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2. Raffoo alias Rafique Pahalwan, brother of accused Mohd. Shafique and accused Hafiz Pahalwan was murdered at Bhopal on 25-7-1986. First Information Report of the said incident was lodged by accused Shafique at Police Station Hanumanganj, on which Crime No. 647/86 was registered. Iftedar (P.W. 4) and Kazi Sirajuddin (deceased in the present case) were accused in that case.

3. The prosecution case is that the murder trial of Raffoo alias Rafique Pahalwan's case was fixed on 8-6-1987 in the Court of Additional Sessions Judge, Bhopal. The deceased Kazi Sirajuddin came to the Court to attend the case along with his son Iftedar (P.W. 4), brother in laws Umar Pharooque Sadi (P.W. 10) and AS. Bilgrami (P.W. 27) and the nephew Rais Wali (P.W. 8). The case was adjourned since the Presiding Officer was on leave. When these persons proceeded towards maingate, the accused Mohd. Shafique fired at Kazi Sirajuddin, which hit in his chest and another shot by accused Irphan hit Iftedar (P.W. 4). It is also alleged that other shots fired hit Kunjilal (P.W. 7) and Balram (P.W. 31). Accused Sanna alias Sageer Ahmed stands acquitted while accused Seharyar Ali Madni died during the course of trial.

8. The prosecution examined 32 witnesses. Out of them, nine are eyewitnesses. Dharmendra Verma has been examined as Court witness. Iftedar Azam (P.W. 4), Kunjilal (P.W. 7) and Balram (P.W. 31) were injured persons.

9. In defence, two witnesses, namely, Shiv Singh Thakur and Suresh Kumar Tiwari have been produced.

10. The Trial Court acquitted the accused Sanna alias Sageer Ahmed for prosecution failing to show his presence at Bhopal and participation in the crime. It was found that he was at Hyderabad on the date of occurrence as stated by him. Another accused Seharyar Ali Madni died during the course of trial. Accused Mohd. Shafique Pahalwan, Hafiz and Irphan have been found guilty for the offence they were charged and punished to various terms of imprisonment mentioned in the preceding part of this judgment. Therefore, the Trial Court judgment has been challenged by the accused in this appeal on number of grounds.

12. Before dealing with the version of relation witnesses, a reference may be made to some important independent witnesses of the prosecution. Kunjilal (P.W. 7) and Balram (P.W. 31) were part of the crowd at the place of occurrence. They received bullets injuries. Kunjilal (P.W. 7) states that he did not see the accused firing nor he saw, who shot at him. Although he has been declared hostile, but nothing substantial could be gathered by the prosecution from his cross examination. He states that 4-5 thousands people had gathered there and they started running here and there. He did not see any one running from place of occurrence but people were saying that killer was running away. Balram (P.W. 31) also states that he did not know, who hit him by bullet. He did not know who fired the shot nor he knew that the persons ran away. He did not know how many shots were fired.

25. Next, the Police Station was informed at 1 p.m., Rojnamcha Sanha No. 700 by telephone attendant from Hamidia Hospital that Dr. Vijay Jalota, on duty, attended the deceased and the injured. In case, the Inspector Shyamlal Yadav (P.W. 32) was in the hospital as alleged, there was no occasion to inform the Police about the injured, who was attended by Dr. Vijay Jalota. Dr. Vijay Jalota did not say anything about the presence of Inspector Shyamlal Yadav (P.W. 32). Similarly, Shyamlal Yadav (P.W. 32) did not say that the deceased and the injured were attended by Dr. Vijay Jalota and he was informed about the same. Similar is the case with Dr. Ashok Sharma, who attended the deceased and the injured and recorded their history, found Kazi Sirajuddin dead and kept his body for examination while other injured were examined. Further, Inspector Shyamlal (P.W. 32) has admitted that in the Hospital, adjacement to the emergency ward, there existed police assistance room with public telephone and wireless facility. Information could be gathered and conveyed through this center, which means he was not in the hospital as alleged by him. It is also found that the injured were being bandaged and examined in different branches of the Hospital. There is no evidence suggesting the time when Dehati Nalishi (Ex. P-4) was recorded. Another sang here is that Iftedar Azam (P.W. 4) had been admitted along with injured Kunjilal (P.W. 7) and Balram (P.W. 31) in the hospital. No application requesting the Doctor to make available Iftedar Azam (P.W. 4) for recording the Dehati Nalishi (Ex. P-6) is there. The Doctor was not associated when this statement was recorded. The Doctor was not asked whether Iftedar Azam (P.W. 4) was fit to make statement nor any of the Doctors attending the injured associated when Dehati Nalishi was written. None of the Doctors including Dr. D.K. Apathy (P.W. 29) said about the presence of Inspector Shyamlal Yadav (P.W. 32) in the hospital for recording the statement of Iftedar Azam (P.W. 4), meaning thereby hospital record completely eliminates the presence of Inspector Shyamlal Yadav (P.W. 32) in the hospital during that time. This is clear from his admission that he could not say whether time about his departure or arrival was recorded in the Roznamcha Sanha. He could not say at what time, he reached the police station. At one stage, he admits that he went to hospital for second time at 3 or 3.30 p.m., which means he may have visited hospital at the time when autopsy of the dead body was conducted which is between 3.15 p.m. to 3.45 p.m. Iftedar Azam (P.W. 4) was examined at 12.45 p.m. and subjected to further tests, which means he could not be available to Inspector Shyamlal Yadav (P.W. 32) before that period. This is further clear from the statement of Iftedar Azam (P.W. 4) that he came to know about the names of the accused in the evening, but the names of accused find mentions in the FIR. This means Dehati Nalishi (Ex. P-6) and FIR (Ex. P-4) were recorded in the evening but made to appear that they were recorded at 12 noon and 12.15 noon respectively. It is admitted that during framing of panchanama, it did not come to the knowledge of the panchas, who killed the deceased. The only thing they knew was that the deceased was killed by bullet. Iftedar Azam (P.W. 4) and other injured have not said anything about meeting Inspector Shyamlal Yadav (P.W 32) in the hospital nor Shyamlal Yadav has said where he was after departure from the police station. Dr. D.K. Satpathi (P.W. 29) states that Iftedar Azam (P.W. 4) did not tell him about any kind of weapon in the hands of the accused. Inspector Shyamlal Yadav (P.W. 32) admits that while recording of statements of witnesses during investigation it came out that firing was done only by one person.