Gafoor & Another vs State Of U.P.
2016 Latest Caselaw 7411 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                        Reserved 
 
Case :- CRIMINAL APPEAL No. - 956 of 2006                        AFR
 
Appellant :- Gafoor & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Veer Singh,Mohd Abid Ali,S.K.Tiwari
 
Counsel for Respondent :- Govt. Advocate,N.K. Pandey,Ram Raj Pandey
 
                 Connected with 
 
Case :- GOVERNMENT APPEAL No. - 3056 of 2006
 
Appellant :- State Of U.P.
 
Respondent :- Khaliq & Others
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- N.I.Jafri
 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra,J.

(Delivered by Hon'ble Arvind Kumar Mishra,J.)

Heard Sri Mohd. Abid Ali assisted by Sri S.K. Tiwari, learned counsel for the appellants and Sri A.N. Mulla assisted by Sri Chandrajeet Yadav, learned AGA for the State in the present appeal and Sri A.N. Mulla assisted by Sri Chandrajeet Yadav, learned AGA for the State-appellant and Sri Mohd. Abid Ali assisted by Sri S.K. Tiwari, learned counsel for the accused-respondents in the connected Government Appeal No.3056 of 2006.

The instant criminal appeals have been preferred by the appellants Gafoor and Sultan, both sons of Gaffar against the judgment and order of conviction dated 18.02.2006 passed by Additional Sessions Judge, Fast Track Court No.1, Bijnor, in Sessions Trial No. 108 of 1999, State Vs. Gaffar and others, arising out of Case Crime No.1105-1999, under Sections 302, 307, 504, 506 IPC, Police Station Kotwali City, District Bijnor whereby the appellants have been sentenced to life imprisonment coupled with fine Rs.2000/- each under Section 302 IPC, default stipulates for additional imprisonment for two months, five years rigorous imprisonment under Section 307 IPC, six months rigorous imprisonment under Section 504 IPC and one year's rigorous imprisonment under Section 506 IPC. Sentences shall run concurrently.

The aforesaid Government Appeal No.3056 of 2006 (State of U.P. Vs. Khalik and others) was preferred by the State against the same judgment and order of acquittal dated 18.02.2006 qua accused Khalik, Abdulla, Abdul Waris @ Lala, Mausam and Abdul Salam whereby they were acquitted of charges under Sections 302, 307, 504, 506 IPC.

Since both the aforesaid appeals arise out of one and the same judgment dated 18.02.2006 passed by Additional Sessions Judge, FTC No.1, Bijnor, therefore, both the appeals are being disposed of by way of a common judgment.

The prosecution facts as discernible from record suggest that first informant Dildar Ahmad, resident of village Jhalra, Police Station Kotwali City, District Bijnor, lodged a written report at Police Station Kotwali City, on 13.10.1999 around 9:45 a.m. whereby allegations were made against several persons including the present appellants pertaining to causing of death of Abdul Sattar and Zafar and causing injury to the informant's mother Mahfuzan wife of Abdul Sattar. In the morning of 13.10.1999, it was around 6:30 a.m. informant, informant's father Abdul Sattar and his uncle (tau) Zafar were sitting under thatched roof of their house. In the meanwhile, informant's neighbours Gaffar, Gafoor and Sultan possessing 'tabal' in their hands and Khalik Abdulla, Abdul Waris @ Lala and Mausam possessing 'barchi' (Harpoon) in their hands and Salam Gafoor possessing country-made pistol ('tamancha') in his hand arrived on the spot and extended filthy abuses. When Abdul Sattar (deceased) asked them not to abuse, then all of a sudden they started assaulting informant's father and uncle. Salam opened shot from his country-made pistol ('tamancha'). In the meantime, informant's mother Mahfuzan rushed to the rescue of her husband (Abdul Sattar) but she too sustained injuries. Hearing hue and cry, Informant's uncle Jabbar, Intezar and Nasir also arrived on the spot. The assailants threatening with life and abusing, fled away from the scene. In a short while, police constable also arrived on the spot. He took seriously injured Abdul Sattar, Zafar and Mahfuzan to the District Hospital Bijnor where informant's uncle Zafar and father Abdul Sattar were declared dead. Report be lodged and action be taken. This written report is Ext. Ka-1.

The first information report was lodged at Police Station Kotwali City, District Bijnor on 13.10.1999 at Case crime no. 1150 of 1999 under Sections 147, 148, 149, 307, 302, 504, 506 IPC. The check FIR is Exhibit Ka-7.

On the basis of entries made in the check FIR, case was registered against the accused persons at serial no. 22 of G.D. on the same day at 9:45 a.m. at Case Crime No. 1150 of 1999 under the aforesaid Sections of IPC at Police Station Kotwali City, District Bijnor. G.D. entry is Ext. Ka-8.

Record signifies that after registration of the case, investigation of the case was taken over by S.I. Shreshtha Pal Singh, PW-8. He swung into action, took statement of various persons and proceeded to the District Hospital. He made necessary arrangements by directing S.I. Shri Krishna Kumar Singh, PW-9 for holding inquest of both the deceased persons. Krishna Kumar Singh, PW-9 held inquest of both the deceased at District Hospital after appointing inquest witnesses. He completed inquest report of Zafar around 11:25 a.m. the very same day and has proved the same as Exhibit Ka-15. He also held inquest of deceased Abdul Sattar after appointing inquest witnesses. He completed inquest report of Abdul Sattar around 12:30 p.m. the very same day which he has proved as Exhibit Ka-19.

In the process, inquest witnesses expressed opinion for conduction of postmortem examination of both the dead bodies in order to ascertain real cause of death. Therefore, relevant papers were prepared by Krishna Kumar Singh, PW-9 for sending both the dead bodies for postmortem examination. Relevant papers pertaining to inquest of Zafar have been proved as Ext. Ka-16, Ext. Ka-17 and Ext. Ka-18 and relevant papers pertaining to inquest report of deceased Abdul Sattar are Ext. Ka-20, Ext. Ka-21, Ext. Ka-22 and Ext. Ka-23.

Record reflects that postmortem examination on cadaver of both the deceased was conducted at mortuary, Bijnor by Dr. Vijay Kumar, PW-6 on 14.10.1999. The postmortem examination on cadaver of deceased Zafar was conducted around 11:15 a.m. The doctor found following ante-mortem injuries during examination:-

(1) Incised wound 2 cm x 1/2 cm x bone deep on back of skull, 15 cm post to right ear. On exposure, there is fracture of underline occipital bone deep and depressed fracture.

(2) Abrasion 3 cm x 3cm on skull left side frontal area, above eyebrow red. On exposure, there is collection of blood under skin with fractured bone.

(3) Abrasion 1.5 cm x 1 cm on top of left shoulder.

(4) Abrasion 1 cm x 1/2 cm on face left side near zygoma.

(5) Abrasion 1cm x 1cm on left side of abdomen, near anterior superior illiac spine.

(6) Abrasion 1/2 cm x 1/2 cm on left thigh, lateral side mid part.

Duration of death was stated to be about one day and cause of death was described shock and haemorrhage due to ante-mortem injuries. The postmortem examination report is Exhibit Ka-5.

Dr. Vijay Kumar, PW-6 also conducted postmortem examination on cadaver of Abdul Sattar around 12:10 p.m. wherein he found following ante-mortem injuries:

(1) Lacerated wound 2 cm x 1 cm x bone deep on skull, occipital area and post to right ear.

(2) Lacerated wound 1 cm x 1 cm right side skull x bone deep, near mastoid process behind ear.

(3) Lacerated wound 1 cm x 1/2 cm x bone deep on face, right side in front of ear, ooze.

(4) Lacerated wound 1.5 cm x 1/2 cm x bone deep on right side chin, near lower lip.

(5) Lacerated wound 2 cm x 1 cm on skull, back, left side, 10 cm post to left ear.

(6) Contusion, multiple, on right upper arm, back surface in area of 15 cm x 14 cm and going up to back of shoulder, in the measurement of 8 cm x 1.5 cm size to 7 cm x 1.5 cm, 6 in numbers.

(7) Incised wound 1 cm x 0.3 cm x bone deep on middle of right upper arm, back side.

(8) Multiple contusions in an area of 30 cm x 25 cm on back of right hip and back, red, in the measurement of 10 cm x 2 cm to 8 cm x 1.5 cm size, 6 in number.

(9) Abrasion 1 cm x 1 cm on right side abdomen, near anterior superior illiac spine.

(10) Abrasion 1 cm x 1/2 on back, left side, near scapula.

(11) Incised wound 2.5 cm x 1 cm x bone deep on right leg, 12 cm below patella.

(12) Lacerated wound 3 cm x 2 cm x bone deep on right leg lower part. On exposure, both bones fractured and ooze.

(13) Lacerated wound 2 cm x 0.5 cm x bone deep on left leg, front surface, 20 cm below patella.

(14) Contusion 6 cm x 2 cm on left leg, 2 cm below injury no.13, front side.

(15) Multiple small abrasion on dorsal of left hand, in an area of 6 cm x 7 cm, in the measurement of (1/2 cm x 1/2 cm to 1 cm x 1/2 cm).

Duration was stated to be about one day. Cause of death was shock and haemorrhage due to ante-mortem injuries. Postmortem examination report of Abdul Sattar is Exhibit Ka-6.

Record further reflects that the very same day, prior to lodging of the first information report, Dr. V.K. Gupta, PW-5 medically examined injured Mahfujan on 13.10.1999 at District Hospital Bijnor, around 9:15 p.m. who found following injuries on her person:-

(1) Lacerated wound 5 cm x 0.8 cm. X bone deep on right parietal region, 11 cm from right mastoid process.

(2) Complaint of pain on left upper arm.

(3) Complaint of pain on left thigh region.

In the opinion of doctor, duration was fresh and injuries were caused by hard and blunt object. X-ray was advised for injury no. 1 and kept under observation. Medical examination report of Mahfuzan is Exhibit Ka-3.

Pursuant to aforesaid advise, X-ray of skull was done by radiologist Dr. Rajesh Kumar Bansal, PW-4 at District Hospital, Bijnor on 13.10.1999 wherein no traumatic bony injury was seen. This x-ray examination is Exhibit Ka-2. X-ray plates have been proved by Dr. Rajesh Kumar Bansal, PW-4 as material Exhibits 1, 2 and 3.

The investigation of this case commenced and the Investigating Officer, PW-8 besides recording statement of prosecution witnesses, arrested Gafoor, Khalik, Abdul Waris and Mausam on 15.10.1999. He also recovered 'tabal' from possession of accused Gafoor and Harpoon from possession of Khalik, Abdul Waris and Mausam. He made memo of arrest and recovery which is Exhibit Ka-13 on record. The Investigating Officer also collected simple and blood-stained clay rolls and made memo of the same which is Exhibit Ka-12. The Investigating Officer also prepared site plan of place of occurrence at the instance of first informant Dildar son of Abdul Sattar, which is Exhibit Ka-11.

Blood-stained clothes of injured Mahfujan were handed over to the police by informant Dildar (Dilshad) and memo of the same was prepared which is Exhibit Ka-9. Relevant entry of the aforesaid memo of blood-stained clothes was made at the concerned GD No. 39 at 13:10 hours on 24.10.1999 in Rooj Namcha at Police Station Kotwali City, District Bijnor. This entry is Exhibit Ka-10.

After completing investigation, the Investigating Officer filed charge-sheet against accused persons at Case Crime No.1150 of 1999 under Sections 147, 148, 149, 307, 302, 504, 506 IPC. Charge-sheet is Exhibit Ka-14.

The Investigating Officer also sent blood-stained clothes, 'barchhi', 'farsa' and blood-stained clay roll for chemical examination at concerned 'Vigyan Prayogshala', Agra, from where a report dated 29.02.2000 was obtained.

Pursuant to committal proceeding, case was transferred from the Sessions Court to the aforesaid trial court i.e. Additional Sessions Judge, Bijnor for conduction of trial and its disposal.

Prosecution opened its case by stating the charges brought against the accused and it also stated the evidence by which it proposed to prove guilt of the accused. The trial court heard the accused as well as prosecution on the point of charge and was, prima-facie, satisfied with the case for framing charges under Sections 147, 148, 307/149, 302/149, 504 and 506 IPC. Accordingly, trial court framed charges against accused persons. Charges were read over and explained to the accused who abjured charges and opted for trial.

Consequently, the prosecution was asked to adduce its testimony in respect of charges. The prosecution produced in all 10 witnesses. A brief reference of them is ut infra:

Dildar PW-1, Mahfujan PW-2, Intezar PW-3 are the witnesses of fact and they claimed themselves to be eyewitnesses of the incident. Dildar PW-1 is the informant. He has proved lodging of the first information report at Police Station Bijnor City besides describing the incident in his testimony. Mahfujan PW-2 is the injured eye-witness. She has vividly narrated the incident in her testimony. Her medical examination was conducted at District Hospital on 13.10.1999 which culminated into her x-ray examination of skull but no traumatic bony injury was seen. Intezar PW-3 is witness of the incident. He claims himself to be present on the spot at the time of occurrence and he has also described about the incident. Rajesh Kumar Bansal PW-4 is the radiologist. He has proved x-ray report of skull of injured Mahfujan as Exhibit Ka-2 and X-ray plate as material Exhibit 1, 2 and 3. Dr. V.K. Gupta PW-5 medically examined Mahfujan PW-2 on 13.10.1999 and proved her injury report as Exhibit Ka-3. Dr. Vijay Kumar PW-6 conducted autopsy on cadaver of both the deceased, namely- Zafar and Abdul Sattar 14.10.1999 around 11:15 a.m. and 12:10 p.m., respectively and has proved both the postmortem examination reports as Exhibit Ka-5 and Ka-6 respectively. Constable Sukhbir Singh PW-7 has testified to fact that he made relevant entries in the concerned check FIR and concerned general diary on 13.10.1999 after receiving the written report on 13.10.1999. He has proved check FIR as Exhibit Ka-7 and relevant GD entry Exhibit Ka-8 whereby case was registered against accused persons. S.I. Shreshtha Pal Singh PW-8 is the Investigating Officer. He has conducted investigation of the entire case and has elaborated entire process before the trial court and has proved various papers/exhibits and has filed charge-sheet against accused persons which is Exhibit Ka-14 on record. Krishna Kumar Singh PW-9 has held inquest of both the deceased Zafar and Abdul Sattar on 13.10.1999 at District Hospital, Bijnor and completed process at 12:30 p.m. the very same day and has proved both the inquest reports as Exhibit Ka-15 and Ka-19 respectively. He also proved relevant papers prepared during course of inquest for sending both the dead bodies of aforesaid two deceased for postmortem examination. Constable Munna Singh PW-10 is witness of fact that he was present at the time of holding inquest of both the deceased and he was entrusted with the dead bodies for conveying the same to mortuary.

No further evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C. wherein the accused persons denied prosecution claim and submitted that their implication in this case is on account of enmity with the informant side. In turn, defence also produced two witnesses namely Yogendra Kumar DW-1 and Manoj Kumar Upadhyay DW-2. Both these witnesses have testified to facts that they prepared affidavits having reference on the incident and they have proved execution of these affidavits as Kha-1 and Kha-2.

The trial court after hearing both the sides on merit and appraising facts and evaluating the evidence, acquitted Khalik Abdulla, Abdul Waris @ Lala, Mausam and Abdul Salam, of all charges, whereas, convicted Gafoor and Sultan for charges under Sections 302, 307, 504 and 506 IPC and sentenced them to imprisonment for life coupled with fine Rs.2000/- and in case of default, the concerned convict was to suffer additional imprisonment for two months under Section 302 IPC, five years rigorous imprisonment under Section 307 IPC, six months' rigorous imprisonment under Section 504 IPC and one year's rigorous imprisonment under Section 506 IPC.

Consequently, the aforesaid two appeals- one against conviction and sentence by the two accused persons Gafoor and Sultan and the other against the order of acquittal qua aforesaid accused persons by the Government.

Learned counsel for the appellants has submitted that the occurrence was not witnessed by any of the prosecution witnesses of fact. It is a case of blind murder during course of some dacoity which took place in the house of Abdul Sattar and both the deceased persons Zafar and Abdul Sattar were murdered in the commission of dacoity. Appellants happen to be next-door neighbour of first informant. They had no motive to commit the offence. Testimonial account of witnesses divulges that witnesses are relative of deceased, they are chance witnesses, their testimony is unreliable and they are partisan witnesses. Their testimony on the whole is tainted and full of embellishments.

Learned counsel for the appellant has further submitted that presence of Dildar PW-1, Mahfujan PW-2 and Intezar PW-3, on the spot at the time of occurrence is highly doubtful. Their version of incident varies on material points. Each version of the aforesaid witnesses of fact materially contradicts version of incident given by other witnesses. It is not possible under circumstance that firing was done on the spot but no injury was caused on the informant side indicating gunshot wound. The Investigating Officer colluded with the first informant. Name of the assailants was not known to the first informant and the police, therefore, they deliberated the case till preparation of inquest reports and found it easy to involve the appellants merely on account of enmity. The case of the prosecution is not proved. FIR is ante-timed. The presence of Mahfujan and Intezar, under circumstances, is not proved, for the reason that Mahfujan when allegedly arrived on the spot, laid herself upon her husband Abdul Sattar but she did not sustain any serious injury. Injuries caused on the person of Mahfujan were manufactured and can be caused while running and colliding with hard object- say- door and plank of door. The doctor has also expressed such possibility. No injury was caused to the first informant Dildar PW-1 and Intezar PW-3, which reflects on their absence on the spot. The investigation was done perfunctorily and it was not fair. The trial court has acquitted as many as five persons of the same charges on the same evidence and fact which stand against the present appellants. This also causes dent in the finding of conviction by the trial court. Charges against appellants have not been proved beyond reasonable doubt.

Per contra, the learned AGA has submitted that case of the prosecution has been consistently proved and investigation of this case has been done properly and fairly. Testimony of the prosecution witnesses of fact is clinching, sans embellishment and improvement and under circumstances, is natural and inspires confidence. Mahfujan PW-2 the injured witness has described every relevant details of the incident and participation of the accused persons in the incident.

Learned AGA has further submitted that motive for committing crime has been proved beyond reasonable doubt. The accused side was advising the deceased Abdul Sattar, not to raise wall on the land. In order to intensify their claim, the accused persons assaulted first informant side, causing injuries to Mahfujan and killed two persons- Zafar and Abdul Sattar. Whatever contradictions, appear in testimony of the prosecution witnesses of fact, are natural and every witness is not expected to come out with uniform pictorial narration of the incident and some infirmities are bound to occur. These contradictions are of trivial nature.

The learned AGA has further submitted that the trial court while recording acquittal of five persons, namely- Khalik, Abdulla, Abdul Waris @ Lala, Mausam and Abdul Salam erred in law and based its finding on conjunctures and surmises rather than material on record. Material available against accused persons was reasonably proved that they also participated in the incident. Their exoneration from charge based on thinking that there is no injury caused by use of 'barchhi '(pierce-like weapon) is, under facts and circumstances of this case, not relevant.

It is not necessary that the blow/assault should always be caused from edge/piercing side of the weapon. It may be caused from blunt side of the weapon. The participation of all the accused in the incident was overwhelmingly proved by testimony of prosecution witnesses of fact.

After hearing learned counsel for the parties and considering rival submissions of the respective parties, core consideration that arise in these appeals are two pronged - one relates to fact whether the prosecution was not able to prove its charges against appellants Gafoor and Sultan in the aforesaid Criminal Appeal (956 of 2006) and the other relates to fact whether finding of acquittal is based on conjectures and surmises rather than grounded on material on record in the aforesaid Government Appeal?

We also recall the allegations contained in the first information report which simplicitor make out a case of altercation between the parties on the ground that the informant side wanted to raise construction of wall on its land which act was frowned upon by the accused persons and they insisted that no such wall should be raised. It was around 6:30 a.m., the accused persons appeared on the scene with harpoon ('barchhi') and 'tabal' (axe-like weapon), they extended vituperation which was objected to by the informant side whereupon the accused persons conjointly assaulted the two deceased. It was also alleged in the FIR that Abdul Salam also fired from his country-made pistol and the accused persons severely assaulted Abdul Sattar, Zafar and Mahfujan, wife of Abdul Sattar who rushed to the rescue of her husband and laid herself upon her husband. In the process, she too sustained injuries. In the meantime, alarm was raised and various other persons also arrived on the spot and the accused persons after threatening of dire consequences, fled away from the scene.

In the backdrop of aforesaid factual aspect of this case, it has been claimed by learned counsel for the appellants that the entire first information report is silent about any injury being caused to any of the prosecution witnesses except injured Mahfujan. The two deceased persons- Abdul Sattar and Zafar were assaulted allegedly by 8 persons. It is highly improbable that eight assailants armed with deadly weapons would let go first informant Dildar and Intezar the two other witnesses of fact, without causing any injury to them. Had they been present on the spot at the time of occurrence, the assailants would have assaulted them or at least would have tried to cause assault upon them but circumstances and allegations contained in the first information report do not whisper or indicate any such instance, therefore, presence of first informant Dildar and Interzar, PW-1 and PW-3 respectively on the spot becomes highly doubtful.

He went to add that injuries caused on the person of Mahfujan are not serious one and the first information report suggests that police constables also arrived on the spot during course of incident and Mahfujan was taken to the hospital which fact is not positively proved by the prosecution witnesses. Possibility is that after dacoity was committed, assault was caused upon Abdul Sattar, Zafar and Mahfujan, who were taken to hospital where after deliberation with the police, names of the accused persons have been falsely dragged in by the first informant in this case.

In respect of above contentions, we are satisfied with fact that Dildar PW-1 and Intezar PW-3 have given description of the incident, factually on the same line as PW-2 (Mahfujan). Dildar PW-1 claims to have been present on the spot but accused did not cause any injury to him nor did they ever attempt to cause any injury to him. In this way, his presence creates doubt. Intezar PW-3 says that he had come one day prior to the incident in the evening and was staying in the house of Abdul Sattar when the occurrence took place next morning around 6:00 a.m. We will discuss overall impact of this aspect in our analysis of facts and evaluation of relevant evidence.

Testimony of PW-2 Mahfujan on the point of occurrence appears to be clinching and natural. She has testified in her examination-in-chief that it was around 6:30 a.m. she was inside her house when she heard some noise, then she rushed to the spot where thresher (machine for cutting fodder) was installed under thatched roof and her husband Abdul Sattar and her brother-in-law ('jeth') Zafar were being assaulted by the accused persons with their respective weapons harpoon and 'tabal', and Abdul Salam was possessing 'tamancha' in his hand. She rushed to their rescue, then Gafoor assaulted her with 'tabal' which hit her on her head. Abdul Salam fired by his 'tamancha' but it did not hit anybody. She claimed that Intezar, brother-in-law of her son and Nasir, and her brother-in-law Zabbar along with a number of villagers arrived on the spot.

Mahfujan PW-2 has been cross-examined wherein nothing adverse has emerged which may indicate that this witness (PW-2) was not present on the spot or that she did not witness the incident. Though there are minor contradictions in the statement given to the Investigating Officer, on point of causing injury by 'tabal' on her head but that contradiction on the whole is not substantial and does not make any dent in her otherwise clinching testimony. She claims to have arrived on the spot only after the incident had commenced and then she laid herself upon her husband in order to save him. However, her testimony as appearing on page no. 93 of the paper-book is indicative of fact that Nasir and Intezar also returned from jungle and in the meanwhile, the assailants had fled away from the scene of occurrence after assaulting the injured. This piece of testimony emerging in cross-examination of Mahfujan PW-2 is indicative of positive implication that Intezar PW-3 arrived on the spot only after the assailants had left the scene of occurrence and he (PW-3) did not witness the incident, therefore, presence of Intezar PW-3 on the spot that he witnessed the entire incident, under the circumstances becomes highly improbable and he cannot be believed to have witnessed the occurrence. Though suggestion has been made by defence that he reached hospital after receiving information qua the incident and his presence in the hospital is overwhelmingly proved. On the point of occurrence, testimony of PW-3 is of no use as he is not witness of incident.

Now we may assess and evaluate testimony of Dildar PW-1, first informant. When we peruse the contents of the first information report and examination-in-chief of PW-1 Dildar, we come across fact that no positive assertion or allegation has been made which may reflect any positive gesture on the part of the first informant in order to save his father and uncle and also the mother. It is highly suspicious and improbable that informant's mother Mahfujan rushed to the rescue of Abdul Sattar but the son remained a mute spectator to the entire incident and did nothing to avert violence being perpetrated on the spot on his father and uncle by the assailants. He has given general description of the incident that threat was extended by Abdul Salam, who was possessing country-made pistol that in case anyone came forward to the rescue of the victim, he will be dealt with severely.

Testimony of PW-1, PW-2 and PW-3 on the point that certain empty cartridges were left on the spot, is negated and contradicted by the testimony of Investigating Officer, Shreshtha Pal Singh PW-8 as appearing on page no. 119 of paper book that he did not find any cartridges 'tikli' or mark of firing when he visited the spot. Therefore, testimony on the point that after firing empty cartridges were lying on the spot appears to be an afterthought and in the face of aforesaid testimony of the Investigating Officer loses significance and cannot be given any credence by us. The claim of firing being done on the spot and due to which the first informant Dildar was compelled not to come to the rescue of his father and uncle, is a pretext in order to avoid a positive circumstance of the case. It appears that presence of Dildar PW-1, on the spot at the time of occurrence was not there and he, too, was somewhere else and he did not witness the actual occurrence. He too arrived on the spot after the incident had taken place.

In view of above analysis and scrutiny of evidence, facts and circumstances of this case, we unequivocally hold that the only testimony that inspires confidence remains that of PW-2 Mahfujan, who has described the incident in an innocuous manner and has given vivid and consistent narration of the incident. Facts and circumstances of this case show that she along with two deceased- Abdul Sattar and Zafar was taken to the District Hospital soon after the incident by the first informant and police constable where Abdul Sattar and Zafar were declared dead.

Mahfujan PW-2 was medically examined by Dr. V.K. Gupta at District Hospital, Bijnor at 9:15 a.m. Her medical examination report has been proved by Dr. V.K. Gupta. He has proved fact that Mahfujan was brought by Constable No.42 Rajveer Singh and Abdul Zabbar. He noted injuries in form of lacerated wound 5 cm x 0.8 cm x bone deep on right parietal region, 11 cm from right mastoid process, complaint of pain on left upper arm and complaint of pain on left thigh region. Duration was stated to be fresh. Injuries were caused by hard and blunt object. X-ray was advised for injury no.1 and kept under observation. This injury report is Exhibit Ka-3

The injury report of Mahfujan PW-2 (Exhibit Ka-3) when compared with testimony of Mahfujan PW-2 appears genuine and worthy of credence, for the reason that in her cross-examination, she has specifically testified to fact that after she laid herself on her husband deceased Abdul Sattar, no further assault was caused to her. It means that after a little assault being caused by the assailants, when they saw that rescuer is no other than a lady, then they retreated and they refrained from causing any further assault. That is why the nature of injury is not serious as seen in X-ray report of skull of Mahfujan wherein no bony traumatic injury was seen. Thus, testimony of PW-2 Mahfphojan on the whole inspires confidence and proves the occurrence though fraught with little embellishments and improvements but innocuous one on point of occurrence.

The Investigating Officer recorded statement of Mahfujan wherein also, no material contradiction occurs which may render her testimony unworthy of credit. On the contrary, specific suggestion made by the defence that injuries were caused by some other persons in dacoity, is not borne out from the circumstances in order to corroborate it by any supporting testimony. Therefore, theory of dacoity being committed wherein injuries were caused upon Abdul Sattar, Zafar and Mahfuzan cannot be taken to be positive assertion to be believed by us. However, we doubt presence of Dildar PW-1 and Intezar PW-3 on the spot, whereas, on wholesome reading of the injured witness (PW-2), we incline to rely on her clinching testimony and this witness is worthy of credit and she has been cross-examined strenuously by the defence wherein nothing adverse of any sort has emerged which may whisper about her non-presence on the spot.

The trial court while appreciating evidence on record against the accused persons rightly based its finding that the assailants who possessed harpoon, if assaulted the informant side, then the nature of injury would have been specific and noted as such in the medical examination of the person of Mahfujan and the dead bodies on the informant's side.

The medical examination of Mahfujan and postmortem examination reports of both the deceased Abdul Sattar and Zafar do not point out causing of injury by any pointed weapon like harpoon, etc. Therefore, the assailants who possessed 'tabal' alone have caused injuries found on the two deceased.

Here, if 'tabal' is used from its blunt side, it would cause abrasion and incised wound. Therefore, the assailants who were possessing harpoon were rightly given benefit of doubt by the trial court and the finding of conviction in case of the present appellant Gafoor and Sultan is found to be based on material on record and the acquittal of the five accused-respondents in the aforesaid Government Appeal namely- Khalik, Abdulla, Abdul Waris @ Lala, Mausam and Abdul Salam is also found to be grounded on solid rock of testimony available on record.

In view of above, we concur with finding of conviction recorded by the trial court vide its judgment and order dated 18.2.2006 in respect of the two appellants- Gafoor and Sultan whereby they have been convicted under Sections 302, 307, 504, 504, 506 IPC and sentenced condignly.

Accordingly, finding of acquittal in respect of above mentioned five accused-respondents in Government Appeal No.3056 of 2006, recorded by the trial court requires no interference by us and the same is also upheld by us.

Consequently, both the appeals being devoid of merit are dismissed.

In this case, both the appellants in the aforementioned Criminal Appeal No. 956 of 2006 are in jail. They will serve out the remaining part of their sentence imposed by the trial court. However, the accused-respondents in Government Appeal No. 3056-2006- Khalik, Abdulla, Abdul Waris @ Lala, Mausam and Abdul Salam shall furnish bonds under Section 437-A Cr.P.C. within a month before the trial court.

Let a copy of this order be certified to the trial court for its intimation and necessary follow-up action.

Order Date :- 06.12.2016

Ishan Batabyal.