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5. The factual matrix of the prosecution case in brief are that the informant/defacto complainant Veerpal Singh filed written report bearing date 9.9.1980, at Police Station Hazrat Nagar, District Moradabad alleging therein that there is a land of Gram Samaj at his village Chhichera, in which his co-villager Suresh and his father Bhukhand Saran have erected a wall in an illegal manner, which was objected to by his brother Netrapal Singh and a litigation is pending in the Court in this regard. A proceeding under Section 107/116 Cr.P.C. was also undertaken in this regard against Netrapal Singh and others and for that reason, Suresh and his family members were bearing a grudge against his brother Netrapal Singh. On 8.9.1980, the informant and his brother Netrapal Singh were returning to their native village on a tractor from the place of the in-laws of their elder brother namely, Atar Singh. The tractor was being driven by Ramveer Singh, the brother-in-law of his elder brother. Netrapal Singh was also sitting on right mudguard and the informant was sitting on left mudguard of the tractor. When they reached by tractor on western trisection of village Adaula Mafi, which is in the vicinity of their village abadi at around 9:00 PM, they saw in the light of the tractor that Suresh, Wahid, Shahjad, who are his co-villagers and Ram Pal alias Ram Phal were standing on said trisection. Suresh was armed with a single barrel gun whereas Ram Pal was armed with a tamancha (countrymade pistol) and other two miscreants were armed with lathi. They stopped the tractor of informant's side. Suresh threatened and challenged Netrapal Singh that as he obstructed the erection of his wall and instituted a case in that regard, he would not be spared and will be eliminated on that date. The informant, his brother and relative pleaded their stand and tried to pacify the accused persons but with no result. In the meantime, Gajendra Singh, Khooba Pasi and Sompal Singh came from the side of village Ahraula. Gajendra Singh and Khooba were holding torches and were flashing them. Sompal resides in the village of the complainant while remaining two other witnesses namely Gajendra Singh and Khooba Pasi resided in village Kasimpur. They also tried to pacify the accused persons. Accused Wahid, Shahjad and Ram Pal alias Ram Phal exhorted accused Suresh to kill and thereupon, Suresh fired a shot from his gun which hit Netrapal Singh, who died on the spot. After being hit by the fire, Netrapal Singh fell down on the tractor itself and thereafter the accused persons ran away towards the fields. These accused persons were identified clearly in the light of the tractor and also by the flashes of the torches of the witnesses. Due to fear, these persons brought the dead body of the Netrapal Singh to village Chhichera on that very tractor to the house of the village Pradhan. It was only in the morning that a written report was lodged in the police station at 6:30 AM by Veerpal Singh. In this FIR, four persons were named and requisite details of the incident and nature of arm wielded by accused persons was mentioned together with the names of the witnesses and source of light at the time of incident. The inquest on dead body of the deceased was conducted on 9.9.1980, at 9:00 AM and postmortem examination was carried out on 11.9.1980, at 5 ¼ PM.

36. PW-1 Veerapal Singh, the informant, while supporting prosecution case submitted that in the morning he went to the village Sendari, Police Station Asmouli to bring the tractor from the in-law's house of his elder brother namely, Atar Singh. After evening, they were returning back with the tractor, which was being driven by Ramveer Singh, brother-in-law of Atar Singh. Deceased Netrapal Sing was sitting on the right mudguard and Veerpal Singh was sitting on the left mudguard. When the tractor reached on the Tiraha, which is situated in the west of village Adaula at around 9:00 PM, all the four accused persons namely, Suresh, Wahid, Shahjad and Ram Pal alias Ram Phal came there. Suresh was holding a gun and Ram Pal was holding a tamancha (countryamde pistol) while the remaining two accused persons were holding lathies. All these four persons were known to the witnesses before hand. They recognized them in the light of the tractor of which both lights were lit. These persons got the tractor stopped and started abusing Netrapal Singh that it is he, who had got the construction of wall of their house stopped. The complainant's side were trying to pacify the accused persons. In the meantime, Gajendra Singh and Khooba of village Kasimpur, Police Station Garhi Hazrat Nagar, together with Sompal resident of village Chhichera came from the side of village Adaula. Gejendra Singh and Khooba were holding torches and had lighted them. These persons also tried to pacify the accused persons. Three accused namely Ram Pal, Shahjad and Wahid exhorted Suresh to kill and thereupon Suresh fired from his gun, which hit Netrapal Singh, who died on the spot and fell down in the tractor itself. The accused persons thereafter went away from there. They were also seen by the witnesses. After sometime, these persons also went away and Ramveer Singh and Veerpal Singh brought the dead body of the Netrapal Singh to village Chhichera on the same tractor itself. The dead body was lying in the tractor in same condition. Nobody hit the deceased by lathis. His head fell on driver's seat and leg remained on same place where he was sitting. Suresh fired on deceased from close range. The barrel was of .1, .1 ½ feet distance. It was rainy season. He got the tractor parked in front of the house of Gram Pradhan and family members surrounded the same. He scribed the written report there and went to police station in the morning. He reached there at 6:00 AM.

37. PW-4 Gajendra Singh has also supported the prosecution case, who stated that he together with Khooba and Sompal had gone to vilalge Ahrola to have a harrow from Surat Singh. In the cross-examination, he stated that the harrow, which he had gone to ask for was to be used in plough and not in tractor and that he does not possess any tractor. At about 9:00 PM, he was returning back with these persons from village Ahrola and when he reached near the Tiraha, he saw the tractor standing with its light on and on which Ramvir Singh was sitting on the driving seat, Veerpal Singh was sitting on the left mudguard and Netrapal Singh was sitting on the right mudguard. All these four accused persons were also there. Suresh was towards the right side of the tractor and was holding a gun. Ram Phal was holding a pistol and the remaining two Shahjad and Wahid were wielding lathies. He also supported the prosecution case that the accused Suresh challenged Netrapal Singh that as he stopped construction of his wall and initiated litigation, he would kill him on that day and later the remaining three accused persons namely, Shahzad, Wahid and Ram Pal alias Ram Phal exhorted Suresh to kill and it was thereafter that Suresh fired upon Netrapal Singh. Netrapal Singh was hit by the firearm and he fell down on the tractor itself and died on the spot and the accused persons went away from there towards south and east. The deceased received firearm injuries on neck and right hand. He identified all accused persons in the Court.

38. PW-8 Khooba is a witness, who previously filed an affidavit and an application, which are exhibited as Ext.Kha-1 and Kha-2 on record, in which he stated that he had not seen anything at all. He also moved an application with prayer to discharge him from appearing as a witness during trial, as he had not seen anything. However, his statement was recorded on 14.3.1983 before the Court. In the Examination-in-Chief, this witness supported the case of the prosecution and stated that he alongwith Chaudhari Gajendra Singh (PW-4) and Sompal (PW-9) had gone to village Ahrola because Gajendra Singh wanted a harrow tube installed in plough. He further stated that when all these persons were returning from Ahrola at 9:00 PM and reached near the Tiraha in the west, he found that a tractor was standing facing east with its light on and on the tractor Ramvir Singh, Netrapal Singh and Veerpal Singh were sitting while the four accused persons who were present in the Court at the time of his evidence were standing around it. Suresh was holding a gun, Ram Pal was holding a pistol and the remaining two persons were holding lathies. Someone of the accused persons opened fire which hit Netrapal Singh, who died on the spot and fell down on the tractor itself and thereafter the accused persons went away. The witness deviated from the prosecution case to the extent that he did not name Suresh as assailant, who allegedly shot a fire resulting the death of Netrapal Singh. He stated that he could not say as to who fired at Netrapal Singh. He gave an explanation of filing an affidavit before the Court together with an application to the effect that he did not see the incident. He stated that Chaudharies of Ahrola had come to his house and had threatened him that if he would give evidence, then he will also be murdered like Netrapal Singh and due to this fear, he filed the affidavit. He further stated that now the police had assured him that they will help him if some accused or his helpers would harass him. It is for this reason that now he is giving his statement out of his free will. He also stated that at the time of incident, the light of the tractor was on and he and Chaudhari Gajendra Singh were holding torches and lighted them. They recognized the persons sitting on the tractor as well as all these four accused persons on the spot together with their arms. He denied the defence suggestion that the accused persons were concealing their faces by 'dhada' (mask). In the cross-examination, he gave out the name of Faquir Chand as a person who had pressurized him to file the affidavit in favour of the accused persons. He stated that together with Faquir Chand, there were 3-4 other persons also. He also stated that during the hearing of the case, the accused persons forced him to file a false application that he did not want to give evidence because he had not seen anything. He clarified that he had simply put his thumb impression on this application and it was never read over to him. He also supported the prosecution case that only one fire was made on the spot which caused death of Netrapal Singh. His torch was seen by the Investigating Officer, who found it in working condition. However, he stated that he could not state with precision that out of Ram Pal and Suresh, who fired a shot at Netrapal Singh. The firearm shot hit Netrapal in his neck. Blood was oozed from the injuries of deceased which spread on the tractor and also fell on the ground.