Allahabad High Court
Chheemo And 5 Others vs State Of U.P. on 13 December, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement reserved on 26.11.2018 Judgment delivered on 13.12.2018 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1383 of 2014 Appellant :- Chheemo And 5 Others Respondent :- State Of U.P. Counsel for Appellant :- N.I. Jafri,Chandra Bhan Dubey,Dileep Kumar,F.I. Jafri,Jamaluddin Mohd. Nasir,Lav Srivastava,Rajrshi Gupta,Surya Bhan Dubey Counsel for Respondent :- Govt. Advocate,Kamlesh Kumar,Prashant Vyas Connected with Case :- CRIMINAL APPEAL No. - 2066 of 2014 Appellant :- Fareed Respondent :- State Of U.P. Counsel for Appellant :- M.J. Akhtar,Lav Srivastava,V.M. Zaidi Counsel for Respondent :- Govt. Advocate,Kamlesh Kumar,Prashant Vyas Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-J, J.)
1. Heard Sri Rajrshi Gupta for appellant no.5 Bobby, Sri Ajay Kumar Pandey for rest of the appellants in Crl. Appeal No.1383 of 2014) (in connected appeal) and Sri Arun Kumar Shukla, learned counsel appearing on behalf of the appellants, Sri Kaustubh Srivastava, learned counsel for the first informant and Sri Jai Narain, learned A.G.A. for the State respectively in the aforesaid two appeals.
2. This criminal appeal no. 1383 of 2014 has been preferred against the judgement and order dated 25.3.2014 passed in S.T. No. 278 of 2006 (State vs. Chheemo and others) and S.T. No.253 of 2007 (State vs. Wasim) arising out case crime no. 372 of 2005, P.S. Mawana, District Meerut passed by Additional District and Sessions Judge, Court No. 3, Meerut whereby thee appellants have been convicted and sentenced under section 147 IPC for one year rigorous imprisonment, fine of Rs. One thousand and in default of payment of fine, six months additional imprisonment each, under section 148 IPC two years rigorous imprisonment, fine of Rs. Two thousand and in default of payment of fine, two years additional imprisonment each, under section 307/149 IPC life imprisonment, fine of Rs.10,000/- and in default of payment of fine, three years additional imprisonment each, under section 504 IPC one year rigorous imprisonment, fine of Rs. One thousand and in default of payment of fine, one year additional imprisonment each, under section 506 IPC three years rigorous imprisonment, fine of Rs. two thousand and in default of payment of fine, one year additional imprisonment each.
3. Other criminal appeal no. 2066 of 2014 (Fareed vs. State of U.P.) has been preferred by the co-accused Fareed against the same judgment and order arising out the same case crime number whereby he has also been held guilty and has been awarded the same punishment under the aforementioned sections.
4. Since both the appeals are arising out of a common judgment, they are being taken up together and are being decided by the present common judgment.
5. In brief, the prosecution case is that on 13.10.2005 at about 7.00 A.M. all the appellants came to the house of the informant armed with gun, rifle and country made pistol and started abusing and saying that they were not to be spared alive, at that time Waris, Shadab, Rais Ahmad, Samad Khan, Smt. Munni, Mohid, Khursheed and Shabbo etc. were also present there. The appellants started firing upon the complainant side by which Waris (PW-2), Shadab (PW-3), Rais Ahmad, Samad Khan, Smt. Munni, Mohid, Khurhseed, Shabbo became seriously injured. Waris was taken to Meerut from Mawan in serious condition and thereafter he was referred to Delhi and Shadab was admitted in P.N. Sharma Hospital. Other injured were also being treated in hospital. These appellants had also caused injuries, in the previous evening of the occurrence, to the father of Waris (Munna) and Sakib, regarding which report was lodged in the night itself. There was enmity going on between two sides from before because of which the present fatal assault had been made.
6. A written report (Exhibit Ka-1) with the above allegation was addressed to the SHO, P.S. Mawana by the informant Nadeem (PW-1) whereon crime no.372 of 2005 under section 307, 147, 148, 149, 504 IPC was registered on 13.10.2005 at 1730 hrs against all the appellants by constable Sampat Singh (PW-14) who prepared chick FIR (Exhibit Ka-28) and made entry of this case at report no. 17 time 0730 hrs. in the G.D. (Exhibit Ka-20). The investigation was assigned to S.I. Shyampal Singh (PW-13) who started investigation on 13.10.2005 who, after having taken police personnel along with him, went to PHC, Mawana and found out about the injured persons and came to know that injured Shadab and Waris had been referred to Meerut. Thereafter, he went to village Sathala where he recorded statement of informant Nadeem, injured Rais Ahmad @ Chhavi, Mohid, Khursheed, Smt. Munni and Shabbo and thereafter he came to know that injured Waris and Shadab were sent to Delhi and P.N. Sharma Hospital, Meerut respectively. Thereafter, at the instance of informant he prepared site plan (Exhibit Ka-26). When he tried to find out about the accused-appellants, they were found absconding from their respective houses. Four 12 bore empty cartridges and one bullet of 315 bore were also found on the spot which were sealed in the presence of witnesses Salim and Shahbej. The recovery memo (Exhibit Ka-2) was prepared by him. Again on 15.10.2005 and 22.10.2009, he made search of the accused-appellants but they could not be found and thereafter on 26.10.2005 he recorded statements of witnesses namely Shadab, Muche Khan and Nafees. On 27.10.2005 he went to Delhi in Sabir Nursing Home where he recorded statement of the injured Waris. On 21.11.2005 he recorded the statement of Samad Khan, Shahbej and Samlik. He further tried to search the accused-appellants but their ladies showed him stay order of High Court. At the police station, X-Ray report of injured Smt. Munni, Khursheed and Rais Ahmad were received by him which were entered in the case diary and it was found that the injured Rais Ahmad sustained fracture and therefore, the offence under section 325 IPC was added. On 25.11.2005 the statements of Haroon Khan and Chand Khan were recorded at police station and thereafter he went to village Sathala where he recorded the statements of accused appellants Chheemo, Nadeem, Waseem, Nawab, Salim and Bobby, whose arrest was stayed by High Court and they could not be arrested and on the same day he filed charge-sheet (Exhibit Ka-26) against them. On 4.12.2005 he had received injury reports of injured Shadab and Waris. Four empty cartridges of 12 bore and one bullet of 315 bore were material exhibits 1 to 4 and material exhibit 5 respectively. PW-13 had also investigated cross case being case crime no. 372-A of 2009 under section 147, 452, 324, 504, 506 IPC and he had submitted charge sheet against some of the accused persons who were found involved in commission of offence.
7. After submission of charge-sheet against accused appellants Cheemo, Nadeem, Wasim, Nawab, Salim and Bobby under sections 147, 148, 149, 307, 325, 504, 506 IPC, the case was committed to the court of Sessions on 21/02/2007, thereafter co-accused appellant Farid was summoned to face trial under the aforesaid sections on an application under sections 319 Cr. P.C. and thereafter charges were framed under sections 147, 148, 307/149, 325/149, 504, 506 IPC against accused appellants on 19/01/2008 and 09/05/2007, to which they pleaded not guilty and claimed to be tried.
8. The prosecution has examined following witnesses to prove its case: informant Nadeem Khan as PW 1, Waris as PW 2, Shadab as PW 3, Shahbej as PW 4, Ramvir Singh as PW 5, Dr. Suresh Yadav as PW 6, Dr. Gyanendra Kumar as PW 7, Jagat Singh as PW 8, Dr. Anil Khanna as PW 9, Doctor Ram Dinkar Jha as PW 10, Dr. Dipak Gupta as PW 11, Dr. Neeraj Goel as PW 12, Sub Inspector Shyam Pal Singh as PW 13, and constable Som Pal Singh as PW 14.
9. From the side of prosecution as documentary evidence following documents have been filed: Exhibit Ka-1 written report, Exhibit Ka 2 recovery memo pertaining to 4 empty cartridges of 12 bore and a bullet of 315 bore, Exhibit Ka-3 injury memo of Shadab, Exhibit Ka 4 radiology report of Munni, Exhibit Ka-5 radiology report of Khurshid, Exhibit Ka-6, radiology report of Rais, Exhibit Ka-7, Exhibit Ka-8 injury report of Shadab, Exhibit Ka-9 injury report of Khurshid, Exhibit Ka-10 injury report of Sabbo, Exhibit Ka-11 injury memo of Mohid Khan, Exhibit Ka-12 injury memo of Munni, Exhibit Ka-13 injury memo of Rais, Exhibit Ka-14 the paper relating to admission of Waris Khan in All India Institute of Medical Sciences sl. no. 225-346, Exhibit Ka-15 Khaka Lash relating to Waris Khan, Exhibit Ka 16 X-Report of Waris Khan, Exhibit Ka-17 Parcha relating of neurosurgery clinic relating to Waris Khan, Exhibit Ka 19 Parcha neuroscience Centre relating to Waris Khan, Exhibit Ka 20 letter dispatched to Waris Khan by all India Inst Of Medical Sciences, Delhi, Exhibit Ka 21 permission letter relating to Rais Khan, Exhibit Ka 22/1 to 22/11 the case sheet issued by Chaurasiya Nursing Home pertaining to Rais, Exhibit Ka 23 injury memo Shadab, Exhibit Ka 24 supplementary injury memo Shadab, Exhibit Ka 25/1 to 25/8 BHT related to Shadab, Exhibit Ka 25/92 to Ka 25/22 pathology report of Shadab, Exhibit Ka 26 site plan, Exhibit Ka 27 charge- sheet, Exhibit Ka 28 chick FIR, Exhibit Ka 29 carbon copy of GD of initiation of case, material Exhibit 1 to 4 four empty cartridges, material Exhibit 5 one 315 bore bullet.
10. On the basis of above evidence, the learned trial court has convicted the accused appellants under the afore-mentioned sections and has awarded the punishment as narrated above.
11. The learned counsel for the appellants barring appellant no. 5 then has simply argued for reduction in sentence as according to him the life imprisonment awarded under sections 307 read with sections 149 IPC is on the higher side. It has been argued by learned counsel for the appellant no. 5 Bobby that the time of incident is mentioned in the FIR to be 7.00 A.M. while the FIR has been lodged at 7.30 A.M. while Investigating Officer, PW-13 has stated that the FIR was sent to the Magistrate five days after the said occurrence which is considerable delay in violation of the mandatory provision. It is further argued that the injured who had visited Police Station and was given 'Majoobi Chitti', the same does not contain the crime number. It was further pointed out that the injured was admitted in P.N. Sharma Hospital at 10.45 A.M., all these facts indicate that the FIR was anti timed. Further, he argued that genesis of the case is under cloud in this case and there could be exaggeration in the statement made by injured witnesses. Moreover, no recovery of any fire arm weapon by which assault is said to have been made, has been recovered from any person. Further, it is argued that the statements of the injured witnesses have been recorded by the Investigating Officer one month after incident and in all their statements they have made general statement that all the accused were armed with gun and country made pistol, rifle etc and did not specify as to which accused was carrying what weapon. Pointing out these facts, it was argued that the case would not travel beyond section 308 IPC. Further, it is argued that PW-1 at page 91 of the paper book has stated in the last paragraph that Bhuri was also beaten at the same time when the present incident is alleged to have taken place, which would indicate that the FIR was anti timed. Further, it is argued that the injured Shadab had received injuries caused by blast of barrel of country made pistol which he had fired in his defence, as has been the case taken up by the accused side in defence, which has been erroneously disbelieved by the trial court. Further, it is argued that the place of incident has been shifted because in FIR it is stated to be house of PW-1, while in the statement he has stated that incident happened on Chabutra. It makes clear that the accused-appellant Bobby has been falsely implicated. No other argument was made.
12. It has been argued by the learned counsel for the informant that PW-1 Nadeem Khan an eye witness supported the prosecution version and stated that the accused Nadeem, Cheemo were armed with gun, accused Wasim was armed with rifle and other accused persons were armed with country made pistols. The injured witness Waris has also supported the entire prosecution version and his statement must be taken to be trustworthy as he has sustained fire arm injury on head which was ultimately treated at All India Institute of Medical Sciences (AIIMS) and his left side body stands paralyzed. It is further argued that second injured witness Shadab has also supported the entire prosecution version and he has also sustained fire arm injuries on chest and was given treatment in P.L. Sharma Hospital and later was admitted for nine days at Chaurasiya Nursing Home. Further, it is argued that the recovery of empty cartridges and bullet from the place of the incident has been proved by PW-4, Shahbej. The Medico Legal register of P.L. Saharma Hospital, Meerut has been proved by PW-5 Ram Veer Singh; Emergency Medical Officer, P.L. Sharma Hospital, Meerut Dr. Suresh Yadav (PW-6) has proved injuries of Shadab; Senior Consultant/Radiologist of P.L. Sharma, Meerut Dr. Jogendra Kumar (PW-7) has proved the injures/X-ray report of injured Munni, Khursheed, Rais and Shadab; Office Superintendent, Community Health Centre, Mawana, Jagat Singh (PW-8) has proved Meddico Legal Report of injured Shadab prepared by Dr. Anil Khanna and also reference slip by which Shadab was referred to PN. Sharma Hospital. The Medical Officer, Community Health Centre, Mawana, Dr. Anil Khanna (PW-9) has proved medico legal reprt of injured Khurhseed, Shabbo, Mohid, Smt. Munni, Raies and Shadab; Senior Bone Specialist, AIIMS, Dr. Dinkar Jha (PW-10) has proved medico legal report of injured Waris; Assistant Professor, Neuro Surgery, AIIMS, Dr. Dipak Gupta (PW-11) had conducted operation of injured Waris and had found frontal bone fractured and it was also found that his eye sight of right had diminished eye and treatment of injured was still going on; the Visiting surgeon of Chaurasiya Nursing Home, Meerut, Dr.Niraj Goel (PW-12) had operated injuries of injured Rais and Shadab and had proved fire arm injury on the chest of injured Shadab. It is further argued that in cross Case being case crime No. 372A of 2005 under sections 147, 452, 324, 504, 506 IPC which was lodged by informant Amir Ahmad against accused Rais @ Changi, Chunnu, Asif, Salim, Shavez, Samad Khan, Shadaba and Waris resulted in acquittal vide judgment dated 25.3.2014 by the Additional Session Judge, Court No. 3, Meerut in S.T. No. 133 of 2012. Further, it is argued that a day before the present incident an FIR was lodged from the side of the first informant of the present case against Cheemo, Nadeem, Bobby and three others, which was registered as Case Crime No.371 of 2005 under sections 147, 148, 149, 323, 504, 506 IPC, Police Stsation Mawana, District Meerut in which the accused persons including the present appellant nos. 1, 2 and 5 namely Cheemo, Nadeem, Bobby have been convicted by the learned trial court vide judgment and order dated 8.9.2015 and after having pointed out this evidence on record, it has been vehemently argued that the judgment passed by the trial court must be upheld and appeal should be dismissed.
13. Since it is bounden duty of this court to also ensure that there was no infirmity in holding the accused appellants guilty by the learned trial court and if we come to the conclusion that the appellants have been held guilty rightly then only it would be considered whether the prayer made by the learned counsel for the appellants needs to be accepted or not, of reducing the punishment.
14. We have to see as to what is the evidence on record on the basis of which the accused appellants have been held guilty.
15. It may be mentioned here that informant Nadeem Khan's statement has been recorded twice in this case, once initially when trial had started and thereafter when the co-accused appellant Farid was made accused under sections 319 Cr. P.C., his statement was again recorded.
16. In the 1st statement dated 10/1/2007 PW 1, Nadeem Khan has stated that the incident happened on 13/10/2005 at about 7 a.m. and at that time his brother Waris, Shadab, father, mother, uncle, Samad, Shabbu Bhai, Rais Bhai, brother-in-law of Khurshid Bhai were all present in the house, right then appellants Cheemo, Nadeem, Wasim, Bobby, Nawab, Salim, Farid came in the house of informant armed with weapons; Cheemo had gun, Wasim had a rifle and rest were armed with country made pistols and all of them started abusing stating that they would not be spared alive and together all these accused started raining bullets upon them and in this incident Waris, Shadab, Rais, Smt. Munni, Samad Khan, Mohid Khan, Khurshid and Shabbo received fire arm injuries and thereafter these accused fled from there, the entire persons living in the vicinity went inside their houses. Thereafter they all went to Mawana by car and the informant got a written report typed which is Exhibit Ka-1 and lodged the said report at police station. Subsequently he came to know that Waris was taken to Meerut for treatment. This incident had happened due to a dispute with regard to eucalyptus trees between them and the said dispute had arisen twice earlier also. The same statement was repeated by this witness again when it was recorded after making Farid also as a co-accused except that he added that he came out of house and saw the accused appellants making fire. Waris, Shadab, Rais, Smt. Munni, Samad Khan, Mohid Khan and Shabbo received serious injuries and the condition of Waris was very bad, all these Injured persons were taken to police station in his uncle's car where F.I.R. was lodged. The hospital was adjoining to the police station where the injured persons were taken for treatment and from there Waris and Shadab were sent to Pyare Lal Sharma hospital in Meerut for treatment. Further he stated that one day prior to this occurrence Cheemo, Bobby, Farid, Wasim, Nadeem had beaten by Lathi and Dandas, Munne Khan and Shakeb because there was earlier enmity going on between both the sides pertaining to eucalyptus trees. The present incident also happened because of this enmity. In cross-examination this witness has stated that the report was lodged at PS Mawana about 20 minutes after 7.00 AM and at the time when this report was registered Injured Waris, Shadab, Rais, Samad Khan, Smt. Munni, Mohid Khan, Khurshid, Shabbo where not present with him at PS concerned. He does not recollect as to whether the injured persons had left for hospital before lodging of report. He had not seen as to whether before lodging the report, the injuries of the injured persons were noted at the police station or not. He was present when these Injured were being taken to hospital. He was flabbergasted having seen Waris and Shadab in pool of blood because of which he had stated that he could not tell whether he had seen the injuries of the injured persons at the PS or not. The injured persons stayed at P.S. only for about five minutes and after they had gone, he had immediately lodged the report and it was wrong to say that he had not gone to the police station for lodging F.I.R.. Further stated that it was rightly mentioned in his report that Waris was referred from Mawana to Meerut and from Meerut to Delhi in serious condition and that Shadab was admitted in PL Sharma hospital and that it was wrong to say that the above fact was mentioned wrong by him in FIR. He has also denied that he mentioned it wrong in FIR that other injured persons were also being treated in hospital. A typist was available at 7.00 AM at P.S. Mawana on the day of incident but he could not tell his name nor could he tell the timings when he dictated his report to him and denied the suggestion that there was no private typist available there and that F.I.R. was anti-timed. He also has stated, at about 7.00 AM on 13/10/2005 accused Cheemo, Wasim, Nadeem had beaten Bhuri by lathis in which Bhuri had received light injuries, who was one of his relatives being Bhatija and when he tried to save him even he was beaten by these three accused by lathis but he had not got his head injuries examined as he had internal injuries but he had not mentioned about this incident in his written report but could not tell its reason why he did not mention. He admitted that he was examined in court twice for recording his examination in chief, once on 10/10/2007 and the other time on 20/02/2008 and in both the statements he had told that the occurrence had happened on 13/10/2005 at 7.00 AM but had not mentioned that the above-mentioned three accused had beaten Bhuri and when he went to save him he was also beaten by them by lathis. He denied that on 13/10/2005 at 7.00 AM he was not present on the spot because he was with his brother in Delhi and had not seen the incident. He also has stated that on 10/1/2007 in his statement he had not stated about his younger brother Sartaj to be at home, but in his statement recorded on 20/02/2008, in examination in chief, he has stated that sartaj was at his house and explained that because of not remembering, he could not tell about his presence in his earlier examination-in-chief and denied that he had made a false witness of the incident on the basis of legal advice. He again has stated that in his statement recorded on 10/01/2007, in examination-in-chief, he had stated that uncle Samad, Shabbo Bhai, Rais Bhai, brother-in-law of Khurshid Bhai were present in house but in his statement dated 20/02/2008 he did not disclose their names only because he could not remember their names then and denied that this happened because of legal advice. He further stated that Bhuri is not a witness in this case nor had he lodged any case in respect of accused having beaten Bhuri and him. He again reiterated that all the accused had fired and caused injuries to the injured persons and even denied it to be wrong that Mohid Khan had not received any firearm injury and Samad Khan, did not receive any kind of injuries.
17. We do not find any inconsistency in the statement of this witness as regards lodging the written report at PS concerned because the same has been lodged promptly, occurrence being of 7.00 AM while the report has been got registered at 7:30 AM, the distance of police station from the place of incident being just 9 kilometres. A lot of cross-examination has been made on the point of earlier occurrence in which three accused are alleged to have beaten Bhuri and when PW 1 went to save him even he received injuries but he did not mention about this fact in his present FIR, we do not find that because of this, there can be any infirmity in the present FIR. There is slight difference in the version of his statement which was recorded second time due to an addition of an accused under sections 319 Cr. P.C., but whatever has been stated in the subsequent statement is nothing but a reiteration of the earlier statement plus some more facts have been added which were relevant, therefore there seems to be no improvement made in his statement which may be treated to be detrimental to the prosecution case. The PW-1 along with injured persons had gone to the police station but soon after, the injured had left the place for hospital for treatment, whereafter the report is alleged to have been written, therefore we do not find any lacuna in his statement and the same seems to be trustworthy.
18. Waris, PW-2 who is injured witness has stated that he recognises all the seven accused who were present in court and named them correctly and stated that Cheemo, Nadeem and Wasim were real brothers and Bobby was son of their real uncle and Salim was son of their real Phuphi. Date and time of the occurrence have been narrated by him to be the same as mentioned in FIR and stated that he was sitting at the Baithak of his house and then all the appellants came there armed with weapons (gun, rifle and country made pistols) and started abusing Shadab and when PW-2 stated what was it, at this, all of them started firing which hit him as well as the other injured persons namely, Rais, Shabbo, Khurshid, Mohid Khan, Munni and Sammo alias Samad. Having received injuries he fell down and became unconscious as the shot hit his head on the right side and because of that his left leg and right-hand also became non-functional. The left-hand became totally paralysed; when he regained consciousness he found himself in hospital in Delhi where his statement was recorded by police; because of this incident vision of his right eye had also diminished and he was still not well. He stated that this incident happened due to a quarrel which had taken place between the two sides regarding cutting eucalyptus trees and for this, Munna and Shakeb had had a fight earlier, Munna was his father. In cross-examination this witness has stated that he remained admitted in Delhi Hospital for about 28-29 days in All India Institute of Medical Sciences and his statement had been recorded there only but he could not tell as to when his statement was recorded by the investigating officer nor does he recollect as to whether he gave any statement to the investigating officer stating that the vision of left eye had diminished and that he was not well till now. He denied suggestion that he was giving statement on legal advice for the first time. He denied that his left leg and hand and left eye were absolutely perfect and that he was making wrong statement in court regarding these limbs being badly affected. Further he stated that he had become unconscious on the place of occurrence and could regain his consciousness about 11-12 days after the incident when he found himself in a hospital in Delhi and he could not tell as to who had taken him there and he was in which hospital. He had not sought information from the person whom he found in hospital as to whether the report was lodged about the incident or not. He had not disclosed names of assailants when he regained consciousness to the person who was present in hospital. The person who was available in hospital, had apprised him that report had been lodged about this incident by Nadeem but he could not tell as to when he met Nadeem after regaining consciousness nor does he recollect as to whether Nadeem was near him when the investigating officer was recording his statement. He had never taken the investigating officer to the place of occurrence nor the investigating officer had taken him there. All the assailants/appellants were armed and had made fire but he could not tell as to whose shot had hit him nor could he distinguish as to which accused was having rifle and who was having country made pistol or gun and at what distance from each other they were standing but they were standing in a line. The assailants had made fire at him from 4-5 steps. He further stated that his house was situated in front of Shadab's house and in front of their houses was the place of occurrence. We find that the place of occurrence is being reported to be same which has been shown by the investigating officer in site plan (Exhibit Ka 26). In this site plan the accused are shown by an arrow coming from southern direction towards North; in front of Baithak of Waris by "BX" is shown the place where fire was made on Waris, Shadab and others from the place shown by "XA". By "XXXX" is shown the place where 4 empty cartridges of 12 bore and one bullet of 315 bore were found. This witness has further stated that he could not tell the width of the road situated between his house and the house of Shadab and he denied the suggestion that he was deliberately not telling about it and that it was wrong to say that no such firing was made by all the appellants. He further stated that no cross case of this incident was going on against him and showed his ignorance that cross case crime no. 372 A/2500 sections 324, 504 and 506 IPC, PS Mawana was pending in the court of ACJM, Mawana in which he was named accused or not or that whether he was on bail in that case or not and denied that he was making wrong statement in this regard deliberately. He further denied that the said case was in respect of Naseem alias Bhondu and Sharif having assaulted by lathis and "tabal" with an intention to kill and also showed ignorance that in the said case Rais @ Jhunga, Cheemo alias Bhura, Asif, Salim, Shahvez son of Samad Khan and Samad Khan son of Juggu, Shadab son of Jamir Ahmad, Waris son Rasid Ahmad had been nominated. He denied that on 13/10/2005 at 7.00 AM the aforesaid persons entered the house of Amir Ahmad son of Asifuddin in village Sathala and assaulted with an intention to kill by Lathi, gun and country made pistols, Naseem alias Bhondu and Sharif and to escape being punished in that case this false cross case, has been initiated against the accused appellants. He admitted that one day prior to the present occurrence a quarrel had happened between the accused persons and Munna and Shahvez pertaining to cutting of eucalyptus trees and in that case he was the informant and a witness of the case but it was wrong to say that because of being relative of Munna and Shahvez he was giving false statement in the present case. In the present case Samad had also received fire arm injuries but he could not tell whether he had been medically examined and also admitted that apart from the relatives, there was no other witness in this case. Shabbo was also caused injuries by the assailants and he had received fire arm injuries. He also denied to have any knowledge that on 11/08/2005 Shawahat Khan son of Iqbal resident of Sathala had got the case registered being crime no. 277 of 2005 under sections 147, 148, 149, 307, 504, 323 IPC at PS Mawana naming therein Salim, Asif, Sakev, Sajev sons of Samad, Aftab son of Jamil Ahmad as accused who belonged to his family and because of enmity of this case he along with his other companions had attacked upon the house of Asifuddin on 13/10/2005 at 7.00 AM. He also denied that Rais and others had assaulted Amir Ahmad and in this attack the barrel of the country made pistol of Rais exploded because of which pallets hit his head and in this attack PW 2 was also involved.
19. This witness himself is an injured witness who remained hospitalised in all India Institute of Medical Sciences for a long time due to having received serious injuries in this occurrence. Although he could not give satisfactory replies as to who had got him admitted and also as to when he met Nadeem after having regained consciousness etc. and also denied about the existence of a cross case, but it all appears to be there because of anxiety to see that the accused were punished in this case. Despite there being little exaggeration in his statement and several concealments as regards facts, his statement cannot be disbelieved with respect to the present occurrence having taken place and his having received injuries in the present incident which are alleged to have been caused by appellants. Therefore we find the statement of this witness to be trustworthy as regards proving the occurrence.
20. Shadab, PW 3 who is also an injured witness has corroborated the version of the prosecution exactly as mentioned in the FIR in respect of all the accused having made indiscriminate fires upon the complainant side, in which he received a gunshot wound on his chest, whereafter he was taken to police station and from there he was taken to Mawana Government hospital by police and all the injured persons were sent to Pyare Lal hospital except Waris who was straightaway sent to Delhi in All India Institute of Medical Sciences. He further stated that after being admitted in Pyare Lal hospital, he also remained admitted in Chaurasia nursing home for about 9 days where he was operated also. He also has stated that one day prior to this occurrence his ''Taya', Munne Khan and Shakeb were beaten by these accused persons only but clarified that out of these accused only three had beaten them and that the incident of making fire was seen by Munne Khan and Rais who had come on the spot. In cross-examination he has stated that the occurrence had taken place in village Sathala where he was sitting outside at Baithak which was on the main road. He had stated about this to investigating officer, the occurrence was caused by accused appellants from the road at a distance of about 4-5 steps. The main road is about 25-30 feet wide and on this road, 4-5 steps away from Chabutara the accused were standing. All the accused had made fire simultaneously and all the injured persons had received injuries. He denied that the said occurrence was not that of his Baithak, rather the same had happened in front of the house of Waris and has denied that the said distance was stated by him to be 15-20 steps. He further stated that it was wrong to say that the incident had happened not in front of the Baithak of Waris rather had taken place inside the house of Wasim where he caused injuries to himself. He further stated that he could not tell as to who had fired by gun, country made pistol and rifle and which injured received injury caused by which weapon and denied that he was not in a position to tell about it because he had not seen the incident. He had not told the doctor at PS Mawana as to by which weapon the accused had caused injuries, but it was denied by him that he did not tell him about this because the said injury had been caused to him as a result of the explosion of the barrel of gun of Rais. He further stated that his house is separate from the house of Waris and between their houses there is a small lane and outside the house is a Baithak. Further he stated that he knew Bhuri. On the date of incident at about 7.00 AM Wasim, Nadeem, Cheemo did not beat Bhuri in respect of cutting trees and it was also wrong to say that Samad Khan and Aftab had objected in respect of Marpit with Bhuri and that he was also beaten by these three accused. He admitted that in cross case along with him Rais, Asif, Waris, Shadab only are accused and Chunnu, Salim, Satir, Samad Khan were not accused. The complainant of this cross case is Amir Ahmad. It was wrong to say that in the cross cases injured were Sharif Ahmad Khan and Wasim Khan. The witnesses of this cross case are Rabiul, Asif and Anis. He denied that on 13/10/2005 at 7.00 AM he came with Lathi along with Samad Khan and Waris armed with lathis, Salim and Satir armed with tabal and entered the house of Wasim and caused injuries by their respective weapons to Sharif Ahmad and Naseem Khan by their respective weapons. He had also denied that Rais, Chunnu and Asif made firing by their weapons which instead of hitting Sharif and Naseem, hit walls and doors of his house. He further denied that during this, the barrel of the country made pistol of Rais exploded, which resulted in pallets hitting him and Waris. Further denied that to save himself from cross case this false case has been filed.
21. We find that this witness has also given trustworthy statement about the place of occurrence as well as the manner in which incident has happened except there being few minor contradictions and that too not in material aspect. He is an injured witness and therefore his testimony also carries weight which cannot be discarded and we find that he has also corroborated the prosecution's version as given in FIR and also supported by PW 1 and PW 2.
22. Shahbez, PW-4 has stated that in his presence the Investigating Officer had recovered empty cartridges of 12 bore and a bullet of 315 bore on 13/10/2000 and had prepared its memo (Exhibit Ka-2), which was signed by him. The empty cartridges are material Exhibits 1 to 4 and bullet is material Exhibit-6. In cross-examination this witness has stated that he has no knowledge whether he is an accused in cross case crime no. 372 A of 2005 under sections 147, 452, 323, 504 and 506 IPC PS Mawana or not and denied that on 13/10/2005 around 7.00 AM he and Salim armed with tabal, Asif armed with gun and Chunnu and Rais armed with country made pistol, Samad Khan, Waris and Shadab armed with lathis entered the house of the accused of the present case and made murderous assault, in which Sharif Ahmad and Naseem Khan received injuries of tabal and lathis. and he also denied to be on bail in the said cross case. His signature on the recovery memo of cartridges and bullet was obtained by the Investigating Officer about 1 ¼ months after the occurrence.
23. It is evident from the statement of this witness that the recovery of the empty cartridges and the bullet was made in front of him by the investigating officer, although he has denied to be an accused in crime number 372A/05 which appears to be deliberate concealment, however we find that recovery of the said cartridges and bullet may not be the disbelieved and concealment on his part regarding cross case may have been made under belief that his statement otherwise would be taken to be biased.
24. Dr. Suresh Yadav (PW-6) had examined the injured Shadab and found one gun shot wound of entry 1 cm. x 1 cm. x depth not probed, on front of right side of chest, 4.5 cm. medial to right nipple at 1 O' Clock position, Margin inverted, which was kept under observation, X-Ray was advised. The patient was admitted in hospital in delicate condition. The said injury was possible to have been caused by fire arm on 13.10.2005 at about 7.00 A.M. according to him.
25. Dr. Ganendra Kumar Vashisht (PW-7) had prepared X Ray report on 13.10.2005 at 8.20 A.M. on the basis of X-Ray plates of injured Smt. Munni wife of Mohid, Khurhseed son of Saleem, Rais son of Amir Ahmad on reference having been received from P.L. Sharma Hospital which were Exhibits Ka-4, Ka-5 and Ka-6 respectively. He found 5th metacarpal bone of left hand of Rais fractured and had also filed X-Ray plate which is material Exhibit-1. On the same date he also performed X-Ray of injured Shadab son of Jamir Ahmad and found that one radiopaque shadow existed in his X-Ray of his chest but no fracture was found and the said shadow of metal could have been an injury caused by fire arm or by a pallet, his report is Exhibit Ka-7 and his X-Ray Plate is material Exhibits 2 and 3 on the basis of which report, Exhibit Ka-7 was prepared by him. He did not find any injury to have been caused to injured Smt. Munni in X-Ray.
26. Dr. Anil Khanna (PW-9) had conducted medical examination of injured Khursheed and found one gun shot wound on right side of chest in the area of 5 cm x 1 cm, 5 cm. below right clavical, its depth could not be probed. In the said injury singeing was present; X-Ray was advised; injury was fresh; it could have been caused by fire arm. The patient was sent to P.N. Sharma Hospital.
27. On the same day at 9.10 A.M. he also examined injured Shakhu @ Shabbo and found red abrasion 0.3 cm x 0.3 cm on the tip of left elbow joint, which was found to be simple in nature and fresh and could have been caused by a blunt object or by friction.
28. On the same day he examined the injured Mohid Khan at 9.00 A.M. and found on his person a lacerated wound of 1 cm x 0.5 cm. subcutaneous, on lateral aspect 6 cm below malleolus bone, blood was present. The said injury was of simple nature. Duration was fresh and was caused by hard blunt object.
29. On the same day at 8.45 A.M. he conducted medical examination of Smt. Munni wife of Mohid and found one gun shot wound over front of right side chest in area of 1 cm x 1 cm, 6 cm below medial each of right clavical blackening present, bleeding present, depth could not be probed. Injury was caused by fire arm and it was advised to be kept under observation.
30. On the same day at 8.15 A.M. he examined injured Rais son of Amir Ahmad and found on his person one gun shot wound of 10 cm x 8 cm around medial aspect on left hand with loss of soft tissue. Bleeding and blackening present, kept under observation, X-Ray advised. This injury could have been caused by fire arm.
31. On the same day at 8.00 A.M. he examined injured Shadab son of Zamir Ahmad but examination was not done in respect of injuries because his condition was very critical as he had difficulty in breathing frequently and looking to his condition, the injured was referred to P.N. Sharma Hospital for X-Ray and further treatment. Injured was having injury but in his report he had not mentioned about the said injury.
32. In cross-examination PW-9 has stated that he had found injury on the person of Shadab but he had not mentioned this injury in his report. He was seriously injured and because of that it was necessary to refer him to higher centre and in such circumstance it was not necessary according to medical jurisprudence to mention injuries in the report. Regarding his condition of breathing, he has mentioned dyspneic but he had not noted down the B.P. or pulse in his report and it could not be said that without mentioning pulse rate, the condition of the patient could not have been treated to be serious. He further stated that in a gun shot wound, the edge of the wound is not normally inverted and also it is wrong to say that in all situation in a gun shot wound, the edge would always be inverted. As regards injury of Khursheed, he had not mentioned whether margins were inverted or everted but due to not having mentioned about it, it could not be said that the said injury was not of gun shot and that the same could have been caused by some blunt object or pointed object. The said injury was definitely caused by fire arm. As regards injury caused to Shabbo, the same was not found on vital part of the body and the same was found to be simple in nature. As regards injury of Smt. Munni he has not mentioned about the margins but he could not tell whether the said injury was simple or grievous but the same could not have been caused by any blunt or sharp object. As regards injury caused to Rais which was in left hand he could not tell whether the said injury could have been caused by fire arm. However, he had found blackening all around the said wound caused to Rais but he could not tell whether the said blackening could have come if the shot was made from a distance of one feet or not. Further, he stated that he has not mentioned about margins of the injuries received by any of the injured nor has he given any specific identification on surrounding part of the injury and he denied that he stated about the injuries received by Shabbo and Mohid to be of a gun shot on the basis of legal advice.
33. Dr. Ram Dinkar Jha, (PW-10) had brought the record relating to patient Waris Khan on 13.10.2005 who was admitted in AIIMS, New Delhi in emergency department regarding which original register was brought by him and there was an entry relating to this patient at Sl. No. 825-346/05. The patient was admitted in Neurology Unit-II Department (Exhibit Ka-14) and report was submitted by him. He has stated that the said patient was examined by Dr. Upendra of AIIMS who has left the Institute but the said report was prepared by him as he recognizes his signatures and writings (Exhibit Ka-15). According to this report there were two gun shot entry wounds, out of which wound no.1 was over scalp fronto-parietal region and second wound was in supra clavicular region. The injured could have received the said injuries on 13.10.2005 at about 7.00 A.M. by fire arm and which could have proved dangerous to his life. Glosgow coma scale which ought to have been 15 was 8 (E-1, V-2, M-5). Brain material was coming out of injury no. 1. In totality, the condition of patient was extremely serious. His X-Ray was conducted and there were found hole in his scalp and number of metallic pieces were visible. The report of Zafar Radiologist has been proved by him as Exhibit Ka-16. Further, he stated that the patient was operated in AIIMS on 13.10.2005 by Dr. Deepak Gupta and he had prepared the said injury after having cleaned the wound and the wound was stitched. The patient was discharged on 25.10.2005 and at that time his left portion had become very week. The left eye had been damaged. The record relating to his discharge summary which was signed by Dr. Deepak Gupta was brought by him and the same was Exhibit Ka-17, Ka-18 and Ka-19. Although he stated that he could not find bed-head-ticket of the injured on record therefore the same could not be produced. The report prepared by Dr. D.K. Sharma was filed by him which was Exhibit Ka-20.
34. This witness in cross examination has stated that in Exhibit Ka-15 at the time of initial examination of injured Waris, his mark of identification and thumb impression are not present; who had identified him, has not been mentioned nor was it mentioned as to who had brought him nor as to what was his condition. Further, he stated that regarding all these medical terms that they meant that he was in half conscious condition. E-1 means that despite there being pain there was no movement of eyes; V-2 means that he was speaking but nothing could be understood; and M-5 means that he was moving his hand and legs. In all these conditions, the patient could not tell his own name. Initially medical examination was not done by him nor Exhibit Ka-15 bore his signature and Exhibit Ka-15 also does not indicate as to by which doctor or hospital he was referred. It also does not reflect from the said Exhibit as to from which ward he was shifted. He has also stated that whenever the patient was admitted in hospital, bed-head-ticket is given to him but in Exhibit Ka-15 it is not mentioned, thereafter he has stated that the said Exhibit Ka-15 bears registration no. 136099/05, photocopy of which is available on record and not original documents. Further, he has stated that term bed-head-ticket is not used in AIIMS and it is known as casualty number in AIIMS; which is taken to be I.D. No. of the patient which is CS-136099/-5 which is I.D. No. of the patient. He further stated that he had not seen the condition of injuries of the injured and that he was stating on the basis of Exhibit Ka-15 about the condition of patient, which is a carbon copy but it was correct to say that the said patient was given treatment in Neuro Surgery Department. He admitted that Exhibit Ka-17, Ka-18 and Ka-19 were not in his own writing and signatures. He also admitted that the police had not come with the injured although cases of gun shot do come there which are treated as medico legal. The history of the patient on Exhibit Ka-15 regarding receipt of gun shot injury is recorded on disclosure made by the patient but in the said exhibit it is not made clear as to who had brought him although the person who brings the patient on casualty seat, dates and his name should be entered but the same is not in front of him. In the said exhibit the period when the injury was suffered has not been indicated, hence its duration cannot be disclosed by him. Further, he has stated that he is not a Neuro Surgeon nor Neuro Physician rather has worked in casualty department, therefore, on the basis of his experience he can give expert opinion in this matter. It is wrong to say that the treatment cannot be given without possessing degree of expertise in Neuro Surgery or without being Neuro Physician and it was wrong to say that he was not authorized to give treatment of brain and was not in a position to state anything about injury no. 1 mentioned in Exhibit Ka-15. He admitted that whatever he has stated before the court has been deposed on the basis of the contents of Exhibit Ka-16 to Exhibit Ka-19 and not on the basis of his personal knowledge.
35. Dr. Deepak Gupta, PW-11 of AIIMS Delhi has stated that on 13.10.2005 he had performed operation upon Waris Khan as he had suffered fire arm injury on fronto parietal region and he was in unconscious condition whose level was 2x5 in place of 5x5 and pulse was 100 per minute. Because of his having suffered injury in left hand and feet he had become extremely weak. When his CT Scan was done, it was found that there was a contusion in his fronto parietal region and frontal bone was found fractured and heavy pressure was there on brain. Metallic foreign body was found embedded. At the time of operation, temporal lobe had to be removed while cleaning the wound. The said injury was dangerous to life, because of which he lost vision of his right eye and the said patient still visits him from time to time for follow up treatment and suffers from infirmity in left hand as the power of his left hand had emasculated. The discharge slip of the patient Exhibit Ka-19 was prepared at his dictation. During operation the internal damage was found to have been caused by external injury caused to him.
36. This witness in cross-examination has stated that there is a register in Hospital maintained for entering discharge summaries and in the said register a copy of Exhibit Ka-19 would be there. The said register remains with Medical Officer, AIIMS and he has not brought the said register in court because it was not considered necessary. Further, he has stated that the signatures of Medical Officer on the discharge summary are not required because the treatment is not given under his supervision. He admitted that at the time of conducting medical examination of the injured, he was not head of the Neuro Surgery Department and the discharge summary also does not bear the signature of Head of the Department because they are not normally obtained on discharge summary and he also stated that the said summary does not have seal under his signature. He stated that the patient was admitted on 13.10.2005 till 20.10.2005 whereafter he was discharged. He could not tell whether the patient who has undergone treatment till 20 days would be treated to have suffered from grievous injury or whether a patient who remains admitted beyond that period would be treated to be suffering from grievous injuries. In this regard only forensic expert could give his opinion but it is wrong to say that the injury which was suffered by the injured was not of serious nature, besides his unit of the doctors had also seen the patient because the said patient did not remain under his treatment continuously for 24 hours, rather the whole team takes care of the patient. On the discharge slip there is no signature of other doctors except of his own and it is correct to say that the discharge slip is not forwarded by the Head of the Department. He refused to suggest that the discharge slip was prepared showing injuries to be on the higher side. Exhibit Ka-17 and Exhibit Ka-18 are original of medical OPD register and Exhibit Ka-17 is follow up and it does not contain the record. This case would be treated to be medico legal because patient suffered from gun shot injury and the same is measured by casualty department but he could not tell whether it bore any number of the casualty department. On Exhibits Ka-17 to Ka-19 it was not essential to write casualty number and also he could not tell as to where the patient was admitted in casualty or by whom but denied that he, in collusion with the informant, had prepared the medico legal case.
37. Dr. Neeraj Gopal PW-12 stated that on 13.10.2005 injured Rais Khan son of Amir Khan was admitted by his brother Wasim in Chaurasia Nursing Home where he was visiting doctor. Before his admission he had already been treated in District Hospital, Meerut. At time of his admission, he had suffered from fire arm wound in left hand which had been received by him on the same day in the morning around 6.00-7.00 A.M. The patient was in nervous condition. Pulse rate was 88 per minute and B.P. was 98 MM HC on the higher side. There was bleeding from the wound which was received by him in metacarpal and after being given treatment he was discharged on 18.10.2005. His injury was of serious nature. The other injured Shadab Khan was also admitted in the said Nursing Home on the said date at 1.35 P.M. by Nadeem Khan and he suffered from two fire arm wounds. One metallic bullet was taken out after operation from his chest. His lungs were lacerated and the same were repaired and wound was stitched. The said injury was dangerous to his life. He has prepared injury report which is Exhibit Ka-23. He had also prepared supplementary report which is Exhibit Ka-24. The said injury was possible to have been caused in the morning around 7.00 A.M. on 13.10.2005.
38. In cross-examination, this witness has stated that the name of the person who had brought this patient was not mentioned in the medical report. His initial medical examination was entered in injury register of Chaurasia Nursing Home. During investigation, the Investigating Officer has not taken his statement. Time of admitting the patient on 13.10.2005 is not recorded. He suo moto admitted that when a patient comes to hospital, the date of his admission is entered in admission register. The said register he has not brought in the Court. The injured had not placed any copy of the FIR before him nor had he asked about the FIR being lodged by any of them. He admitted that if the doctor of Govt. Hospital refers any patient, he would be referred to Govt. Hospital only. Injured was not referred to his Nursing Home by P.N. Sharma Hospital rather was referred by Meerut Medical College and he does not know whether initial treatment of the patient was done at PHC, Mawana or not. He also admitted that it was not mentioned in the report whether injury was dangerous to life although injury mentioned in Exhibit Ka-23 was not on the vital part nor any bullet or pallet was recovered from the injury and he stated that the injuries suffered by Rais were not dangerous to life but of serious nature. The metallic foreign body which was extracted during operation of Shadab was sealed by him but the same is not mentioned in his report Exhibit Ka-24 nor has he mentioned as to whom he had got the same received but he denied that he prepared the said report in collusion with informant. Further, he stated that on Exhibit Ka-25 and Exhibit Ka-25/22 there was no reference number of P.N. Sharma Hospital but he had made endorsement that all the formalities were completed by District Hospital, Meerut. He admitted that Shadab was not referred to his Nursing Home by P.N. Sharma Hospital. He admitted that the information relating to Shadab was available in admission register, M-L-C register and police information register although copy of the same was not before him nor had he brought the same and that the Exhibit Ka-25 and Exhibit Ka-25/22 were not forwarded by any authorized person from the Hospital to the Court and the thumb impression of Shadab on Exhibit Ka-25 was not certified. According to Exhibit Ka-23, Shadab was brought by his brother Nadeem Khan. He further stated that he did give treatment to Shadab as a private doctor although it is correct to say that in Exhibit Ka-23 he has not mentioned whether his injury was serious or dangerous to life and denied that he had not brought the original register from hospital with a view to giving benefit to the informant.
39. Now we would like to see as to what has been stated by the accused persons under sections 313 Cr. P.C. in defence. All the accused stated that they have been falsely implicated only to escape conviction in cross case crime no. 278 A of 2007 and have denied the truthfulness of the entire evidence presented from the side of the prosecution. The following witnesses have also been examined in defence namely, DW-1 Amir Ahmad, DW-2 Naseem, DW-3 Sub Inspector Shyam Pal Singh, DW-4 constable Ramdhan and DW-5 Dr. Satendra.
40. It would be proper to analyse the statements of defence witnesses. DW 1, Amir Ahmad has stated on 01/07/2008 that about 5 years and 8 months ago at about 7.00 AM he along with his nephew Naseem and cousin brother Sharif were sitting in his house, right then Samad, Shadab, Munni and Waris came armed with lathis, Salim and Shahbez armed with tabal, Asif armed with gun, Rais and Cheemo armed with country made pistol and started threatening to kill and stated that they would not be left alive and thereafter they all had beaten up Naseem and Sharif with an intention to kill them in which both these persons received injuries. These persons were assaulted with gun and country made pistols, but the injury of fire arm hit Rais of the complainant side itself and he does not recollect as to who else had got injured because it was long time back. He had got Naseem and Sharif medically examined and at the time of occurrence Rabiul, Anees and Arif had come and other villagers had also arrived who had tried to save them and the accused fled from there issuing threats to kill. He had got a report lodged on 16th and had not written the report the same day because they were scared of fresh fight taking place and these injured were got medically examined later on because their condition had started deteriorating and due to fear they could not go to a doctor. Naushab had read out the report to him and after having written it he had signed it. The accused were harbouring animosity towards his nephews because they had cut eucalyptus trees of his nephew Nadeem regarding which quarrel had taken place between them and a report was lodged in this regard and Aftab had gone to jail. The certified copy of the said report was 192 Kha. In cross-examination, this witness stated that at the time of occurrence Naseem and Sharif were present in the house along with him and only he escaped being hurt; animosity was with his nephews and with him also. He does not recollect whether his nephews had received any injuries of gun and country made pistol or not. The persons who were made accused in this occurrence did not visit his home from 13th to 16th. Further he stated that both his nephew Monu and Sharif were living with him and thereafter on his own he stated that both the houses were one and the same although their food used to be cooked separate but they would have their food together. Sharif was not his real nephew, rather was cousin brother while Naseem was his real nephew. The house of Sharif was located at a distance of about 2 furlong from his own house. Sharif also used to live with him and his children live in his house. Sharif always lived with him and sometimes he used to go to his house and sometimes he used to sleep at his (DW-1's) house also. The threat was given on the day when incident happened that if report would be lodged they would be killed. The case which was filed was proceeding in the Mawana court. There was no F.I.R. in front of him which is alleged to have been lodged with respect to cutting of trees, nor was any complaint or report before him in that regard. His nephew's names are Namis, Wasim, Tasleem, Salim and Cheemo who are his real nephews. Against Nadeem, Wasim and Cheemo cases are pending in this court and against Naushad and his son Bobby also case is pending and Raffo is his real brother, against his three sons also case is pending. The house of his brother Naushad is separate from him. His house and house of Raffo are adjacent to each other and there is a wall between them. In the site plan, his house or house of Raffo are not shown. He denied the suggestion that the present case was filed by him in order to save his nephews with four days delay in collusion.
41. Naseem, DW 2 has also reiterated the same version as that of DW-1 and further added that he and his uncle were examined by doctor at 15.10 hours. Sabahat was son of his Phuphi. Two months prior to this quarrel, these persons had beaten them because his brother Nadeem had stopped them from cutting eucalyptus trees, regarding which report was lodged by Sahabat against Salim and others, in which Aftab had gone to jail, a certified copy of the written report dated 11/08/2005 was filed. In cross-examination this witness has stated that Nadeem, Cheemo, Wasim were his real brothers. When Wasim etc. got injured on the spot, he along with him his uncle Sharif, Amir Ahmad were also present there. Neither he nor his uncle nor any of his family members had received any firearm injury, rather the firearm injury were received by the complainant side and there were marks of firearm shots on the gate. From 13th till his medical was done up to 15th he remained at home. Villagers had come there who had rescued him, as a result of which the accused had gone from there issuing threats to kill, because of which they had not gone to hospital also. He showed ignorance in respect of the police having found the place of occurrence to be inside his house, to be wrong or not. Further he stated that on 12th exchange of abuses had happened between him and Munna and Shakeb, report in respect of which was got written against him in which he alone was an accused. He does not know whether in this case Wasim, Nadeem, Tasleem, Cheemo and Bobby were made accused or not. He has denied the suggestion that because of the occurrence of 12th, report regarding which had been lodged, he and his brothers had lodged this report. Further it is stated that he did not come out of house from 13th till 15th.. The doctors had told for getting admitted in P.L. Sharma hospital, but persons at home were not ready, because they were getting treated. For lodging report, his uncle Amir Ahmad had gone and even at the time of his medical examination Amir Ahmad was accompanying him. This witness has denied the suggestion that his brothers had made murderous assault on Waris because on 12th a case was registered against his brothers by Salim and Waris etc. and it was also denied that to save his brothers in the case pending in Mawana court, this false case was slapped and also denied to have got a false injuries prepared.
42. Sub Inspector Shyam Pal Singh, DW-3 has stated to have investigated crime no. 372A/2005 PS Mawana and who had filed charge sheet against Rais, Shadab, Asif and Waris on 6/11/2005 under sections 324, 504 and 506 IPC, certified copy of which is paper no. 193 Kha and certified copy of site plan is paper no. 196 kha. In cross-examination this witness has stated that he had not found involvement of Cheemu, Salim, Shahbej and Samad Khan.
43. Constable Ramdhan has been examined as DW-4 who stated that on 16/10/2005 written report was given by Amir Ahmad against Raisuddin etc. at the PS on the basis of which chick F.I.R. - 304/05 under sections 504, 506, 324, 452 and 147 IPC was registered and the case was entered in GD at report no. 21, time 17 hours. The certified copy of chick F.I.R. is paper no. 192 Kha. In cross-examination this witness has stated that in written report the occurrence was stated to be of 13/10/2005 which was given to him on 16/10/2005, in case the informant had visited him on 13/10/2005 he would have issued chick F.I.R. on 13/10/2005. The informant had also brought medical report along with a written report.
44. Dr. Satendra is examined as DW-5 who has stated that on 16/10/2005 he had conducted medical examination of Naseem Khan who was brought by Nausab around 12:45 AM and in all there were 7 injuries found on his person and the same day Sharif Ahmad was also medically examined at 1:00 a.m. and there were 6 injuries found on his person and these injuries were possible to have been received on 13/10/2005 at about 7 AM and the certified copies of both the injury memos were 194 kha and 195 kha respectively before him. In cross-examination this witness has stated that all the injuries of injured Naseem were found simple which were 2- 3 days old or could be 3 to 4 days old. When the injured had come, till then no F.I.R. was in existence and he had given information about this at P.S.
45. In 194 kha, the injuries of Naseem Khan have been mentioned as below: -
i) One incised wound 4 cm× 0.4 cm × bone deep left side head, 6.5 cm. above left ear kept under observation.
ii) One contusion 11 cm ×1.5 cm over right scapula.
iii) One contusion 10 cm × 3.5 cm, 9 cm below scapular angle over right side of back.
iv) One contusion 8 cm ×1 cm, left side back of chest 5 cm. below left scapular region.
v) One contusion 7 cm ×1.5 cm on left side front of chest, two cm below to left nipple.
vi) One contusion over 6 cm ×1.5 cm outer aspect of left upper arm, 7 cm above left elbow.
vii) One contusion 5 cm ×2 cm on left hip.
Injury no. 1 was caused by sharp edged weapon and kept under observation, other injuries are simple and caused by hard and blunt object duration 2 to 3 days as stated by injured.
No fracture was found in x-ray.
46. In 195 kha the injuries of Sharif Ahmad Khan are recorded as follows: -
i) One incised wound 3.5 cm ×0 .5 cm × bone deep, right side head, 6 cm above right ear, kept under observation.
ii) One contusion 7 cm ×1 cm over right scapula.
iii) One contusion 10 cm ×1.5 cm, left side back of chest, 6 cm below left scapular angle.
iv) One contusion 6 cm ×2 cm, right side back of abdomen just lateral to mid-line.
v) One contusion 5 cm × 1.5 cm, right side chest one cm above right nipple.
vi) One traumatic swelling 2 x 2 cm front of left thigh, complaint of pain left side of chest.
vii) Duration of all the injuries 2 to 3 days. Injury no. 1 is caused by sharp object and kept under observation. All other injuries were caused by hard and blunt object.
No X-ray report was annexed.
47. Now we would like to see as to how the appreciation of above-mentioned evidence is made by the learned trial court and whether there is any error in the same in the light of the arguments made before it.
48. Before appreciating the evidence, it may be mentioned that the present case has a cross case also, therefore the learned trial court had relied upon Nathilal and others vs State of U.P. and another, 1990 (Supp ) Supreme Court Cases 145 wherein it has been laid down by the Hon'ble Apex court that in trial of cross cases, each case requires to be decided on the basis of evidence placed on record in that particular case without being influenced by evidence or arguments urged in cross case and judgment is also required to be pronounced by the same Judge one after other. On this premise the evidence which has been led by the prosecution in the present case has been considered by the learned trial court. It is also noteworthy that in defence, the accused has also filed certified copies of the F.I.R., charge- sheet, statements of witnesses of prosecution, injury memos and site plan to establish that the accused side had also been beaten by the informant side in which they received injuries and therefore the learned trial court had to adjudge as to who was the aggressor and based on the nature of injuries, their number, seat of injury, the manner in which they were caused and the weapons used in causing them, it has opined that the injuries suffered by the defence side of to be simple nature while the injuries caused to the informant side were of grievous in nature to all the injured except Mohid Khan and Shabbo who had suffered simple injuries, therefore it was concluded that the accused side was aggressor while the informant side did not make any assault in defence nor in the process did they cause any injury to the accused side. We are in agreement with the said conclusion drawn by the learned lower court and would throw more light in this regard in course of this judgment.
49. The facts as revealed from the evidence on record would indicate that according to the informant side on 13/10/2005 at about 7 AM the appellants (1) Cheemo (2) Nadeem (3) Nawab (4) Salim (5) Bobby (6) Farid and (7) Wasim armed with gun, rifle and country made pistols invaded informant's house and abusing and giving threats to kill, opened firing upon them by their respective weapons with an intention to kill which caused injuries to (1) Waris, (2) Shadab, (3) Rais Ahmad, (4) Samad Khan, (5) Smt. Munni, (6) Mohid Khan, (7) Khurshid and (8) Shabbo in which Waris and Shadab had received serious injuries which necessitated hospitalising them. Regarding this incident F.I.R. was lodged the same day at 7:30 PM, the place of occurrence was located 9 kilometres away from the PS concerned, therefore the F.I.R. was promptly made without there being any scope of manipulation and appears to be trustworthy to us. All the arguments made against the same being anti-timed are not found to carry weight. Whatever minor discrepancies are pointed out are ignorable.
50. A cross FIR being crime no. 372 A/05 under sections 147, 452, 324, 504, 506 IPC had been lodged by Amir Chand son of Amirulla against (1) Rais (2) Chunnu (3) Asif (4) Salim (5) Shahbej (6) Samad Khan (7) Shadab (8) Waris on 16/10/2005 at 17.00 hours stating therein that occurrence took place on 13/10/2005 at 7.00AM when Rais and Chunnu being armed with country made pistol, Asif armed with country made gun, Salim armed with tabal, Shahbej armed with tabal, Samad, Shadab and Waris armed with lathis abusingly entered the house of the informant threatening not to leave them alive, with common object to kill them and assaulted Naseem and Sharif by tabal and lathis and also made fire upon them which hit the doors of their house and also to Waris and Naseem and Sharif who received serious injuries and this incident took place because from the family of informant, Samad and his family members had enmity because Salim etc. had cut eucalyptus trees of the informant and when a complaint was made regarding this, then the accused side had assaulted by fire arm, the nephews of informant and others with an intention to kill, report regarding which was lodged at PS Mawana, and Aftab was sent to jail. After investigation in this case charge- sheet was submitted only against (1) Rais (2) Shadab (3) Asif (4) Waris and during argument it was apprised that accused had been acquitted, against which appeal was filed, but even appeal has been dismissed and it was also apprised that the earlier case which was filed with regard to occurrence which happened between the parties prior to the occurrence of 13/10/2005, even in that case the accused were acquitted. In the present case, that is, crime no. 372 of 2005 (1) Rais (2) Shadab (3) Waris who were accused in crime no. 372 A of 2005, are among the injured persons and Shadab and Waris had received very serious injuries and both of them had become unconscious. According to PW-1, at the time of occurrence he was inside the house and when the incident started happening, he came out of the house and saw the accused persons making fire, however he did not receive any injury; he made it clear as to which accused was wielding which weapon and also stated that all the accused had made fires from their respective weapons by which the injured persons had received injuries. During argument, it was pointed out before trial court that he was not present on the spot at the time of incident and had lodged false report, but the learned trial court was not in agreement with that argument and rightly so because he had clarified that in his statement he had not taken name of Sartaj as he could not recollect the same, which was quite natural, however in his second statement he made clear statement that at the time of incident his mother Sansar Fatma, father Jamir Ahmad, brother Sartaj and he himself were present and together with the injured persons, Samad Khan was also present and all of them had received injuries, therefore it was found that no ill effect would be borne upon the prosecution's case, of the said contradiction because excepting Samad Khan, all the remaining persons , that is, Waris, Shadab, Shabbo, Rais, Mohid, Khurshid and Smt. Munni had received injuries which proves their presence on the spot adequately. We are totally in agreement with this finding which is in consonance with the evidence on record.
51. As regards place of occurrence, the same is shown in front Baithak of injured Waris in site plan while PW-1 stated that the place of incident was his house, but the house of the informant and Baithak of Waris are adjoining to each other, therefore it could not be said that the incident did not happen in front of the house of Waris. Therefore from the statement of PW-1 it was established that at the time of occurrence accused Cheemo and Nadeem assaulted by gun, accused Wasim by rifle and Bobby, Salim, Nawab and Farid by country made pistols upon the informant side and caused injuries to the injured of his side.
52. PW-2 Waris who is an, injured witness has clearly stated that occurrence took place on 13/10/2005 at 7.00 AM in which all the appellants named above had made fire by gun, rifle and country made pistols upon Shadab, Rais, Shabbo, Mohid, Smt. Munni and Khurshid with an intention to kill, who were sitting at Baithak causing them injuries; Waris held fallen soon after getting hit on the right side of his head and because of that injury his left leg and left hand had become dysfunctional; when he regained consciousness, he found himself in a hospital in Delhi where police had taken his statement and because of the said injury his vision had diminished; he had remained admitted into hospitals there, that is, in All India Institute of Medical Sciences for 9 days and did not recollect the name of other hospital. In cross-examination he admitted that all the accused appellants had made fire upon him but he could not separately disclose as to the fire of which accused hit him nor could he tell separately as to which accused was holding rifle, country made pistol and gun separately, however he made it clear that the fire was made from a distance of 4 to 5 steps and also stated that in this incident Samad Khan had also received injuries but whether he had been treated or not, he could not say. He further stated that in this incident he had received gun shot injury and besides him Shadab, Rais, Smt. Munni, Khurshid and Mohid also had received injuries. He also stated that after having been treated in AIIMS he could not be cured fully and for further treatment he had undergone treatment in Sabir nursing home. Therefore his statement seems to be consistent and nothing could be elicited in cross-examination so as to falsify his statement with respect to the injured persons having been fired upon by the appellants and about his having received serious injuries. His statement further finds corroboration from medical report which shows that he had blackening in his wound, therefore as per his version the shot could have been made from 4-5 steps away which also stands in consonance with site plan. As regards his not being able to disclose the weapons in the hands of the accused and whose shot hit him, that is very natural statement and hence is found to be trustworthy by us.
53. Similarly PW-3, Shadab who is also an injured witness and has also corroborated the version of informant as well as of PW-2, in respect of place of occurrence, time and the date and indiscriminate firing made by accused appellants upon informant side in which a gunshot wound was received in his chest which resulted in his getting unconscious and subsequently was taken to Mawana hospital and from there all the injured were sent to Pyare Lal Sharma hospital and thereafter he remained hospitalised in Chaurasiya Nursing Home and was operated . Thus he has proved the injuries caused to the informant side and to him in particular from the side of the accused in the manner alleged by the prosecution and has also proved that the incident happened in open place outside Baithak which was situated on the main road, the distance between Baithak and main road being 4 to 5 steps. The firing was stated by him to have been made from a distance of 4 to 5 steps which stands corroborated by other witnesses also. Though his statement also suffers from some minor contradictions but they are not in regard to material particulars, hence we find his statement also trustworthy in totality. Therefore we find from the statements of PW 1, PW 2 and PW 3 that they have clearly proved that the injured persons had been caused injuries particularly Waris and Shadab had received injuries dangerous to their lives while other injured had also sustained fire arm injuries. We are inclined to believe the statements of these witnesses though they are related witnesses because their testimony carries weight due to their being injured witnesses and it was not necessary for examining all the injured persons to prove the case of prosecution because it is not the quantity which matters rather the quality of statement is material.
54. We would like to rely upon Madhavan and others vs the State of Tamil Nadu, (2017) 15 Supreme Court Cases 582, in which the Hon'ble Apex court held that previous enmity in connection with land dispute between families of accused and deceased led to an altercation between them followed by assault leading to death of one due to injuries and the assault was made by five accused persons. The evidence of eye-witnesses including the injured witnesses was found to be credible. Nature of injuries caused to the deceased was corroborated by Doctor conducting post-mortem and the injuries suffered by accused side were found to be simple, incapable of making any difference to case established by prosecution, hence the finding of guilt recorded against each of the accused under sections 304 part II/149 was found to be in conformity with evidence produced by prosecution and the conviction was upheld. The facts of this case appear to be close to the present case except the fact that the present case relates to section 307 read with section 149 IPC. In this case it was also held that the principle for sentencing should be proportionality and should be adhered to.
55. Now we would like to consider the evidence led by the defence side, in which the main reliance has been placed upon the statements of DW-1, DW-2, and the injury memos of 2 injured persons, who have received several injuries which have been narrated above. The learned trial court has considered these injuries at length but has arrived on a conclusion that they were found to be of simple nature by the Doctor and were alleged to have been caused to the accused side from the side of informant inside the house of the informant of the cross case, but the whole incident as reported by the informant of the cross case was found to be false by the court as the accused of that case have been acquitted after having made in-depth evaluation of the evidence. Because of the trial court having acquitted the accused in the cross case, we are not making very in-depth evaluation of the evidence led in defence because the same has been disbelieved by the trial court as well as appellate court and which has become final, therefore we are of the view that on the basis of evidence led by the prosecution in this case it is very well proved that the accused appellants were involved in causing serious injuries to two injured Shadab and Waris of the present case while rest of the injured persons had received fire injuries but not that serious. The injury caused to Waris by all the accused appellants in prosecution of common object to kill him only were sufficient to hold all the accused jointly guilty under sections 307 read with sections 149 IPC because it is unidentifiable as to by fire of which accused Waris was caused serious injuries which could have proved dangerous to his life and he could have died but for the treatment given to him. Since none of the accused is stated to have been armed with Lathi Danda or any other weapon, therefore we are of the view that the punishment awarded under sections 325 read with 149 IPC does not stand vindicated. Similarly since the accused appellants were not armed with any Lathi and Danda, the conviction under sections 147 IPC also does not seem to be justified rather the conviction under sections 148 IPC seems to be justified because of the appellants being armed with lethal weapons being fire arms. As regards Section 506 IPC, the same stands redundant because threat to kill is preceding stage of making fire upon the injured and in the case in hand we have already held all the accused appellants guilty under section 307/149 IPC, it would not be very material to hold guilty and award punishment to accused appellants under sections 506 IPC also. Moreover, no words uttered during use of abusive language have been specified in evidence, hence office and recession 504 IPC also does not stand proved and all the accused appellants deserve to be acquitted under that offence. We are further of the view that this case being at the most of an offence under section 307 read with sections 149 IPC, the punishment awarded to the appellants seems to be on the higher side and would like to reduce the same to 10 years rigorous imprisonment along with fine already awarded by the trial court along with default clause and also would like to uphold the sentence awarded under sections 148, IPC but as regards offence under section 325 read with sections 149 IPC, Section 147 and 504 IPC all the accused deserve to be acquitted.
56. We, therefore, are of the view that this appeal deserves to be partly allowed and is accordingly allowed reducing the punishment of the appellants under sections 307 read with 149 IPC to 10 years rigorous imprisonment and the fine already imposed by the learned trial court with default clause and maintain the sentence and award of punishment under section 148 IPC, but acquit all the accused under sections 147, 504 IPC and 325 read with 149 IPC. We order accordingly. Since accused appellants are already in jail, a copy of this judgment be transmitted to the trial court forthwith for necessary compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 13.12.2018
AU