminded of the golden rule of appreciation of evidence propounded by the Hon'ble Apex Court in case of Vadivelu Thevar v. State of Madras AIR 1957 SC 614, in which while classifying the witnesses in three categories, namely (i) wholly reliable, (ii) wholly unreliable, (iii) neither wholly reliable nor wholly unreliable, the Hon'ble Court observed that in the 3rd category of cases the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. In the present case, no such corroboration to the testimony of P.W.1 (Riyazuddin) and P.W.2 (Ashfaq Ahmad) is available from any other independent reliable source or circumstances. It may be noticed that the contents of the first information report which has been used by the trial court for corroboration of the testimony of the witnesses was improper because the informant had not turned up in the witness box and therefore its content could not have been read as substantive evidence, particularly, when it was not demonstrated that it could be admissible in evidence as his dying declaration.
52. In the case of Gautam Lal vs. State of U.P. (1981) CrlJ 1187, the Hon'ble Court observed as under:-
"11. It is now a well settled principle of criminal law that an accused can be convicted only when on the evidence produced the court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be based on mere possibility. Nor is it permissible for the court to speculate as to what had really happened. If both the parties come to the court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the court to arrive at any definite conclusion on the unreliable evidence produced either for or against either of the parties. In such a case the court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be impossible task. That is particularly so when the evidence of both the parties is unreliable and cannot be accepted even in part with safety. In such a case it is not open to the court to make out a third case which is different from the case set up by both the parties. In a situation like this the court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other."
53. Although generally the injured witnesses do not leave the real culprits and falsely implicate innocent persons but at the same time, there may be cases where the injured persons have themselves committed wrong and out of fear of disclosure about their own wrong doing, they twist the real facts to demonstrate their innocence by introducing incorrect version of the incident. Moreover, they may implicate innocent persons too, particularly, where there is old standing enmity. The court is conscious of the fact that the present case is a case of day light incident and there are witnesses who have suffered injuries and therefore their presence at the place of occurrence cannot be doubted in a slipshod manner. However, in the case of Balak Ram v. State of U.P. (1975) 3 SCC 219, the Apex Court observed that the presence of injuries on the person does not give any guarantee about his truthfulness nor it could be an insurance against the natural human failing of implicating innocent persons along with the guilty. Thus, presence of an injured witness at the place of occurrence may be certified by his injuries but whether the said witness is truthful and his testimony is reliable, would have to be tested on the weight of other evidences/circumstances brought on record.
54. In the present case, the prosecution witnesses have admitted the rivalry and litigation in between the two families. P.W.1 has also admitted in his cross examination that on earlier occasion two criminal complaints were filed by his father Jamaluddin (first informant) against Sagir Ahmad and other accused persons, which were dismissed later. In these circumstances, keeping in mind the various aspects noticed above, which discloses that the prosecution has not been able to satisfactorily establish that the incident had occurred in the manner alleged, as also, the possibility of false implication of some of the innocent persons on account of exaggeration, the Court being not able to separate the grain from the chaff, would have to accord the benefit of doubt to all the surviving appellants, particularly, when we notice that as per the prosecution evidence a solitary gun shot was fired at the deceased which was attributed to Sagir Ahmed, who expired during trial, and three persons, namely, Aftab Ahmed (surviving appellant no1), Chottey Mian @ Afsar Ahmed (who died during appeal) and Laeek Ahmed (surviving appellant no.2), are stated to have fired at Ashfaq Ahmed (PW2) as against which he had suffered only two gun shot injuries and in his previous statement, which was recorded as dying declaration, PW2 attributed the firearm injury sustained by him to Afzal Ahmed. Rest of the injuries are only of hard and blunt object which may be attributable to the other two surviving appellants along with two others who have expired, but in what manner the incident unfolded, whether lathi blows were exchanged in protection of possession and, thereafter, assailants, with firearms, joined the fray, being not clear from the various shortcomings noticed by us in the prosecution case, all the surviving appellants would be entitled to the benefit of doubt.
55. We may put on record that no doubt, the cross case initiated by the accused persons resulted in acquittal but it will not make any difference as in a criminal case the burden of proof rests upon the prosecution. If the accused establishes that the accused also sustained injuries, in that very incident and the same has not been properly explained by the prosecution, the court may draw an inference that the prosecution witnesses are not coming with clean hands and are lying on a most important aspect of the case adversely affecting their reliability. This court is conscious of the legal position that in each and every case it is not obligatory upon the prosecution to explain even the superficial and simple injuries received by accused persons. But each case turns on its own facts. In the present case, this Court has found that the claim of the informant side that they were in possession of the disputed land appeared doubtful, as it was admitted by prosecution witness that the accused had got a Chak carved out in their favour. Thus, the possibility of the accused forming an unlawful assembly to plough their own field becomes doubtful. Secondly, injuries from hard and blunt object found on the body of the deceased has no explanation. Thirdly, the gun shot injury found on the body of the deceased could not have been from a gun, as alleged, but might have been from country-made pistol. Fourthly, the deceased had suffered hard and blunt object injuries of which there was no explanation in the prosecution evidence. All this throws serious doubt on the truthfulness of the prosecution case with regard to the manner in which the incident occurred and, consequently, it would have material bearing on the liability of each accused, particularly, by invoking the law relating to an unlawful assembly. Further the deviation of the prosecution case, from the first information report and also from the statement recorded during investigation, particularly, the previous statement of P.W.2 recorded by Executive Magistrate, gives rise to a reasonable doubt about the genuineness of prosecution version and throws possibility that initially the accused may have exchanged lathi blows with the informant party to defend possession and, later assailants with firearm joined them to overpower the other side. But as all these aspects could only be speculated upon, the benefit of doubt would have to go to the surviving accused-appellants.
56. In the result, the appeal of surviving appellants, namely, appellant no.1 (Aftab Ahmad); appellant no.2 (Laiq Ahmad); appellant no. 4 (Sukkha); and appellant no. 7 (Chhutwa @ Shakeel Ahmad) succeeds and is allowed. The impugned judgment and order of their conviction and sentence is set aside. The appellant no.1 (Aftab Ahmad); appellant no.2 (Laiq Ahmad); appellant no. 4 (Sukkha); and appellant no. 7 (Chhutwa @ Shakeel Ahmad) are acquitted of all the charges. If they are on bail, they need not surrender.
57. Let a copy of this order along with record be sent to the court below for information and compliance.
(Manju Rani Chauhan, J.) (Manoj Misra, J.)
Order Date :- 10.01.2020
Sushil/-