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6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of learned counsel for the appellants that as the trial had suffered from inherent defects, on account thereof, did not justify the finding recorded by the learned lower Court. In order to substantiate such plea, it has been submitted that from the fard-bayan itself, it is apparent that during course of occurrence, informant, Ladle, Iqbal Nasir along with his brother Pintu, other friends, relatives were gossiping making plan in order to relish marriage of Fufera brother, but none other has been examined on behalf of prosecution nor there happens to be an explanation at the end of the prosecution. The aforesaid activity has purposely been taken up by the prosecution in the background of the fact that they themselves have indulged in criminal activity against Mumtaz after forming an unlawful assembly, which was reported to the police and during course thereof, a raid was conducted and some of them were apprehended which the witnesses had admitted during course of cross- examination. Apart from this, it has also been admitted at their end regarding presence of a criminal case lodged on account of kidnapping of Husn Ara, though defence had not examined any DW, but from the cross-examination of the witnesses, it is manifest that there happens to be every possibility of their victimization at the end of the villagers, who came in action in retaliation of illegal activity of the prosecution party. In the aforesaid facts and circumstances of the case, even though there happens to be presence of injury for that, the appellants would not be identified as an author.

17. Be that as it may, the obligation happens to be on the prosecution to substantiate its case beyond all reasonable doubt and the evidence of defence is to be seen in a way to find out onus having shifted upon them, been duly discharged?

18. PW-1 had alleged that on the alleged date and time of occurrence, he was at his Darwaza. He was gossiping over preparation of marriage of his Fufera brother Nazib Akhtar at Kolkata and at that very moment, Haseri came and cordoned them. He was talking amongst his brothers, friends and named some of them as Md. Guddu, Bobby, Marshal, Pinku, Ladle etc. He had identified some of the members of the mob as Gulam Mustafa, Sitare, Nirale, Mehndi Hasan, Asgar Ali, Ashraf Ali, Shaukat Ali, Md. Fuddu Hasan, Gulam Hasan, Gulam Haider, Safdar Ali, Md. Matin, Md. Shahjada, Parwez Alam, Jawed, Naqui Haider, Bechu, Arun Kumar and had also claimed identification against the others. On an order of Gulam Mustafa, Sitare fired aiming him which caused injury over his chest, Nirale had fired from his pistol causing injury over his right shoulder, Naqui Haider fired from his pistol causing over his right inter-coastal region (Panjar), Gulam Haider had fired causing injury over his left inter-coastal region (Panjar), then thereafter, Sitare shot at Ladle causing injury over his chest and Gulam Haider shot at over his left shoulder. His cousin brother Marshal lifted them in order to provide medical facility, who was also victimized after smashing front glass panel of his vehicle and then, assaulting by means of axe by Gulam Hasan causing injury over right side of his neck followed by Farsa blow by Matin over his head. However, he anyhow managed to drive up to R.B. Memorial Hospital where they all were treated. Police came before whom, he had recorded his fard-bayan over which he put his signature (identified). He had further stated that aforesaid occurrence was committed on account of previous enmity. He had further stated that his parents have disclosed that the members of the Haseri had ransacked his house, set ablazed scooter, motorcycle as well as harvested crops kept in the Khaliyan. Considering the nature of the injury, he was referred to AIIMS, New Delhi and then, was also treated at Apollo, New Delhi. Due to firing, his spinal cord fractured as a result of which, he became crippled, identified the accused in dock. During cross-examination at Para-3, he had stated that a false case has been instituted relating to kidnapping of Husn Ara. It has also been stated by him that he is unaware whether Husn Ara has been recovered or not. He showed his ignorance relating to apprehension of large number of anti-social elements with arms and ammunitions from his house on the alleged date and time of occurrence. In Para-4, he had admitted that the house of Roshan Ara lies in front of his house intervened by a road. He had further admitted that a false case has been instituted by the husband of Roshan Ara on the same day and it is false to say that 17 persons were apprehended from his house relating to the said case along with arms and ammunitions, wherein, charge had already been framed against nine accused persons. He is unable to say, who are the accused persons. In Para-5, there happens to be detailed description of genealogy of his family. Marshal happens to be son of Nazul Hoda and is his cousin brother. He is not remembering whether so many cases have been drawn up against him. In Para-6, he had stated that at the time of occurrence, 10-12 persons were sitting at his Darwaza including his family members as well as friend of his cousin brother, but he is unable to disclose their identity. At that very time, none of his elderly family members were present. In Para-9, he had admitted presence of one Hasib brother of Nasib Akhtar, an accused along with him relating to kidnapping case. In Para-10, he had stated that some of the members of the Haseri came from Eastern side while some from Western side. The persons, who came from Western side, out of them, some were identified, who happen to be Md. Bechu, Naqui Haider, Arun Kumar, who were also armed with deadly weapon. The persons, who came from Eastern side were also duly armed which they used during course of commission of the occurrence. In Para-12, he had stated that the Haseri cordoned them all around on account thereof, he is unable to disclose, who was north to him. Further stated that his cousin brother along with his friends were present at North, South, East, West to him at the Darwaza. They were about 20-22. The members of the Hanseri did not fire just after arriving. Firing was made from Eastern as well as Western side one by one. He along with Ladle was sitting, both having northern front. They both sustained firearm injury within 3-4 minutes. First of all, he was shot at and then, Ladle. Then had stated that bullet remained inside his body, while one of the bullet passed through. In Para-13, there happens to be topography of the Darwaza where they were sitting. He had further stated that his parents, sisters, uncle, aunt were inside the house as well as over roof. They had not come to lift them. Marshal lifted them in his Maruti Van. While he was to proceed, the members of the Hanseri smashed front glass and then, assaulted by means of axe as well as Farsa. Then there happens to be description with regard to treatment having carried out at the hospital under Para-15. He had further admitted at Para-17 that his cousin brother, brother and friends are an accused relating to Arms Act. In Para-18, he had shown reason of animosity with Naqui Haider. Then there happens to be contradiction relating to his fard-bayan. In Paras-24, 25, there happens to be suggestion that they had raided house of the Mumtaz having joined by anti-social elements, assaulted family members of Mumtaz, whereupon police was informed, came and arrested. In Para-33, there happens to be disclosure regarding land dispute with Asgar and Asraf. In Para-34, there happens to be admission at his end that he happens to be accused in Ashok Paper Mill P. S. Case No.30 of 1997. In Para-36, he had stated that firstly he sustained injury over his chest followed by another round and then, another round, then another round and then thereafter, Ladle was shot at covering approximately 4-5 minutes. In Para-39, he had disclosed that on the following day, he regained sense at the hospital. In Para- 31, he had shown ignorance regarding accused persons of this case being witness in the earlier case. He had also admitted presence of Ashok Paper Mill P. S. Case No.18 of 1997, Ashok Paper Mill P. S. Case No.30 of 1997 against him under Para-32. He had also admitted presence of Ashok Paper Mill P. S. Case No.28 of 1996 instituted by Jaitun Nisha, which ended in compromise. In Para-35, he had shown ignorance regarding Ahmad, Mohammad, Umesh Kumar Mahaseth, Niraj Kumar Singh, Pintu Kumar, Sonu, Shivtullah, Tofique Ahmad, Abdul Hasi Warsi, Md. Jamal as well as others were sitting along with him. In Para-36, he had admitted that Guddu and Md. Raju were along with him. Then, he had denied whether police had seized motorcycle from his place. Then had denied the suggestion that Asraf and Asgar have been falsely implicated.

19. PW-2 is another injured Iqbal @ Marshal. He had deposed that on the alleged date and time of occurrence, he along with his brother Pintu had come to his native place where they were discussing with his cousin brother regarding preparation relating to marriage of another cousin brother. While they were gossiping, the mob consisting 30-34 persons armed with deadly weapon, came and encircled. Gulam Mustafa ordered to kill, whereupon, Sitare, Nirale, Gulam Haider, Naqui Haider @ Roshan fired at Md. Hira by gun. Two shots having fired by Sitare stroke over Hira causing injury over chest, firing made by Nirale caused injury over right shoulder, Gulam Haider and Naqui Haider shot at left-right Panjar respectively. Hira fell down having been in pool of blood. Then again, all these four shot at brother-in-law (Sala) of Hira namely Ladle causing injury over his chest as well as shoulder. Then thereafter, he along with his brother lifted both of them for their treatment and during course thereof, they all have surrounded his vehicle, Gulam Hasan smashed his front glass and then, Matin gave axe blow, again Matin had given axe blow over his head causing injury thereupon. Anyhow, he succeeded in driving the vehicle to R.B. Memorial Hospital where they were admitted, treated. On account of injury, Hira became disabled and is confined to wheel-chair. He identified Gulam Hasan, Fool Hasan, Gulam Mustafa, Parwez, Bechu, Shahjada, Roshan, Matin, Jawed out of the unlawful assembly. During cross-examination, he had stated that he is residing at Kotwali Chowk, Laheria Sarai. Whether his land lies in the village or not, he has got no knowledge. His father would be able to say. He had further stated that he does not know Roshan Ara. In Para- 4 he had admitted that he had gone to Jail relating to abduction case and remained there approximately for seven months. In Para-6, he had admitted presence of so many cases relating to land. In Para-7, he had further admitted that case is going on relating to kidnapping of daughter of Roshan Ara wherein his father happens to be an accused. In Para-10, he had deposed that at the time of gossiping, his uncles Nurul Hoda, Nazbul Hoda were also present. His father was not present. Villagers were not present. Marriage was to solemnize after four days of the alleged occurrence. The brother of bride-groom was also present in the discussion. In Para-11, he had stated that firstly he had gone to the place where marriage was to be solemnized and then, came to his place. He stayed at the place of his Fua for ten minutes, talked with his Fufa and then, came to the place of his uncle Nurul Hoda. In Para-12, he had stated that occurrence took place at the house of his uncle Nurul Hoda. When he reached at the place of occurrence, he had seen Ladle, Hira, Guddu since before. He along with his brother joined. All of them sat at Darwaza which has got northern front. He is unable to disclose the length and breadth. Road lies in front of Darwaza. In Para-14, he had stated that Haseri came from northern side, they were sitting at the Darwaza having northern front. He was sitting at the Western flank while others were sitting at the Eastern flank. Hira had Western front while he had eastern front. Hira was shot at, at the distance of two feets, there was 8-10 rounds of firing by the accused persons. Hira had sustained 3-4 injuries. He was not at all aimed. Neither his brother nor his Fufera brother was aimed. First shot was given at Hira while he was standing and then, he fell down. Thereafter, he was shot at repeatedly from a distance of one feet. He was lying over backside. At that very time, he was north to him. Two rounds were fired at Ladle. They had not escaped there from to save their skin. None of the members of the mob gave Farsa, spear, lathi blow over Ladle as well as Hira. In Para-15, he had stated that he is not remembering whether gun was single barrel or double barrel. In Para-17, he had stated that while he was lifting Hira and Ladle at that very moment, Gulam and Matin assaulted him. He was assaulted with axe over his neck and then, Matin gave farsa blow. Matin had not inflicted axe blow. Even after sustaining injuries, he remained conscious. Matin had given farsa blow while he was standing. Farsa blow was given from front side. He had sustained single farsa blow. He was not at all shot at. They were not assaulted after his assault. In Para-19, he had stated that he reached at the Hospital at about 4.30 p.m. After reaching at the hospital, they all became unconscious. When he regained sense, he found his father present by his side. He regained sense on the following day at about 7.30 p.m., police came to hospital. Even after regaining sense, he had not gone to see his brother as he was physically incapable. In Para-20, he had stated that front glass of Car was smashed and then, he had sustained injury. Then had denied the suggestion that they have not sustained injury in a manner as disclosed by him. He had further denied the suggestion that they had not gone to the hospital.

20. PW-3 is Ladle, who had deposed that on the alleged date and time of occurrence, he was present at the place of his brother- in-law (Bahnoi) in order to discuss the strategy to be followed during course of marriage of his brother (Fufera brother). At that very moment, mob came at the Darwaza of his brother-in-law wherein he had identified Gulam Mustafa, Sitare, Nirale, Matin, Fool Hasan, Gulam Hasan, Gulam Safdar, Gulam Haider, Mehndi Hasan, Asgar Ali, Shaukat Ali, Ashraf Ali, Shahjada Parwez, Jawed, Bechu, Arun Kumar Paswan, Naqui Haider @ Roshan along with 10-15 persons against whom claimed identification, having variously armed with deadly weapon. On an order of Gulam Mustafa, Gulam Haider shot at Hira causing injury over his shoulder followed by Sitare and Nirale on account of which, Hira sustained injury over his both Panjar. Naqui Haider @ Roshan fired which struck over chest of Hira. When he rushed, he was shot at by Gulam Haider as well as Shaukat Ali, which struck over chest left side. Then thereafter, the accused persons lit fire in the harvested wheat crop. They had also lit fire in the motorcycle. Then thereafter, Marshal while lifting both of them in a way to hospital, was surrounded by the members of the mob, who smashed front glass of his car and then, Gulam Hasan gave axe blow over neck of Marshal while Matin gave Farsa blow over head of Marshal. Anyhow, Marshal carried them to R. B. Memorial Hospital where they were admitted and treated. His statement was also recorded under Section 164 of the Cr.P.C. During cross-examination, he had admitted presence of case against him as well as his relatives launched by Mumtaz, which is going on. He had further admited presence of kidnapping case at the instance of Roshan Ara, wife of Mumtaz with regard to kidnapping of her daughter Husn Ara. He had further admitted that on the alleged date, some of the persons coming from City were arrested in the village. Then had shown ignorance with regard to criminal conduct of Marshal and his family members along with the fact that they happen to be habitual criminals. He had further stated that about 26 persons were present at the Darwaza of Hira, all were youngsters. Neither bride-groom nor his father was present. He had further stated that his father is already dead. Gossiping began right from 12.00 noon, soon thereafter, Haseri came and having an order, firing began. Marshal was present in the meeting. First of all, Hira was shot at and then, he himself. At that very time, firing was made from the sahan. All the members of Haseri were present at one place. Gulam Mustafa was leading the Hanseri, his assailant was two meter away at southern side. 10-15 rounds of firing was made. Accused persons set ablaze motorcycle, which was parked at Sahan, vehicle of Marshal was not put on fire. When Marshal lifted them and was to carry, then thereafter, smashing front glass of the vehicle, he was assaulted. Then had denied the suggestion that no such type of occurrence had ever taken place.