1

A.F.R.

Judgement Reserved On 23.07.2019

Judgement Delivered On 22.10.2019

Court No. 46

Case :- CRIMINAL APPEAL No. - 2963 of 2009

Appellant :- Hasam And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Sushil Kumar Pandey,Abhinav

Singh,Anil Raghav,Brijesh Sahai,Nazrul Islam Jafri,Veer

Singh

Counsel for Respondent :- Govt. Advocate,Bakhtyar

Yusuf

Hon'ble Naheed Ara Moonis,J.

Hon'ble Anil Kumar-IX,J.

(Delivered by Anil Kumar-IX,J.)

This appeal has been filed against the judgment

and order dated 23.04.2009 passed by Additional

Sessions Judge Court No. 9, Muzaffarnagar in Sessions

Trial No. 405 of 2005 (State of Uttar Pradesh Vs. Hasam

and another) arising out of Case Crime No. 06 of 2005

under Section 302 Indian Penal Code (here-in-after

referred to as “I.P.C.”), Police Station- Chhapar, District-

Muzaffarnagar whereby both the appellants Hasam and

Nazam have been convicted and sentenced to

imprisonment for life with a fine of Rs. 10,000/- under

Section 302 I.P.C. with default stipulation.

The prosecution case in brief is that the informant

Mohabbat Ali has lodged F.I.R. on 16.01.2005 at 05:15

p.m. at police station- Chhapar, District- Muzaffarnagar

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alleging therein that on 16.01.2005 he along with

Haneef, Aladeen and his brother Ajaz (deceased) were

taking off peels of the sugarcane in the field of Ajaz. At

about 4:30 p.m. both the accused Hasam and Nazam

came there with Tamancha (country made pistol) in

their hands and said that Ajaz was the pairokar of civil

case pending in the court, he must not be spared alive.

Both the assailants fired with their respective weapons

on Ajaz (brother of the informant) who received fire arm

injuries on right side back and left eye and died on the

spot. The entry was made in G.D. of police station as

Report No. 24 at 17:15 hrs. on 16.01.2005 and

investigation was taken up by PW-4 Virendra Singh the

then posted as Station Officer at police station Chhapar.

After the registration of the F.I.R. at police station,

Investigating Officer proceeded to the spot with

necessary relevant papers and started investigation of

the case. He directed Sub-Inspector Prem Prakash Giri

(PW-5) to conduct the inquest of the deceased on spot.

The inquest proceeding commenced at 6:30 p.m. and

completed at 8:30 p.m. on 16.01.2005. Inquest report

is exhibit Ka-6. In the inquest report opinion was

expressed unanimously that deadbody be sent for

postmortem examination so that cause of death could

be ascertained properly. In the process certain relevant

papers were prepared by PW-5 and he has prepared

inquest report, photo nash exhibit Ka-7. Letter to R.I.

exhibit Ka-8, letter to C.M.O. exhibit Ka-9. After

conducting inquest and observing necessary formalities,

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the deadbody was entrusted to two constables Udai Veer

Singh and Harpal Singh for postmortem examination.

Thereafter postmortem examination of the

deadbody of Ajaz was conducted by Dr. Rajesh Singh

PW-3 at 2:40 p.m. on 17.01.2005 at district hospital

Muzaffarnagar. Postmortem report is exhibit Ka-2.

According to the postmortem report doctor has found

following ante-mortem injuries on the deadbody of the

deceased:-

(i) Firearm entry wound size 1.5 cm X ½ cm on left

eye-brow margins are inverted an area of blackening

07cm X 5.5 cm on left front forehead.

(ii) Exit wound- Size 2.5 cm X 1.5 cm on just below the

left mandible 2.5 cm from left ear. Margins are everted

and irregular edges. Injury no. 1 is corresponding to

injury no. 2 i.e. wound of exit. The path is

communicating from injury no. 1 to no. 2 maxillary bone

upper side fracture present.

(iii) Firearm injury size 4.5 cm X 3 cm on Rt. Side of

back of chest, 5 cm below from scapula & 16 cm from

midline (vertebral column) wound margins are inverted

and lacerated the wound is extended inner right & left

lung and to accending aorta 7

th

& 8

th

right ribs are

fractured. Pellets recovered from both lungs.

Doctor opined that the duration of death was

approximately one day old and cause of death is due to

ante-mortem firearm injuries on the vital organs.

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At the time of occurrence PW-4 Virendra Singh was

posted as Station Officer of police station Chhapar,

Muzaffarnagar. In his presence, F.I.R. of the Case Crime

No. 06/2005 under Section 302 I.P.C. was registered on

the basis of the written report of the complainant

Mohabbat Ali, brother of deceased. Investigation of the

case was taken up by PW-4 Virendra Singh. He directed

to Sub-Inspector Prem Prakash Giri PW-5 to conduct and

prepare the inquest report in dragon light and petromax.

He has recorded statement under Section 161 Cr.P.C. of

the complainant Mohabbat Ali and eye witness Haneef.

On 17.01.2005, he has recorded statement of the

witnesses of the inquest and eye witness Aladeen. He

inspected the spot on the pointing of complainant and

prepared site plan which is exhibit as Ka-3. On

22.01.2005 at 8:40 a.m. he arrested both the accused

Hasam and Nazam near the Kabristan on Basera Madak

Road. He recovered one Tamancha 315 bore and one

live cartridge from the possession of accused Hasam and

one Tamancha 12 bore, two live cartridges from the

possession of Nazam. Against Hasam and Nazam cases

were registered under the Arms Act as Case Crime No.

16 of 2005 & Case Crime No. 17 of 2005 under section

25/27 Arms Act respectively. He sent the recovered

firearms to Forensic Science Laboratory, Agra for

examination. He recorded the statement of Sub-

Inspector Prem Prakash Giri, Constable Harpal Singh

and Udaiveer Singh. After investigation he has

submitted charge-sheet against both the appellants

Hasam and Nazam in aforesaid crime no. ;6 of 2005

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under aforesaid section 302 I.P.C. Charge-sheet is

marked as exhibit Ka- 5.

In the process, case of both the accused was

committed to court of sessions where the Case Crime

No. 6 of 2005 under section 302 IPC was numbered

as Sessions Trial No. 405 of 2005. It will be proper to

mention here that separate sessions trial under Section

25 Arms Act were registered as Sessions Trial No. 672

of 2005 and Sessions Trial No. 673 of 2005 against each

of the accused person for the recovery of firearms from

them. The trial was entrusted to the court of Additional

Sessions Judge, Court No. 9 Muzaffarnagar. The trial of

cases under Section 25/27 Arms Act were also

proceeded and decided with the trial of this case

resulting into acquittal of the accused appellants from

the charfges of section 25 Arms Act.

The trial court after hearing the prosecution as well

as defence and perusing the material available on record

framed the charges against the accused-appellants

under section 302 IPC. The charges framed against

them were read over and explained to them. The

accused appellants abjured the guilt and claimed to be

tried. Thus prosecution was directed to produce all its

testimonies by which it proposes to prove guilt of the

accused person. The prosecution has examined as many

as seven witnesses, the brief sketch of these witnesses

is as here-under:-

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The prosecution had examined informant Mohabbat

Ali (P.W.1), Aladeen (P.W.2) as eye witness, Dr. Rajesh

Singh (P.W.3), S.H.O.Virendra Singh (P.W.4), Sub-

inspector Prem Prakash Giri (P.W.5) , constable Virendra

Kumar P.W 6 , Sub-inspector and Harpal Singh (P.W.7)

as formal witnesses.

After conclusion of the prosecution evidence, the

accused appellants namely Hasam and Nazam were

examined under Section 313 Cr.P.C.In their statement

they denied all the charges attributed against them and

pleaded for innocence. They stated that they have been

falsely implicated in the present case due to animosity.

They demanded opportunity to produce evidence in

defence. They produced Rishipal Singh Radio Station

Officer as D.W.1.

The prosecution in order to corroborate its

stand examined Mohabbat Ali (P.W.1) on 1.2.2006. who

is the brother of deceased and the complainant eye

witnesses of the incident . He deposed that he is well

acquainted with the accused appellants Hasam and

Nazam. The accused appellants are belonging to his

village and are his neighbours. He is also knowing to

deceased Ajaz who was his real younger brother. The

occurrence had taken place on 16.1.2005 at about 4 to

4.30 p.m. He in association with Haneef, Aladeen (PW-

2) and his brother Ajaz ( now deceased) were peeling

sugarcane in the field. At that place, the accused

persons namely Hasam and Nazam came at around 4 to

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4-30 p.m. and on reaching at that place they exposed

that Ajaz was doing the pairvi of cases in the civil court

hence today they shall not spare him. Both the accused

persons namely Hasam and Nazam were equipped with

country made pistol. They fired at Ajaz, the brother of

the complainant. The first fire hit at the right side

chest and the second fire hit on his left eye as a result

of which he succumbed to injuries on the spot.

Thereafter accused persons fled from the spot

unleashing reign of terror by extending threats and

hurling abusive and vituperative words. P.W.1 Mohabbat

Ali immediately rushed at the police chawki. It was

informed by the personnel posted at the police chowki

to get the first information report registered at the

police station. The first informant got the report written

sitting at the house by his nephew Hakim Ali. The

report was written verbatum by Hakim Ali at the dictate

of the complainant. The report was heard by him on the

recital of Hakim Ali. Thereafter the written report was

handed over at the police station concerned. P.W.1

Mohabbat Ali had identified the writing and signature of

Hakim Ali. He had seen him reading and writing. The

paper no.5 was read to P.W.1 Mohabbat Ali. He proved

that it was the same report which was got written by

Hakim Ali and was handed over at the police station

concerned. The said written report was marked as

Ext.Ka.1.

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P.W.1 Mohabbat Ali divulged that his house and the

house of accused persons are situated in the same

vicinity. Prior to 5 to 6 months of the incident, there was

rift between the complainant and the accused persons

on the issue of exit of water. The said issue was pacified

on the intervention of some dignified persons of the

locality. He had acquiesced proposal put forth by the

persons of the locality and was satisfied but the accused

persons were nurturing animus and grudge against him.

On account of former animosity, the accused persons

namely Hasam and Nazam had done to death his

brother Ajaz by firing upon him.

In cross examination he unravelled that

Hakim Ali is practicing in civil court at Muzaffrar Nagar

who is standing behind him. The sun had set on after

one hour of the incident. The police personnel had come

at the spot after enshrouding of sun. He could not

ascertain as to whether the police personnel who came

on the spot were hailing to Basere or Chhapar. When

the P.W.1 Mohabbat Ali reached at the police station

concerned, the Station Officer were present there. He

informed to the Station Officer concerned that such an

occurrence had taken place in which his brother was

done to death with firing. He stayed at the police station

concerned about 15-20 minutes. His nephew Hakim Ali

was also associated with him. P.W.1 Mohabbat Ali

proceeded from the police station firstly and the police

personnel departed from the police station concerned

later on. He reached at the place of occurrence with

police personnel. When the complainant and other

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persons reached at the place of occurrence, the sky was

darkened but it was not night. The person standing at

a distance of 20 yards was visible. No higher officer of

the police had reached at the place of occurrence in his

presence. At the place of occurrence there were three

police officer and the rest were police personnel. He

could not ascertain who was the Station Officer, who

was the Circle Officer and who was the Senior

Superintendent of Police. It is wrong to say that he was

not present on the spot and had not seen the incident.

He has also stated position of Ajaz (deceased) and the

witnesses on spot at the time of incident. He could not

divulge the duration of stay of police personnel whether

they stayed two hours, or four hours or six hours. He

proved his presence at the place of occurrence.

The P.W. 1 Mohabbat Ali was further cross

examined on 23.3.2006. He deposed that the corpse of

Ajaz had reached at Muzaffar Nagar mortuary on

16.1.2005 at about 11.00 P.M. The complainant in

association with Hakim Ali (Advocate), Haneef Aladeen

and other persons reached at the mortuary with the

corpse of Ajaz. Two to four persons remained present

with the dead body of Ajaz. Rest of the persons returned

to village. The persons staying at the mortuary with

corpse were Shaukeen and Kayyum. The persons

associated with the corpse of Ajaz from the place of

occurrence to morturary were Mohd. Azad s/o Fazal,

Nawab s/o Idreesh, Firoz uddin s/o Shamiuddin,

Tanamjeem s/o Aswar Ali and Shaukat s/o Ghaseeta.

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The corpse of deceased Ajaz was brought at the

mortuary in Tempo. Ambassador car was also used by

other persons in coming at the mortuary. The dead body

of Ajaz was escorted by two police personnel. The

station officer concerned directed them to reach at the

mortuary on the assurance that he will reach very soon.

The Station Officer concerned had reached at the

mortuary within 30 to 45 minutes. The Station Officer

concerned was at Chhapar police station. One constable

had come with the station officer concerned. The P.W.1

Mohabbat Ali did not recollect how long the Station

Officer concerned stayed at the mortuary because he

was coming back to his village leaving the corpse of

Ajaz. Hakim Ali (Advocate) stayed at the village. There

was no light at the mortuary. He had also not gone

inside the room. It was not within his knowledge as to

whether there was electric or not. The person standing

there had opened the lock. Next day, he had reached at

the mortuary at about 7 'o' clock. When the P.W.1

Mohabbat Ali reached at the mortuary, the police

personnel from Chhapar had come there. The station

officer concerned in association with two or three police

personnel came there at about 9 'O' clock. The police

personnel stayed there approximately three or four

hours. Two police personnel who had gone with him

(P.W.1 Mohabbat Ali) remained there three or four

hours. He was not aware about any interrogation made

by the Station Officer concerned at the mortuary. The

Station Officer concerned was making confabulation with

the persons standing there. The station officer present

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at the mortuary was seen at the place of occurrence.

He had seen the station officer concerned making

discourse with Mohd. Ajad, Nawab, Firoz Uddin ,

Tanjeem , Shaukat Ali. These five persons had reached

at the mortuary with him in the morning. The station

officer concerned had seen the corpse of Ajaz at the

mortuary. The signature on the Panchayatnama was

obtained at the mortuary. The signature of witnesses

namely Mohd. Azad s/o Fazla, Nawab s/o Idrish,

Firozuddin s/o Shamimuddin, Tanjeem s/o Akhtar Ali

,Shaukat Ali s/o Ghasita was obtained at the house

situate at Basera. The dead body of Ajaz was lying in

the house at the moment of Panchayatnama. His house

was existing on the road running from Varla to Basera

towards north side. His house was adjoining to the road.

Ajaz (deceased) was living in that house. The house of

accused Hasam and Nazam was situated at a distance

of 500 metres from his house. It was also divulged by

him that there was demarcative wall in between these

houses. It is wrong to say that his house as well as the

house of Hasam and Nazam would not have been

existing side by side.

The field where the occurrence took place is

situated towards north side on the road running from

Barla Basera . The field which is the place of occurrence

is existing at a distance of ½ kilometre on the road

running from Khai Kheri. The chak road was carved out

towards west from the path running from Khai Kheri. His

chak was existing in front of the chak of Faiyaz running

from the Chak road. Running from the path of Khai

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Khera at a distance of 90 metres towards west , his

chak was existing. To reach at the chak, he had to

proceed towards south from the chak road. The field of

occurrence would have been about seven bighas. The

crops of sugar cane was existing in that field. There

were crops of sugar cane around the field of occurrence.

The height of the sugar cane was more than the height

of the men. The harvesting of the sugar cane was not

continuing in the adjacent field. In the adjoining of his

field, there was field of Nawab s/o Gafoor towards west,

field of Faiyaz s/o Raham Ilahi towards east, field of Lal

Fakeer Chand no member of their family were present

there at the moment of occurrence. The complainant

(P.W.1) was peeling off sugar cane at his field at about

10.00 a.m. and Ajaz as well as both the witnesses were

also peeling off sugar cane. The complainant was having

the peeling equipment i.e. Palkati and Daranti. Bogi

(cart) was standing in the field. They were peeling off

sugar cane from 10.00 a.m. to 4.00 p.m. In the

intervening period, they used to suck juice from the

sugar cane. The complainant and three others had

peeled off till the crucial moment of occurrence about 7

to 8 bundles. The peelings of the sugar cane were

scattered. The trunks of peeled cane were being loaded

on the Bogi (cart). The complainant had not met with

the accused Hasam and Nazam in the morning while

going to his sugar cane field. The accused appellants

had no field adjacent to the spot of occurrence. The

witnesses namely Haneef and Aladeen had also no field

in the adjacent to the field of occurrence. They used to

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go near the place of occurrence for peeling off the

sugar cane. The deceased (Ajaz) had worn shirt, pant,

sweater. Socks etc. at the moment of occurrence. The

cloth put on his head was removed. At the moment of

occurrence, the complainant was handing over peeled

trunk of sugar cane to Ajaz. The Bogi was leashed with

bullock. Ajaz (deceased) was standing on the Bogi (cart)

at the moment of occurrence. Ten to twenty bundles of

peeled sugar cane were loaded on the cart. Ajaz

(deceased) was adjusting to those bundles. The mouth

of the bullock was towards west. Ajaz at the moment of

occurrence was towards east at the back of cart.. The

miscreants did not search to Ajaz rather he was visible

from the front side on the Bogi (cart). The miscreants

had appeared from the sugar cane field of Nawab

towards the western side. No quarrel had taken place

prior to this incident. Both the malfactors remained

down to the Bogi (cart). The complainant was standing

towards east of the Bogi (cart). Ajaz (deceased) was

standing at the height of 3 or 4 feet from the ground.

Ajaz (deceased) was sitting at the moment of

occurrence and his face was towards east. The

malfactors fired upon him from the direction of south.

Ajaz (deceased) could not get time to flee from the

place of occurrence. The accused persons were

standing in contiguous of the Bogi (cart). The

malfactors had fired without stretching their elbow.

There was altitude of about one foot between the

accused persons and the deceased (Ajaz) meaning

thereby deceased (Ajaz) was standing at the height of

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about one foot from the accused persons. The

complainant had raised shrieks and shrill at the moment

of occurrence but nobody had come. The malfactors did

not fire upon any other person except Ajaz. The accused

persons had opened only two round of firing at the

place of occurrence. The weapon by which the

miscreants were equipped, one of them was 315 bore .

He had not seen that weapon earlier. On being

interrogated by the people, it was divulged by him that

one weapon was of thin barrel and the another was of

thick barrel. During the course of confabulation, people

informed him that it is called Katta (country made

pistol. On being wounded, Ajaz had fallen down from the

cart. The peeled trunks of sugar cane were also

saturated with blood. Blood was also fallen down. The

deceased (Ajaz) had fallen towards north from the Bogi

(cart). After executing the incident, the accused persons

had run away from the place of occurrence. The

complainant had observed the condition of Ajaz by

touching his body. The condition of deceased (Ajaz) was

highly precarious even he was neither inhaling nor

exhaling. There was no stain of blood on the cloth of

compl;ainant nor Haneef and Aladeen. The place where

Ajaz had fallen down, was saturated with profuse blood.

After receiving firearm injury, he observed Ajaz where

he had sustained injuries. Skull bone was not fractured.

The left eye of the deceased (Ajaz) had come out on

account of injuries. The next injury was caused in the

right side of abdomen. The complainant did not pay

heed on the size of wounds. He had seen only two

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injuries on the person of the deceased. When the police

personnel came on the spot, they did not allow anybody

to touch the body of the deceased. When the police

personnel touched the body of the deceased (Ajaz), the

complainant was present on the spot. When the police

personnel touched the body of the deceased (Ajaz), at

that moment there were only two injuries on his person.

The complainant did not take notice as to whether the

blood was exuding from the body of the deceased (Ajaz)

or not. One eye had come out and the other eye was

partially opened. The deceased (Ajaz) was not lying flat.

The police personnel after examining the condition of

the deceased (Ajaz) took the corpse into possession. At

that moment, there was gathering of about hundred

persons hailing to that village. The village personnel did

not resist when the police personnel were taking the

corpse of deceased Ajaz. The Geep of police personnel

was standing in the nearby place at the chakroad. The

police personnels were having torches. There was no

arrangement of light. The police personnel told at the

police chawki that they shall raid at the house of the

assailants namely Hasam and Nazam and will arrest

them. Since the complainant was unconscious, he could

not give correct information whether the police

personnel had taken any assistance of his men in raiding

at the house of assailants. He regained consciousness

on the next day and the next day, he had gone with the

deceased (Ajaz). The complainant was highly flustered

and nonplussed. Hakim Ali, Advocate had reached at

the place of incident after the occurrence. It was further

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averred that Hakim Ali reached at the place of

occurrence after lodging of the first information report.

The complainant had seen Hakim Ali (Advocate) at the

place of occurrence at about 5 to 5.45 p.m. There was

no Advocate hailing to Muzaffar Nagar with him. He

had gone at the police station concerned with Hakim Ali

Advocate. The Station Officer concerned had reached at

the place of occurrence just behind him. The police

personnel had reached at the place of occurrence prior

to that. No person belonging to the family of accused

Hasam and Nazam was present at the place of

occurrence.

After the incident, the station officer concerned had

interrogated him at the place of occurrence. He could

not recollect as to whether the statement recorded by

the Station Officer concerned was noted down or not.

The complainant got the spot inspection done by the

station officer concerned next day at about 11.00 a.m.

On the same day, he showed the Bogi standing at the

place of occurrence and the blood saturated trunks of

sugar cane. Those trunks of Sugar Cane were lying at

the beneath of Bogi (cart) . He could not ascertain as to

whether the Station Officer concerned had taken away

the same with him or not. The blood saturated soil and

plain soil were collected on the next day. The place of

occurrence was pointed to the Station Officer concerned

from where the accused persons had fired upon Ajaz.

The particular place was pointed to the Station Officer

concerned from where the deceased (Ajaz) was sitting

at the crucial moment of firing. He had shown the

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bundles of sugar cane lying on the spot. It was pointed

out by him that he was peeling off sugar cane towards

east of Bogi (cart). He has pointed to the Station Officer

concerned with regard to holding of trunks of sugar

cane. In case this has not been recorded by the Station

Officer concerned, he had no reason. It was divulged by

him that the accused persons fled from the place of

occurrence hurling abusive and vituperative words. In

case it has not been recorded by him,he could not put

forth any reason. It was also brought in the notice of the

Station Officer concerned that he had gone at the police

station concerned that he had gone at the police chowki.

The police personnel posted at the Chowki directed to

him to go at the police station concerned to get the FIR

registered. This fact was divulged by him to the Station

Officer concerned. In case this fact was not recorded in

the report or investigation, he could not put forth any

reason for it. This fact was also unfolded by him that his

house was situated in the contiguous of the assailants

and the querrel ensued between them on the issue of

exit of water prior to six months of the incident. This

quarrelsome issue was settled by the intervention of

some dignified persons of the locality but the assailants

had been nurturing animus and grudge against the

deceased (Ajaz) and his family members and in

consequence of retaliation, the accused appellants had

executed the said offence liquidating the deceased

(Ajaz). In case this fact has not been incorporated in the

first information report, I have no reason to say

anything.

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Further it was divulged by the P.W.1 (Mohabbat Ali)

in his cross examination recorded on 31.3.2006 that he

had no idea on how many papers were got signed

from him. He had also no idea that ten papers were got

signed from him or it was twelve in numbers. At the

moment,the station officer concerned got his signature

on the papers, Hakim Ali was also present there. The

report which was got registered by him was duly signed

by him at the police station concerned. The papers on

which his signatures were obtained , he does not have

any knowledge what were those papers. It was neither

asked by him what were those papers.The station

officer concerned did not make any confabulation at the

police station with Hakim Ali before him. When he was

at the police station concerned, he had unfolded entire

incident to the Station Officer concerned.

The police station was not existing on the

Highway of Delhi-Dehradun. It was existing towards

western side from the road at the distance of one and

one and half furlong. When he reached at the police

station concerned, the sun was rising. When he returned

from the police station concerned, the day was nearly

over. The police station concerned was situated at the

distance of 10 to 12 kilometre from his village. It was

not situated at the distance of twenty kilometres.

He had shown the incriminating articles i.e. Palkati

and Darati lying at the spot to the Station Officer

concerned. His witnesses namely Haneef and Aladeen

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were tightening bundles on the spot. Someone were

tightening trunks of sugar cane. Ajaz was sitting on the

spot lowering his neck below therefore, Ajaz (deceased)

could not flee from the spot. Fire was done from the

countrymade pistol. The pistol was only one barrel and

not have two barrels. The country made pistol was not

further loaded. The complainant did not make attempt

to apprehend the accused persons after firing. The

incriminating articles i.e. Palkati or Daranti were not

lifted by him. The complainant was highly terrified and

frightened. After harvesting the sugar cane, only roots

(Khobey) were left. Khobey means the root of the sugar

cane. The deceased Ajaz might have fallen in the mid

of the roots. A Kolhoo was installed near the place of

incident. for crushing the sugar cane. The Kolhoo was

lying unused. There were two brick kilns between the

road and the place of occurrence but at the moment of

the incident, there was no person preparing the rough

bricks. The brick kiln was also closed. From the place of

occurrence towards east, the brick kiln was adjoining

with the field of Faiyaz but no body was present there.

After execution of the incident, the complainant

remained there about 2 to 3 minutes thereafter the

complainant and the witnesses rushed towards the

village. On arriving at the road, he divulged that Ajaz

had been hit with shot. He did not make any

arrangement of vehicle for reaching at the road. He did

not come across to any person in the interregnum

period. There were about fifty shops at the stall. On

reaching at the stall and divulging about the murder of

20

Ajaz, a number of persons gathered. The complainant

had not gone at the place of occurrence again. He did

not have knowledge who were present at the place of

occurrence after his departure. This fact was unfolded

by the complainant on reaching at his house that his

brother Ajaz had been hit with shot. Haneef and Aladeen

also unravelled that he was hit with shot. The civil suit

which was pending prior to the incident was concerning

with Bhondoo s/o Varoo. In that suit, Bhondoo was not

doing pairvi but Ajaz (deceased) was doing pairvi. The

house of Bhondoo was situated towards east from the

house of Hamid and Majid. The complainant was not

aware against whom Bhondoo had instituted the suit.

The suit was instituted in the civil court prior to 5 to 6

months . The said suit is still pending. The complainant

was not doing any pairvi with regard to the suit pending

in civil court. Some quarrel and ruckus had taken place

between the assailants and the deceased (Ajaz) with

respect to the suit pending in the civil court. The

uprorious scene developed between the assailants and

the deceased (Ajaz) and others were informed to the

police station concerned. The matter was pacified on the

intervention of the police.

He deposed that earlier dispute had taken place

from the side of the complainant and the assailants.

The police personnel had intervened to alleviate. At the

crucial time of incident, the deceased (Ajaz) was

running the shop of fertilizers at the stall. The deceased

(Ajaz) was not doing the transanction of money lending.

21

The deceased (Ajaz) did not have any cart or taxi for

plying on rent. It was divulged that he was possessing

Ambassador car for his own pleasant.

It was disowned by the complainant that the

deceased (Ajaz) used to have cart and taxi both and

those were used to ply on rent. It is wrong to say that

the driver of the cart was done to death and the pairvi

was being done by Ajaz ( deceased) in that case. His

brother Ajaz was constantly being threatened by the

assailants. It is wrong to say that his brother was done

to death by some strangers. It is also wrong to say that

on account of pendency of civil suit, the first information

report has been lodged against the accused appellants

after much deliberation and consultation after undue

delay. It is wrong to say that Hakim Ali Advocate was

called from Muzaffar Nagar so as to get the first

information report registered. At the moment of

execution of the incident, Hakim Ali Advocate used to

live at the back of District Hospital. He confirmed that

his brother Ajaz was done to death before him. He

disowned that he was giving his testimony against the

accused appellants on account of animosity.

The prosecution has examined Aladeen as P.W.2 on

29.5.2006. He affirmed on oath that he is knowing well

to Hasam and Nazam who are belonging to his village.

The incident has taken place on 16

th

January 2005 at

about 4 to 4.30 p.m. Mohabbat Ali (complainant P.W.1),

Haneef and Ajaz peeling sugar cane with him in the

field of Ajaz. The accused persons namely Hasam and

22

Nazam came who were equipped with pistols. Nazam

told to another accused that Ajaz is doing pairvi against

him in the civil suit. He will not be spared alive today.

Nazam fired from his pistol pointing towards Ajaz which

hit at the right side under the arm of Ajaz. Second fire

was made by Hasam pointing towards Ajaz which hit at

his right eye. The victim (Ajaz) succumbed to injuries on

the spot as a result of shot sustained by him.

There was a civil suit pending between the

perpetrators of the crime and Ajaz on the issue of drain

on account of which assailants were rearing and

nurturing animus and grudge. Ajaz has been decimated

on account of these bitterness.

The P.W.2 Aladeen was cross examined. He

divulged that when both the assailants had fired to the

victim Ajaz then the malfactors were standing on the

ground and the victim Ajaz was standing on the cart. It

was divulged by him that shots were made from short

distance. He remained present on the spot after the

time of incident till the arrival of the police. He had seen

to Hakim Ali Advocate at 4.30 p.m-5.00 p.m. Hakim Ali

Advocate had done the work of writing at the home. He

was not aware as to whether the police personnel who

came at the spot was hailing to Chhapar or Basera. The

police personnel had arrived on the spot just after the

incident at about 4.30 p.m. to 5.00 p.m. He proved his

presence on the spot at the time of occurrence.

23

The cross examination of P.W.2 Aladeen was

resumed on 7.7.2006. He deposed that he had no field

adjacent to the place of occurrence. He had gone for

peeling of sugar cane on the day of the occurrence. It

had come to his notice that the work of peeling was

going on in the field of deceased (Ajaz). The field of

occurrence was situated from the main path of Basera

Varla towards north side about one kilometre away . It

is correct to say that the altitude of the field was about

one or one and half feet from the height of men. No

work of peeling was going on in any field except in the

field of Ajaz (deceased). The field in which the working

of peeling was going on was measuring to about seven

bighas. The work of peeling was going on in that field

prior to one or two days of the incident . On the fateful

day of incident, about 5 to 4 biswa sugar cane was

peeled off. Prior to it, more than 1'1/2 bigha sugar cane

was peeled off. The peeling of the sugar cane in that

field was not done in entire north -south side but in

some portion of north-south direction. The peeling work

was done from the western side. The sugar cane of Haji

was situated towards western side. In the north side,

the field of Mohabbat Ali (P.W.1) was situated. In the

southern side, the field of Fakir Chand was situated. In

the eastern side, the field of Haji Faiyaz was existing.

They began the work of peeling from 9 to 10 'O' clock

from morning. When they reached at the field, the

labourer who were engaged in the work of peeling were

standing equipped with their Palkati and Daranti. In the

intervening period, he did not take any meal as he

24

proceeds after takine meal rather he had taken juice of

sugar cane as well as water between 10 a.m. to 4.30

p.m. The cart was standing towards western side of the

field. At the crucial moment of the incident, the

deceased Ajaz real brother of Mohabbat Ali (P.W.1) was

standing at the distance of 10 paces towards the hill.

When the incident took place, P.W.2 Aladeen had gone

for trunks of the sugar cane. He was standing towards

western side from the cart at a distance of 20 paces.

The station officer concerned did not make any

interrogation with respect to the said incident from him.

His statement was recorded next day of the incident.

He had not gone for the spot inspection done by the

station officer concerned. This fact was brought to the

notice of the Station Officer concerned that at the

crucial moment of execution of incident, he was peeling

sugar cane. Haneef was also present beside him This

fact was divulged by him that the accused Nazam was

saying that Ajaz (deceased) was doing pairvi in the

case pending in civil court, . In case this fact has not

been reduced in writing by the Station Officer

concerned, he could not put forth any reason for it. This

fact was not unfolded by him that as soon as Nazam

came, he said that since deceased (Ajaz) is pairokar in

the matter pending in the civil court hence he will not

spare him. The first shot hit in the right side under

arm of Ajaz as a consequence of which he toppled on

the ground When the malfactors hit shots ,they were

standing in the western side of the cart. The second

25

shot was fired by Hasam pointing towards Ajaz

(deceased) on his eye from close range, when he fell

down. When the shots were fired by the Nazam ,the

deceased Ajaz was lying on the corner of north-west

from the cart. Hasam reached near Ajaz and had fired.

The blood of deceased Ajaz was lying on the cart. The

trunks of sugar cane were also soaked with blood. The

place where deceased Ajaz was lying was saturated with

blood. Hasam had caused gun shot injury to deceased

Ajaz at the distance of 2-3 paces. He had not seen any

injury on the person of Ajaz (deceased) except two

injuries. Only two firing was done at the spot. The

assailants had unleashed reign of terror and horror as a

result of which they could not muster courage to follow

them or to come forward to pursue them. This fact was

brought in the notice of the station officer concerned in

case it has not been reduced in writing, he could not put

forward any reason. Ajaz succumbed to injuries on the

spot as a result of sustaining shots of fire. He did not

raise any scream on the spot. In the adjoining of the

sugar cane field, the labourer working in the brick kiln

came on the spot. Amongst the persons present on the

spot were Ghasetoo Julaha and Gafoor Julaha belonging

to his village. He was not aware about their parentage.

Besides them, five to seven persons came on the spot.

Mohabbat Ali (P.W.1) had departed from the place of

occurrence till those persons arrived on the spot. The

persons standing on the spot were curious of knowing

reason from him. In the meantime two police constables

came on the spot and a number of persons gathered on

26

the spot. He had not seen to Mohabbat Ali thereafter on

the place of occurrence. Whatever was narrated by him

previously that he remained present before the police

personnel was correct description. Thereafter the police

personnel had brought the corpse of Ajaz at the police

chawki picking up from the place of occurrence. Till then

five to seven police personnel had come at the spot.

The police personnel had brought the corpse of Ajaz

from the place of occurrence from 7 to 7.30 p.m. Hakim

Ali Advocate was present with the police personnel at

that moment. The ladies belonging to his family had

also gathered at the police chawki. He could not say

with regard to distance of house of Mohabbat Ali (P.W.1)

from police chawki. The corpse of deceased Ajaz was

kept at the police station concerned about 20 to 25

minutes.

He had seen to Mohd. Azad s/o Fajla and Tanjeem

Ali s/o Akhtar Ali on the spot. They had also

accompanied with the dead body of Ajaz to the police

station. He had gone with the corpse at the mortuary

Muzaffar Nagar from the police chawki and came along

with the dead body in the evening at 8.00 p.m. The

dead body of Ajaz was associated with one Sub-

inspector and constable. At that moment, at the

mortuary, Mohd. Ajad s/o Fazla , Nawab s/o Idrish ,

Firozuddin s/o Shakiuddin , Tanjeem Ali s/o Akhtar Ali,

Shaukat Ali s/o Ghaseeta were present. The Station

Officer had seen the corpse of Ajaz at the mortuary. At

that moment aforementioned persons were present. He

27

was not aware what formalities were conducted by the

Station Officer concerned at the mortuary. The station

officer concerned stayed at that moment about 10 to 20

minutes who departed from the mortuary leaving two

police constables. He could not give any detail as to

whether next day the Station Officer concerned came at

the mortuary or not. When he (P.W.2) departed from

the mortuary, Hakim Ali Advocate and Mohabbat Ali

(P.W.1) were present there,. He could not give detail

about the duration of their stay. The station officer

concerned did not take his signature at mortuary. He

could not give any detail as to whether the station

officer concerned got any material written by Mohabbat

Ali or not. He came across with Mohabbat Ali at about

12. 00 to 1 “O' clock next day ,then Mohabbat Ali

informed him that he has got report registered against

Hasam and Nazam s/o Malkhoo. Mohabbat Ali (P.W.1)

departed from him after giving this information. The

miscreants were not arrested by the police personnel.

The miscreants surrendered themselves at the police

station Mopa after several days, then they were sent at

Chhapar police station. He (P.W.2 Aladeen) is an

illiterate person. He could not disclose properly about

the post of police personnel who came on the spot. A

number of police personnel came on the spot.

He supported the prosecution case. He proved his

presence at the place of occurrence. He disowned that

he had not seen the occurrence and given false

testimony against the accused on account of village

28

factionalism. He also proved the place of occurrence.

The prosecution has examined Dr. Rajesh Singh as

P.W.3 on 17.10.2006. He stated on oath that he was

posted as Child Speciallist at District Hoispital Muzaffar

Nagar on 17.1.2005. He had examined the corpse of

Ajaz s/o Gafoor brought by constable C.P.1255 Harpal

Singh and Constable CP 906 Udaiveer Singh , Police

Station Chhapar District Muzaffar Nagar. He had found

the seal intact affixed on the dead body of Ajaz. The

post-mortem of deceased Ajaz was done by him on

17.1.2005 at about 2.40 p.m. The age of the deceased

Ajaz was approximately 40 years. He was a man of

average built. During the course of autopsy, he found

that right eye and mouth were opened. Left eye was

pressed and sunk. Rigor mortis was present in all four

limbs. In the internal examination, he found that seven

and eight ribs were fractured. Pleura was lacerated. Left

and right lungs were lacerated. Pericardium was normal.

Both chambers were empty weighing to 250 grams

ascending aorta ruptured. Thorax cavity containing 2500

ml blood clotted below chest. The injuries found on the

person of deceased Ajaz have already been discussed in

the preceding paragraph.

The papers were brought by the constable with

dead body of Ajaz. The injuries found on the person of

the deceased was about one day old. The death of Ajaz

had occurred on account of fire arm injuries. The death

of Ajaz was opined to have been caused at 4.30 p.m.

on 16.1.2005. The post mortem report was prepared

29

after making meticulous examination. The post mortem

report was duly proved by him which was marked as

Ext.Ka.2. He had handed over to the constables in

sealed cover one sweater, one joursey, one shirt, one

vest, one under wear, one pant, one pair sock, 18

pellets removed from the dead body, one plastic wad,

one wad piece made from card board. He had also got

their signatures in respect to this.

He further divulged in his cross examination that

the post mortem number is allotted from the District

Hospital. The number of post mortem was allotted on

17.1.2005 at about 11.50 a.m.with the seal of District

Hospital Muzaffar Nagar which is paper no.6/7. On this

paper of District Hospital it was marked as Ext.Kha.1.

The distance from District Hospital to post mortem

house is about 3 to 5 kilometres. He proved that on

17.1.2005 from the concerned constables these papers

were obtained at about 2.30 p.m.

The corpse takes two to three hours in starting

rigor mortis in the month of January. The rigor mortis

disseminates in the entire body withiin twelve hours.

Ascending aorta denotes the blood oozing from the

ventricles. In case the blood exudes profusely from

ascending aorta, it cannot be determined by looking to

the injuries that the victim had succumbed to injuries

forthwith or sometime later. It is correct to say that

injury no.1 has been shown towards downward. The said

injury has been caused from a distance of three feet. No

external material has been recovered from the injury

30

no.1. There was no blackening in injury no.3. Injury

no.3 was caused from more than 6 feet below to 5 cm

from scapula. Injury no.3 has clearly been shown in the

post mortem report. Vertebral column remained intact.

Left and right lungs were lacerated. Notice being had to

the injury no.3 ,it can be said that the assailant was

standing towards right side. The approximate time

shown in the post mortem report is probably correct.

There will not be variation of two to four or six hours.

The assessment of death is made on the basis of rigor

mortis present on the body. Rigor mortis can

disseminate within 12 hours and can exist next 22

hours. The stomach of the deceased Ajaz was empty.

According to the post mortem examination, injury was

caused on the vital part of the body with fire arm. It is

correct to say that the word “shock haemmorhage ' has

not been used but the inference can be drawn that the

injuries were caused on the vital part with the shooting

of fire arms. There is no mention of tearing of clothes in

the post mortem report. Whatever papers were brought

during the course of post mortem were thoroughly

examined and then a conclusion is drawn. He does not

express distinct opinion on account of being any

variation in the police report. He notes down the

elements found during the course of post mortem.

During the course of post mortem, gall bladder was not

found, it may be on account of operation of stone and

gall bladder was removed. Bladder was found empty.

31

The prosecution has examined Station Officer

Virendra Singh posted at Purkaji District Muzaffar Nagar

on 17.10.2006. He stated on oath that he was posted

on 16.1.2005 at police Station Chhapar in the cap;acity

of Station Officer. On that very date in his presence,

Mohabbat Ali (P.W.1) got a report registered against

Hasam and Nazar vide Case Crime No. 6 of 2005 under

section 302 IPC. He proceeded from the police station

concerned having requisite papers i.e. chick FIR,

inquest in association with Prem Prakash Giri (Sub-

inspector) and Constable Ishwar Chand (HCP), Anek

Singh HCP on police geep driver Rajpal. On the place of

occurrence HCP Asarpal, Constable Udaiveer Singh,

Constable Satyapal , Constable Harpal of Chawki Basera

were present at the place of incident. On reaching at

the spot, S.I. Sri Giri was instructed to make

arrangement of dragon light or petromax for carrying

out the Panchayatnama of deceased Ajaz. The

statement of Mohabbat Ali (P.W.1) was recorded on the

spot. The statement of eye witness Haneef was recorded

on the place of occurrence. Sri Prem Prakash Giri (S.I.)

collected the plain and blood stained soil from the place

of occurrence in two distinct containers of which fard

was prepared and was noted in the case diary.

Thereafter the police team raided at the house of the

assailants but they were not arrested. He (P.W.4 Station

Officer) and police personnel stayed at the police

chawki Basera in the night.

32

Next day, on 17.1.2005 the Panchayatnama was

copied. The statement of the witnesses of

Panchayatnam was recorded. The statement of ocular

witness Aladeen was also recorded. He made spot

inspection in association with complainant Mohabbat Ali

(P.W.1) and prepared the site plan which was duly

marked as paper no.2 and the same was proved by

him. This document was marked as Ext.Ka.3. On

22.1.2005, the police personnel raided at the house of

assailants but they could not be arrested. Both the

accused persons namely Hasam and Nazam were

arrested by him and HCP Asarpal at about 8.40 a.m. on

the Madak road near the burial ground on the tip off of

spy of police .The police team recovered 315 bore pistol

with a cartridge and 12 bore pistol with two cartridges.

No public witness has come forward prior to arrest of

the accused persons. The police team had searched to

others but no incriminating articles were recovered from

their possession. Both the pistols were fit for firing. Both

the accused could not show licence for keeping the

pistol and cartidges. Both the pistols and cartidges were

sealed in different bundles giving clear nomenclature.

The fard was duly prepared and the signature of the

witnesses was obtained. The copy of the Fard was given

to the accused persons and their thumb impression and

signatures were obtained. The fard was duly proved by

the P.W.4 Virendra Singh which was exhibited Ka.4. A

bundle duly sealed was uncovered before the court from

which 315 bore pistol and a live cartridge was taken out.

On seeing that pistol and cartridge, the witness told that

33

the said pistol and cartridge were recovered from

Hasam. The pistol, cartridge and clothes were marked

as Ext. 1,2 & 3. The next bundle was opened before the

court from which a 12 bore pistol with two cartidges

were taken out. On seeing to that, the witness (P.W.4)

told that the said pistol and cartridges were recovered

from accused Nazam. The pistol was maked as

Ext.Ka.4 and the live cartidges were marked as Ext. 5 &

6. The bundle of these articles was marked as Ext.Ka.7.

The statement of the accused Hasam and Nazam was

recorded on the spot. The accused were brought at the

police station and the case was registered.The case

crime No.16 of 2005 under section 25 Arms Act Act

registered against Hasam and the case no. 17 of 2005

under section 25 Arms Act was registered against

Nazam. On 29.1.2005 the post mortem report of

deceased Ajaz was received which was duly noted in the

case diary. The recovered articles were sent to Forensic

Laboratory Agra on 2.2.2005 through constable 790

Sumer Singh. On 3.2.2005 the statement of S.I. Prem

Prakash Giri, Constable Harpal Singh and Constable

Udaiveer Singh was recorded. On 5.2.2005 after

collecting clinching and credible evidence, charge sheet

no. 7 of 2005 was submitted against Hasam and Nazam

which was duly signed and prepared by him. The said

charge sheet was marked as Ext.Ka.5. On 6.2.2005,

the statement of scribe of the FIR constable/clerk 1035

Virendra Pawar was recorded. On 24.9.2005, the report

received from the Forensic Laboratory was sent to the

court concerned.

34

The prosecution witness no.4 Virendra Singh

Station Officer was cross-examined by the accused

counsel. During cross examination, he deposed that the

investigating officer uses one case diary in a case. It

was divulged by him that from 16.1.2005 to 22.1.2005

he had conducted the investigation of this case. He had

other investigations also. In the parcha of 22

nd

January,

the Chief Judicial Magistrate concerned had examined

from 22

nd

January 2005. It is correct that the parcha of

17

th

February 2005, the Chief Judicial Magistrate had

examined and dated as 4

th

February 2005.The parcha of

22

nd

January had ended in zig zag manner. There is no

mention of starting and ending of investigation in any

parcha. He had not unfolded the name of the eye

witnesses in the return G.D.to whom he had examined

during investigation. He had not made any copy in the

case diary with regard to weapon recovered from the

accused persons. It is wrong to say that he had

prepared the entire case diary anti-dated and anti-time.

P.W.4 Viredra Singh was messed up with regard to

information given to him with regard to this murder.

The case was registered in his presence. No information

was conveyed from police station Chhapar through

wireless set that Ajaz (deceased) was loading trunks of

sugar cane and the assailants had done to his death. It

is wrong to say that the information with regard to the

murder of Ajaz (deceased) was received in police station

Chhapar prior to 5.15 p.m. He had rested at the police

chawki in the night after arriving at the spot. He could

not recollect as to whether any police officer had

35

reached at the spot or not. In case during investigation,

the circle officer concerned come and gives some

directions, it is not necessary to incorporate the same in

the case diary as there is no such rule. He (P.W.4

Virendra Singh) had reached at the spot at about 6.30

p.m. and got prepared the Panchayatnama in about two

hours. He admitted that on the Panchayatnama and

other related documents, he had not put his signature.

He proved his presence at the moment of preparation of

Panchayatnama but could not show as to why he had

not put his signature. The light of dragon light was very

intensive and radical. In the said light, the work of

preparation of Panchayatnama and other things could

be done easily. He could not ascertain as to whether

Prem Prakash S.I. had taken blood saturated soil and

plain soil prior to preparation of Panchayatnama but he

admitted that he had not put his signature. The corpse

of Ajaz (deceased) was sent after 8.30 p.m. but he

could not divulge exact time. The receiving of papers of

the dead body are to be submitted in the police line.

The dead body was sent with Tempo. The papers

relating to the dead body of Ajaz were entered in the

police line on 17.1.2005 at 8.00 a.m.

The spot inspection was made by him before

afternoon on 17.1.2005 but he could not unravel exact

time. In exhibit Ka.3 at no point it has been displayed

that the blood was lying on the particular place. The

place of occurrence was encircled with sugar cane crops

from three side. The place of occurrence Basera-Barwa

36

is existing at half furlong from the main road. He could

not ascertain the correct direction. It is wrong to say

that he did not have knowledge of correct direction

because the site plan was prepared at the police

station. It is correct that in Ext.Ka.3 he had mentioned

about the directions. He could also not recollect as to

whether there is other ways to arrive at the place of

occurrence. He (P.W.4 Virendra Singh) had seen peeled

sugar cane and trunk of sugar cane at the spot but he

had not noted in the case diary as to whether these

articles were soaked with blood. There is no mention in

the case diary with regard to Daranti or Palkati. This fact

has also not been incorporated in the site plan. There is

no mention of blood lying on it. It is wrong to say that

S.I. Giri was sent at Muzaffar Nagar mortuary for filling

up the Panchayatnama. At the place of occurrence no

eye was found lying. The witness Mohabbat Ali (P.W.1)

did not inform him that he was holding trunks at the

time of occurrence rather he had divulged the fact of

putting fodder near the cart. It was not unfolded by

P.W.1 Mohabbat Ali that he had earlier gone at the police

chawki and the police personnel present at the Chawki

directed him to go at the police station concerned to get

the first information report lodged.

Aladeen (P.W.2) had stated that at the time of

incident, he was peeling sugar cane. The witness

Aladeen had unfolded the name of Hasam who had

told that Ajaz was doing pairvi in the civil court. He had

not collected any paper with regard to case pending in

37

the civil court during investigation. Aladeen (P.W.2) had

not specifically told when two shots were fired and they

did not chase the assailants on account of unleashing

the reign of terror rather he told that both the

assailants had fired single shot each.

The miscreants were arrested on 22.1.2005 on the

tip of prior information. He had written in the Fard that

the pistol recovered from Hasam was in functioning

condition. The same fact was incorporated for the

second accused that the pistol recovered from him was

functional. Both the pistols were not sent by him for

ballistic examination because the cartridges were

neither recovered at the spot nor subsequently. Both the

pistols were sealed on which his signature was made in

the capacity of witness. He proved that the incriminating

articles including pistols were recovered from the

assailants. The charge sheet was submitted against the

accused after collecting credible and clinching materials

showing their complicity.

The prosecution has examined S.I.Prem Prakash

Giri on 27.2.2007 as P.W.5. He was at that time posted

at Special Investigation Department District Ghaziabad.

He stated on oath that on 16.1.2005, he was posted as

S.I.at police station Chhapar. On that day, the Case

Crime No. 6 of 2005 under section 302 was registered

against Hasam and others. He in association with

Station Officer Virendra Singh as well as police

personnel and the then Station Officer with requisite

papers reached at the place of occurrence Gram Basera.

38

On the direction of the then Station Officer, he prepared

the Panchayatnama vide Ext.Ka.6 and other requisite

papers in relation to deceased Ajaz s/o Gafoor on which

he had put his signature. He prepared the photo Nash,

letter to R.I., letter to C.M.O. He prepared the Fard of

blood stained and plain soil , Challan lash these were

marked as Ext. Ka.7,Ka.8, Ka.9 Ka.10 and Ka.11. After

carrying out the Panchayatnama and other necessary

papers, the corpse of Ajaz was sealed and was sent for

post mortem under the vigil of constable Harpal Singh

and constable Udaiveer Singh.

During cross examination, it was divulged by him

that Panchayatnama (Ext.Ka.6) was prepared at the

direction of the then Station Officer Virendra Singh but

Virendra Singh Station Officer had not put his signature

on the Panchayatnama. Panchayatnama was not

prepared on the dictate of the the Station Officer.The

then Station Officer had directed him to fill up the

Panchayatnama. He could not recollect as to whether

complainant was present or not.The panchayatnama

was being prepared in the dragon light and petromax

light. He could not ascertain what papers were being

prepared by the then Station Officer. The

panchayatnama was prepared from 6.30 p.m. to 8.30

p.m. The witnesses of the Panchayatnama had not

partcipated in any activity from 6.30 p.m. to 8.30 p.m.

He had seen the injury sustained on the right side under

arm and the left eye. The dead body of the deceased

Ajaz was saturated with blood. He had not shown any

39

injury on the back side of deceased (Ajaz) in the challan

lash. The corpse of Ajaz was lying in the north side of

the village concerned at a distance of one kilometre.

There was no road near the place of occurrence. He

could not divulge how long he stayed at the place of

occurrence. He could not recollect how long he stayed at

the place of occurrence after 8.30 p.m.In his presence,

Circle Officer concerned came but he could not recollect

how long the circle officer remained there. He did not

have knowledge from whom the circle officer concerned

enquired . The corpse of deceased (Ajaz) was lying in

the mid of the field. The sugar cane was lying scattered

on the spot. After the incident, he had gone only once to

fill up the Panchayatnama at the place of occurrence.

He had departed from the police station concerned in

association with Station Officer concerned at about 5.15

p.m. for visting the spot. The complainant of the case

was going with them. He could not recollect as to

whether on 17.1.2005 he was present at the police

station concerned in the morning or not. He did not visit

to Muzaffar Nagar mortuary on 17.1.2005. He denied

that the Panchayatnama of the deceased (Ajaz) was

completed in the mortuary at Muzaffar Nagar and the

time which has been narrated by him for proceeding to

the place of occurrence, at that moment the name of

any miscreant did not surface. He could not remind at

what time in the night he had collected blood stained

and plain soil.He denied that the Fard was prepared at

the police station concerned.

40

The prosecution has examined C.C.No. 1035

Virendra Kumar on 27.2.2007 who was posted at Police

Station Purkaji District Muzaffar Nagar. He stated on

oath that on 16.1.2005, he was posted as Constable

Clerk at police station Chapar. He had registered the

Case Crime No. 6 of 2005 under section 302 IPC on the

written information of Mohabbat Ali (P,.W.1). He had

prepared the Chick FIR , paper No.4 of this case which

has been written and signed by him and was marked as

Ext.Ka.12.This case was entered in G.D.No. 24 at 17.15

hours on 16.1.2005. The carbon copy of the G.D.paper

no.1/6 which has been prepared by him in the shape of

original was duly written and proved.The original

G.D.was before him. The corbon copy was marked as

Ext. Ka. 13.On 22.1.2005, the then Station Officer

Virendra Singh had arrested both the accused namely

Hasam and Nazam s/o Malkhoo at about 11.30 a.m.

with 12 bore country made pistol and cartridges and

315 bore pistol and cartridges. The accused persons

were brought at the police station concerned and the

Case Crime No. 16 of 2005 and 17 of 2005 under

sections 25/27 Arms Act were registered against Hasam

and Nazam. The fard of recovery of fire arms with

cartridges was duly prepared and annexed with the

Chick FIR as Ext.Ka.14. The particulars of this case

was duly entered in G.D.No. 16 at about 11.30 a.m. on

22.1.2005. The carbon copy of the G.D.written and

signed by him was duly proved and was marked as

Ext.Ka.15.

41

During cross examination, it was averred by the

P.W.6 Virendra Kumar that prior to registration of this

case, Station Officer Virendra Singh had departed with

police Geep in investigation of Rapat No.19 at 12.45

p.m. His return is mentioned in Rapat No.22 at 17

hours. No case was registered at police station on

16.1.2005 prior to the instant case. He had not given

information of this case to Control Room Muzaffar Nagar.

The information of this incident was given by the then

Station Officer because the case was registered at the

police Station in his presence. There is no mention in

the G.D. for sending the special report on 16.1.2005 till

12.00 (Night). There is no mention in the G.D. As it is

not required for the arrival of the High Officers of the

Police. It had taken about 15 to 20 minutes in preparing

the chick and GD of this case at the police station

concerned. At that moment, the Station Officer Virendra

Singh was writing the case diary. He proved that the

case was registered on the same day. He denied that

the chick or GD with regard to case registered under

section 25 Arms Act was prepared at the inkling and

connivance of the station officer concerned.

The prosecution has examined S.I. Harpal Singh as

P.W.7 on 27.2.2007 who was posted at Police Station

Kotwali District Bulandshahar. He stated on oath that he

was posted as S.I. at Police Station Chhapar on

22.1.2005. The Case Crime No. 16 of 2005 and 17 of

2005 under section 25 Arms Act were registered on the

same day. Thereafter, its investigation was entrusted to

42

him. He recorded the statement of the accused Hasam

and Nazam who were in the lock up. He entered the

fard of recovery and the arrest of the accused in the

C.D. He has recorded the statement of Constable

Virendra kumar, scribe of FIR. On 30.1.2005, he

recorded the statement of complainant Virendra Singh,

witnesses Pramod Kumar, Parvesh Kumar HCP Asarpal

Singh and also made spot inspection. He prepared the

site plan on the spot . During cross examination he

proved the same to have been written & signed by him.

The site plan was duly marked as Ext.Ka.16. He

collected credible and clinching evidence against the

accused appellants thus they were charge sheeted

under section 25/27 Arms Act. The charge sheet was

duly marked as Ext.Ka.17 & 18 site plan of Hasam case

Ext.as Ka.19 and was submitted before the court

concerned for cognizance. He proved the charge sheet

which was written and signed by him. The same was

sent to the District Magistrate for concurrence. He

sanctioned the same on 11.3.2005. The signature of

the then District Magistrate was duly identified by him.

This was exhibited as Ka.20. The sanction in respect of

Hasam was obtained on 11.3.2005 which is paper no.8.

He proved the signature of the then District Magistrate

Raj Kumar on the same which was also signed by him

(P.W.7) vide Ext.Ka.21. In his cross examination he

deposed that the charge sheet against Hasam and

Nazam was sent to the concerned court on 30.1.2005.

It is wrong to say that the entire recovery and other

course of action of this case viz. Statement and site plan

43

etc. was done in clandestine and bogus manner inside

the police station concerned.

In support of defence Rishipal Singh, Radio Station

Officer City Control Room, Muzaffarnagar was examined

as D.W.1 on 13.8.2007. He stated on oath that on

16.1.2005 he was posted as Radio Station Officer City

Control Room Muazaffar Nagar. He has proved photo

copy of the log book dated 16.01.2005 of city control

room, Muzaffarnagar in which the entry was made by

the then operator on duty at 17:05 p.m. that deceased

Ajaz was shot dead in his field by assailants.

After hearing counsel for the parties and

considering the merit of the case, learned court below

has recorded conviction of both the accused and passed

the sentence

Being aggrieved by the aforesaid judgment and

order of the trial court dated 23.4.2009, this appeal has

been preferred by the accused-appellants.

We have heard Shri Nazrul Islam Jafri Senior

Advocate assisted by Shri S.I. Jafri, learned counsel for

appellants and Shri Vikas Sahai, learned Additional

Government Advocate appearing on behalf of State and

perused the entire material on record.

It is submitted by Sri Shri N.I. Jafri learned senior

counsel appearing on behalf of the appellants that the

presence of alleged eye witnesses PW-1 Mohabbat Ali

and PW-2 Aladeen on spot at the time of incident is

highly doubtful. The occurrence was not witnessed by

anyone. PW-1 Mohabbat Ali being the brother of the

44

deceased is highly entrusted witness. There was no field

or house of PW-2 Aladeen near the spot therefore he

had no occasion to be present on the spot at the time

of incident. Name of one witness Haneef was also

mentioned in F.I.R. as eye witness but he has not been

examined.There are major contradictions and

inconsistencies in the statements of both the witnesses

of fact on material points. Their testimonies inspire no

confidence. There was no strong motive for committing

the murder of Ajaz. Motive assigned to the accused

appellants has not been proved. F.I.R. is ante-timed.

According to the prosecution case, the incident has

taken place at about 4.30 p.m. and the first information

report has been registered at 17.15 hours covering a

distance of 16 kilometres which creates serious doubt

about the verity and genuineness of the first information

report lodged within 45 minutes. The first information

report was not in existence at the time of conducting the

inquest of the deceased. The investigatingt officer had

not found any cart or darati from the spot. The

prosecution has to stand on its own legs.

Learned counsel for the appellants further submitted

the prosecution has failed to prove its case beyond

reasonable doubt against the accused appellants but

the learned Sessions Judge has erroneously convicted

and sentenced the accused appellants relying upon

untrustworthy and uncorroborated testimonies of the

prosecution witnesses. The judgment and order passed

by the learned trial judge is not tenable in the eyes of

45

law hence deserves to be set aside and the appeal may

be allowed.

Per contra Shri Vikas Sahai, learned A.G.A.

appearing on behalf of State contended that the

prosecution version is consistently proved and

established by testimonies of prosecution witnesses on

fact as well as other formal prosecution witnesses and

is fully supported by medical evidence. The presence of

witnesses is proved to be natural and statements are

nothing but truthful disclosure of actual facts, leading to

the occurrence. It will not be permissible for the court to

discard the statement of such witnesses on account of

minor contradictions on some points because witnesses

are rustic villagers. In criminal cases prosecutioin is not

bound to prove motive. It is well settled principle of law

that when incident has been proved by the ocular

evidence, there is no need to prove motive. F.I.R. is not

ante time but it has been promptly registered. It has

been further contended that wholesome study of the

evidence on record establishes guilt of the accused

beyond reasonable doubt. Learned Trial Judge took into

consideration every aspect of the case and rightly

convicted the appellants for charges under Section 302

I.P.C. The direct evidence of Mohabbat Ali (P.W.1) and

Aladeen (P.W.2) suppored by medical evidence pointing

guilt against the accused appellants are consistent with

the prosecution version ,hence the plea of the accused

appellants with regard to presence of mens rea fully

stands proved. Even if there is absence of motive, it

46

would not benefit the accused when there is reliable and

acceptable version of the eye witnesses supported by

medical evidence pointing against them. The

prosecution is not bound to prove the motive of any

offence in a criminal case, in as much as motive is

known only to the perpetrator of the crime and may not

be known to others if the motive is proved by the

prosecution, the court has to consider it and see

whether it is adequate.The testimony of the prosecution

witnesses are cogent, credible and trustworthy and have

a ring of truth hence it cannot be stifled or

overshadowed on account of minor variation which only

indicates that they are not tutored.

Now we have to scrutinize and evaluate the ocular

version of the prosecution witnesses on fact because it

has been contended on behalf of appellants that the

prosecution witnesses were not present on the spot and

they have not witnessed the incident as claimed by

them and their testimonies are contradictory and under

circumstances does not inspire confidence.Prosecution

has examined PW-1 Mohabbat Ali, PW-2 Aladeen as

witnesses of fact. We now take into consideration the

relevant portion of the testimony of the aforesaid

witnesses to decide reliablity of their testimony. PW-1

Mohabbat Ali brother of deceased is the complainant of

the incident. He has stated that on 16.01.2005 he along

with Haneef, Aladeen (PW-2) and his brother Ajaz

(deceased) were doing the work of removal of peels of

sugarcane in his field. At around 4 - 4:30 p.m. in the

47

day, both the accused Hasam and Nazam who belong to

his village came there with tamancha in their hands.

They stated that Ajaz (deceased) was doing pairokar

work against them in pending civil case, he would not be

spared alive. Both of them fired on Ajaz with the firearm

in their hand. The first fire hit on right back of the

deceased and the second fire hit on left eye and he died

on spot. He further stated that house of the accused

person is nearby his house and there was dispute

regarding drainage due to which they committed the

murder of his brother Ajaz (deceased). In his cross

examination he has deposed that at the time of incident

he was present on the spot and has seen the incident.

He has also stated position of Ajaz (deceased) and the

witnesses on spot at the time of incident. He has also

stated that he had shown each and every place to the

Investigating Officer at the time of spot inspection by

him. PW-2 Aladeen is an independent eye witness, he

has explained his presence on the spot at the time of

incident. He has deposed that he is resident of the same

village. He has no field near the spot but on getting

information regarding peeling work of the sugarcane, he

had reached there for doing the work of removal of

peels from the sugarcane and at the time of incident he

was present there and had seen the incident from a

distance of 20 paces. He has also stated that both the

accused Hasam and Nazam appeared on spot about 4–

4:30 p.m. with tamancha in their hands. Both of them

fired on Ajaz with firearm in their hand. Before firing,

accused Nazam exhorted saying that Ajaz is the

48

pairokar of the pending civil case, he would not be

spared. He has supported the statements of PW-1

Mohabbat Ali and stated that fire of accused Nazam hit

on right back side of the deceased and other fire opened

by Hasam hit on left eye of the deceased. He has

identified both the accused present in the court during

the trial. He stated that Ajaz died on the spot. In his

cross examination, he has deposed the fact that both

the accused fired on Ajaz, he has fully supported the

testimony of PW-1 Mohabbat Ali.

In detailed cross examination of PW-1 Mohabbat Ali

and PW-2 Aladeen, there are some contradictions and

ambiguity of time and place of inquest of the deadbody

of the deceased. There are some contradictions on the

point of time of incident and time of registration of F.I.R.

but there is no contradiction or inconsistency on the

point of manner, place, motive of incident and

identification of the accused persons. There is complete

consistency and coherence in examination-in-chief and

cross examination of the statement of both the

witnesses on above points of manner, place, motive of

incident and identification of the accused. It is settled

law that it is only the serious contradiction and omission

which materially effects prosecution but not every

contradiction or omission as held in Mritunjoy Biswas

Vs. Pranab Alias Kuti Biswas and Another reported

in (2013) 12 SCC 796 that minor contradictions,

inconsistencies or insignificant embellishments that do

not affect core of prosecution case should not be taken

49

to be a ground to reject the prosecution evidence.

It is also relevant here that PW-1 Mohabbat Ali and

PW-2 Aladeen, both are illiterate and rustic villagers. On

the basis of some contradictions their testimonies

cannot be discarded. Their evidence should be

considered as a whole and from the point of view of

trustworthiness.

In the case of State of Uttar Pradesh Vs. Krishna

Master and Anothers (2012) 12 Supreme Court

Cases 324, it has been held by Hon'ble Apex Court that

a rustic winess, who subjected to fatiguing, taxing and

tiring cross-examnation for days together, is bound to

get confused and make some inconsistent statements.

Some discrepancies are bound to take place if a witness

is cross-examined at length for days together.

Therefore, the discrepancies noticed in the evidence of a

rustic witness who is subjected to gruelling cross-

examination should not be blown out of proportion. To

do so is to ignore hard realities of village life and give

undeserved benefit to the accused who have

perpetrated heinous crime. In the present case cross of

Mohabbat Ali (P.W.1) and Aladeen (P.W.2) continued for

several months as such any embellishment or

exaggeration in their testimonies cannot be discarded if

the same is otherwise credible.

It has been contended by learned counsel for

appellants that PW-2 Aladeen has deposed on last page

of his cross examination that the complainant (PW-1)

had met him on the next day of incident and told him

50

that he had lodged F.I.R. against the accused-appellants

Hasam and Nazam. On the basis of this fragment

statement of PW-2, he contended that PW-2 Aladeen

was not present on the spot at the time of incident but

no conclusion can be drawn on the basis of fragment of

the statement of witness but whole statement is to be

seen. In his examination-in-chief and many places in

cross examination PW-2 has clearly stated that he was

present on the spot at the time of incident and has

witnessed entire incident.

Learned counsel for appellants contended that PW-1

Mohabbat Ali being brother of the deceased Ajaz, is an

interested and partisan witness. As regard statement of

interested witness, there is no bar in law on examining

family members as witness. In case of murder involving

family members, it is family member who comes

forward to lodge F.I.R. and discloses correct facts. If the

statement of a witness is bound to be credible, reliable

and trustworthy there would not be any reason for the

court to reject such evidence merely on the ground that

witness was a family member or interested witness or a

person known to the effected party as laid down by

Hon'ble Apex Court in the case of Amit Vs. State of

Uttar Pradesh reported in (2012) 4 SCC 107 that an

interested witness must have some direct interest in

having accused somehow convicted for some extraneous

reason and a near relative of victim is not necessarily an

interested witness.

51

In Hukum Singh Vs. State of Rajastan, (2000)

7SCC 490, Hon'ble the Supreme Court has held that

only premise for dubbing them as “interested witnesses”

is that they were the kith and kin of the deceased. Why

should such witnesses be termed as interested

witnesses? If they had seen the occurrence they would

certainly have the interest to bring the offence of the

murder of their breadwinner to book. Normally the kith

and kin of the deceased, if they had seen the occurrence

would not absolve the real offenders and involve

innocent persons in that murder.

Learned counsel for appellants submitted that in

F.I.R. presence of eye witness Haneef has also been

mentioned but this witness was not examined for reason

best known to the prosecution. As regards non

examination of the witness Haneef who is named in

F.I.R., it is not requirement of law to examine each and

every witness to prove the prosecution case. It is quality

and not quantity which determines the adequacy of

evidence as has been provided under Section 134 of

Evidence Act.

Medical evidence (postmortem report) fully

corroborates the prosecution version as well as

testimony of prosecution witnesses. In postmortem

report exhibit Ka-2 of the deceased firearm injuries are

found on right side back of the chest and on left eye of

the deceased. Thus ocular evidence has been fully

supported by medical evidence.

52

The presence of witnesses is proved to be natural

and their statements are nothing but disclosure of actual

facts relating to the occurrence. There is nothing on

record to show that PW-2 Aladeen had any animous

against the accused appellants. The testimony of

prosecution witnesses of fact are cogent credible and

trustworthy.

Learned counsel for appellants contended that there

was no strong motive on the part of the accused

persons to commit murder of the deceased and motive

assigned has not been proved. Perusal of record shows

that in this case motive has been mentioned in the F.I.R.

PW-1 Mohabbat Ali and PW-2 Aladeen, both have stated

that there was dispute of drainage between complainant

and accused persons and this was the cause of

committing murder. PW-1 has stated in his cross

examination that there was a civil case pending in the

court in which (deceased) was pairokar. Learned counsel

for the appellants contended that no documentary

evidence of alleged pending case has been filed and

alleged motive has not been proved. So far as motive is

concerned, it is settled law that motive is not a sine qua

non for commission of a crime. Failure to prove motive

or absence of evidence on point of motive would not be

fatal to the prosecution case where guilt is proved from

the reliable evidence. In fact motive is primarily known

to the accused himself and it may not be possible for

the prosecution to explain what actually prompted or

excited him to commit a particular crime.

53

In case of Shivaji Sahabrao Bobade v. State of

Maharashtra, (1973) 2 SCC 793, Hon'ble Supreme

Court has held that proof of motive satisfies the judicial

mind about the likelihood of the authorship but its

absence only demands deeper forensic search and

cannot undo the effect of evidence otherwise sufficient.

Motives of men are often subjective, submerged and

unamenable to easy proof that Courts have to go

without clear evidence thereon if other clinching

evidence exists.

In Vijay Shankar v. State of Haryana, (2015)

12 SCC 644, Hon'ble Apex Court has held that in each

and every case, it was not incumbent on the prosecution

to prove the motive for the crime. Often, motive is

indicated to heighten the probability of the offence that

the accused was impelled by that motive to commit the

offence. Proof of motive only adds to the weight and

value of evidence adduced by the prosecution. If the

prosecution is able to prove its case on motive, it will be

a corroborative piece of evidence. But even if the

prosecution has not been able to prove its case on

motive that will not be a ground to throw the

prosecution case nor does it corrode the credibility of

the prosecution case. Absence of proof of motive only

demands careful scrutiny of evidence adduced by the

prosecution.

In Abdul Waheed v. State of U.P.,(2016) 1 SCC

583, the Hon'ble Apex Court has held that proof of

motive of the accused towards the deceased heightens

54

the possibility of the crime. Proof of motive adds weight

and value to the evidence of the eyewitnesses.

In case in hand both the witnesses of fact have

proved the prosecution version and their testimonies is

fully supported by medical evidence therefore motive

loses its significance.

So far as the contention of learned counsel for

appellants is concerned that Buggi (Bullock Cart) and

instruments of peeling the sugarcane (Daranti and

Palkati) which were said to be with the witnesses at the

time of incident were not recovered by the I.O., in fact it

was the duty of the I.O. to take in possession and

prepare memo of the case properties but if there is any

laxity on the part of the I.O. in this regard, it could not

be a ground to doubt the testimony of PW-1 and PW-2

which were clear and cogent. The consistent and reliable

testimony of PW-1 Mohabbat Ali and PW-2 Aladeen

cannot be disbelieved on ground of any act or omission

on the part of the investigating officer. As held by Full

Bench of this Court in case of Gopal Vs. State of U.P.

reported in 1999 (39) ACC 98 that investigation of

the case if found faulty, even mischievous and collusive

could not be a ground to reject ocular testimony of the

informant who lodged the F.I.R. promptly. If eye witness

is believable the mere weakness of investigation should

not be a ground to reject the testimony.

So far as this argument is concerned that the F.I.R.

is ante timed, it is correct that according to chick F.I.R.,

it was lodged within 45 minutes after covering a

55

distance of 16 Kms. In F.I.R. time of incident has been

mentioned as 4:30 p.m. distance of police station from

the spot 16 Kms. and it was registered at 05:15 p.m.

but only on this basis it cannot be said that F.I.R. is ante

timed. Nowadays there are several fast modes of

covering distance and it has not been asked by the

informant (PW-1) in his statement that by what means

he covered a distance of 16 Kms. in 45 minutes to reach

to the police station for lodging F.I.R. Therefore lodging

the F.I.R. after covering a distance of 16 Km. can be

said as prompt F.I.R. The informant PW-1 is an illiterate

man of village atmosphere, it may also be possible that

the time of incident mentioned in F.I.R. may be

approximate and not exact 4:30 p.m. In his written

report informant has stated time of incident as about

4:30 p.m. In his statement PW-1 Mohabbat Ali and PW-

2 Aladeen both eye witnesses have stated that incident

occurred around 4:00 to 4:30 p.m.

Defence has examined DW-1 Rishipal Singh who

was posted on 16.01.2005 as Radio Statioin Officer City

control room Muzaffarnagar who has proved photo copy

of original log book dated 16.01.2005. In his statement

he has stated that then operator Ranjit Singh has made

entry at 17:05 hrs. in it that it was informed by police

station that Ajaz (deceased) was shot dead by assailants

in the field. On the basis of aforesaid statement, learned

counsel for appellants contended that time of incident

was different from time mentioned in F.I.R. and F.I.R. is

ante timed. As regards information of murder of

56

deceased by the assailants sent by the police station to

city control room prior to the registration of the F.I.R. as

contended by learned counsel for appellants is

concerned, on this basis it cannot be said that F.IR. was

ante timed because there may be possibility of getting

the information before registration of F.I.R. by some

other means.

As discussed above, both the witnesses of fact are

rustic witnesses there may be some difference in

mentioning accurate time of incident. In chick F.I.R. and

concerned G.D. time of registration of F.I.R. is clearly

mentioned and proved by PW-6 Constable Virendra

Kumar PW-5. Sub-Inspector Prem Prakash Giri has

conducted inquest on the same day and prepared the

inquest report. In the inquest report crime number and

the time of incident are mentioned which has been

proved by PW-5 in his statement. There was no delay in

lodging the F.I.R. In view of the entire facts and

circumstances it cannot be said that F.I.R. is ante timed

and lodged after consultation with police.

It is true that there are some minor contradictions

in the depositions of the prosecution witnesses of facts

that too in regard to the subsequent events and not to

the actual incident. Considering the entire facts. and

circumstances of the case, we are of the considered

opinion that contradictions are not so material which

goes to the root of the case and materially affect the

core of the prosecution case. Therefore, minor

contradictions cannot be taken to be a ground to reject

57

the testimony of the prosecutions witnesses of facts. In

the deposition of witnesses there are always normal

discrepancies due to normal errors of observation, loss

of memory, mental disposition of the witnesses and the

like. Unless, therefore, the discrepancies are "material

discrepancies" so as to create a reasonable doubt about

the credibility of the witnesses, the Court will not

discard the evidence of the witnesses. If the evidence is

untrustworthy and cannot be accepted by the test of

prudence, then it may create a dent in the prosecution

version. If an omission or discrepancy goes to the root

of the matter and ushers in incongruities, the defence

can take advantage of such inconsistencies. It needs no

special emphasis to state that every omission cannot

take place of a material omission and, therefore, minor

contradictions, inconsistencies or insignificant

embellishments do not affect the core of the prosecution

case and should not be taken to be a ground to reject

the prosecution evidence. The omission should create a

serious doubt about the truthfulness or creditworthiness

of a witness. It is only the serious contradictions and

omissions which materially affect prosecution case but

not every contradiction or omission.

The learned trial judge has drawn wrong inference

against the accused appellants with regard to recovery

of fire arms with cartidges from their possession. The

medical evidence is consistent with the use of the fire

arms. The fire arms have been recovered at the pointing

of the accused appellants from their possession. Even

58

though the offence under the Arms Act is quite distinct

from the different sections of the Indian Penal Code but

the acquittal under one provision of law will not

exculpate the accused appellants from the offence under

the penal provisions . Section 27 of the Indian

Evidence Act is in the nature of an exception to the

general rules contained in the two preceeding sections

i.e. under section 25 and 26. Section 25 makes

inadmissible any confession by an accused person to a

police officer. Under section 26 no confession by any

person while he is in the custody of a police officer shall

be proved against such person unless it be made in the

presence of a Magistrate. Section 27 says that such

part of the information given by an accused person

while in the custody of a police officer may be proved

against him as distinctly relates to the fact which is

thereby discovered. It therefore makes admissible a

confession made while in police custody if the other

conditions laid in it are fulfilled. Being an exception to

the general rule it has to be strictly construed. The

section does not permit the admission in evidence of the

whole of the confession, but of such portion only of it as

can be said to relate distinctly to the fact discovered.

There does not seem to be any controversy on this

aspect of the section. The accused appellants were

arrested on 22.1.2005 at 8.40 a.m. by the police

personnel and two pistols and cartridges were recovered

from their possession In view of this the portion of the

alleged joint statement by the accused appellants

wherein they admitted that they had committed the

59

murder of Ajaz with the pistols recovered from their

possession, this fact would be admissible in evidence.

Mere acquittal of the accused appellants for the charges

under sections 25/27 Arms Act for the reasons given by

the learned trial court would not give any benefit to the

accused appellants whose presence on the spot and by

whose firing the deceased succumbed to the injuries has

been fully proved by the evidence of Mohabbat Ali

(P.W.1) and Aladeen (P.W.2). The learned trial court

swayed by the so called irrelevant technicalities which

resulted into the acquittal of the appellants under the

Arms Act

On the basis of discussion made here-in-above and

also considering the material evidence on record, we are

of the considered opinion that findings of conviction for

the offence punishable under Section 302 I.P.C.

recorded by the trial court are well substantiated by the

evidence on record. The trial court has appreciated the

evidence in the right perspective. We do not find any

justification to interfere with the finding of conviction

recorded for the offence punishable under Section 302

I.P.C., therefore the conviction recorded against the

accused appellants under Section 302 I.P.C. is hereby

maintained and affirmed. The instant appeal is

dismissed accordingly.

The order dated 23.04.2009 passed by Additional

Sessions Judge Court No. 9 Muzafar Nagar in Sessions

Trial No. 405 of 2005 (State of Uttar Pradesh Vs. Hasam

and another) arising out of Case Crime No. 6 of 2005

60

under Section 302 Indian Penal Code Police Station-

Chhapar, District- Muzaffarnagar, is hereby affirmed.

Accused-appellants are in jail. They shall serve out the

sentence as awarded by the learned trial court and

affirmed by this Court.

Let a copy of the judgment be certified and sent

along with the lower court record to the court below

immediately for compliance and necessary entry be

made in the relevant register.

(Anil Kumar-IX, J.) ( Naheed Ara Moonis,J.)

Order Date :- 22.10.2019

Sharad/-