Islahuddin vs State Of U.P.
2017 Latest Caselaw 7234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
(1) Case :- CRIMINAL APPEAL No. - 1610 of 2008;
 
Appellant :- Islahuddin, son of Israr Alam, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Rafey Siddiqui,Ram Raj
 
Counsel for Respondent :- Govt.Advocate,Mohd. Haneef,R P Mishra
 
(2) Case :- CRIMINAL APPEAL No. - 1696 of 2008;
 
Appellant :- Taufeeq Alam @ Kimmu, son of Fayyazuddin, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Mansoor,Ghulam Mohammad Kamil,Pankaj Dhar Dwivedi,Sanjai Misra,Santosh Kumar Srivastava
 
Counsel for Respondent :- G.A.,Mohd. Hanif,R P Mishra
 
(3) Case :- CRIMINAL APPEAL No. - 1699 of 2008;
 
Appellant :- Salahuddin son of Israr Alam, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mohd. Mansoor,Brij Mohan Sahai,Pankaj Dhar Dwivedi
 
Counsel for Respondent :- G.A.,Mohd. Haneef,R P Mishra
 
(4) Case :- CRIMINAL APPEAL No. - 1582 of 2008;
 
Appellant :- Shamshad Alam @ Saimadh, son of Fayyazuddin, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Raza Zaheer,Akhilesh Chauhan,Nagendra Mohan,Naved M Ali
 
Counsel for Respondent :- G.A.,Mohd. Haneef
 
(5) Case :- CRIMINAL APPEAL No. - 1608 of 2008;
 
Appellant :- Saifuddin @ Saikuddin, son of Abu Qais, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Rafey Siddiqui,Dhananjai Kumar Singh
 
Counsel for Respondent :- Govt.Advocate,Mohd. Haneef
 
(6) Case :- CRIMINAL APPEAL No. - 1609 of 2008;
 
Appellant :- Wahajuddin (wrongly mentioned in the order as  Saikuddin @ Wahajuddin), son of Abu Qais, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Rafey Siddiqui,Rehan Ahmad Siddiqui
 
Counsel for Respondent :- Govt.Advocate,Mohd. Haneef,R P Mishra
 
(7) Case :- CRIMINAL APPEAL No. - 1587 of 2008;
 
Appellant :- Abu Qais, son of Sirajuddin, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad at present District Ambedkar Nagar.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abdul Rafey Siddiqui
 
Counsel for Respondent :- Govt. Advocate,Mohd. Haneef
 
(8) Case :- CRIMINAL REVISION No. - 532 of 2008; 
 
Revisionist :- Syed Shabihul Hasan, son of Muneer Hasan, resident of Village Madaarpur, P.S.Ibrahimpur, District Faizabad, at present Ambedkar Nagar.
 
Opposite Party :- Fayyazuddin and 6 others
 
Counsel for Revisionist :- Mohd. Haneef
 
Counsel for Opposite Party :- Govt. Advocate,Firoz Ahmad Khan,Mohd.Mustafa Khan,Mohd.Tabrez Iqbal
 
			AND
 
(9) Case :- CRIMINAL APPEAL No. - 1651 of 2013
 
Appellant :- State Of U.P. (State Appeal)
 
Respondent :- Mahe Alam and 6 others
 
Counsel for Appellant :- G.A.
 
Counsel for Respondent :- Firoz Ahmad Khan,Mohd Tabrez Iqbal,Mohd. Mustafa,Nagendra Mohan
 
			-------
 
Hon'ble Prashant Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar Srivastava-II,J.)

1. Instant appeals and revision have arisen against the judgment and order dated 10.07.2008 passed by learned Additional Sessions Judge, Faizabad in Sessions Trial No.578 of 1995 arising out of Case Crime No.63/1995 P.S.Ibrahimpur, District Faizabad (presently District Ambedkar Nagar) whereby the learned trial court has acquitted accused, namely, Fayyazuddin and Israr Alam both sons of Mohammad Nazeer; Mahe Alam, Shamim Alam and Jamshed Alam, sons of Fayyazuddin, Mohd. Aslam and Mujubur Rehman both sons of Israr Alam of the offence punishable under Section 302 read with Section 149 I.P.C.; Section 307 read with Section 149 I.P.C., Sections 147 and 148 I.P.C.

2. Accused Islahuddin, Taufeeq [email protected] Kimmu; Salahuddin; Shamshad Alam @ Saimadh; Saifuddin @ Saikuddin; Wahajuddin @ Saikuddin @ Wahajuddin and Abu Qais were convicted under Section 302 I.P.C. read with Section 149 I.P.C. and sentenced to imprisonment for life and fine of Rs.10,000/- each with default stipulation of one year's rigorous imprisonment and under Section 307 read with Section 149 I.P.C. to ten years' rigorous imprisonment and fine of Rs.5,000/- each with default stipulation of six months' rigorous imprisonment and under Section 148 I.P.C. to one year's rigorous imprisonment. All the sentences were directed to run concurrently.

3. Feeling aggrieved accused Islahuddin has preferred Criminal Appeal No.1610 of 2008, Taufeeq [email protected] Kimmu Criminal Appeal No.1696 of 2008; Salahuddin Criminal Appeal No.1699 of 2008; Shamshad Alam @ Saimadh Criminal Appeal No.1582 of 2008; Saifuddin @ Saikuddin Criminal Appeal No.1608 of 2008; Wahajuddin @ Saikuddin @ Wahajuddin Criminal Appeal No.1609 of 2008 and Abu Qais Criminal Appeal No.1587 of 2008.

4. State of U.P. has preferred Criminal Appeal No.1651 of 2013 against acquittal of seven accused, namely, Fayyazuddin and Israr Alam both sons of Mohammad Nazeer; Mahe Alam, Shamim Alam and Jamshed Alam, sons of Fayyazuddin, Mohd. Aslam and Mujubur Rehman both sons of Israr Alam while complainant Syed Shabihul Hasan has preferred Criminal Revision No.532 of 2008.

5. Since all the appeals and revision have arisen against a single judgment, hence all the appeals and revision are being decided by this common judgment.

6. According to the prosecution, a first information report was lodged on 24.4.1995 at P.S. Ibrahimpur at 11:50 hours by the complainant-informant, namely Syed Shabihul Hasan stating that his nephew Ehteshamul Hasan, son of Shamimul Hasan had some altercation with Shamshad Alam @ Saimadh, son of Fayyazuddin on the date of election of Pradhan. Shamshad Alam @ Saimadh grudged animosity against Ehteshamul Hasan. On 24.4.1995 at about 11:00 A.M. complainant Shabihul Hasan along with his brothers Shamimul Hasan, Nasimul Hasan and nephew Ehteshamul Hasan was going to his Rice Mill (Hasan Brothers' Rice Mill) by jeep No.MH 06/C-3197, Iqbal Khan was driving the jeep. As soon as they crossed the Village market and reached on the northern pathway, a tractor trolley was standing obliquely on the road. When jeep was stopped by driver Iqbal Khan then Shamshad Alam @ Saimadh; Taufeeq Alam @ Kimmu, Shamim, Mahe Alam sons of Fayyazuddin; Fayyazuddin and Israr Alam, sons of Mohd. Nazeer; Chhote Miyan, Salahuddin; Islahuddin, Mohd. Aslam sons of Israr Alam; Jamshed Alam, son of Fayyazuddin, Abu Qais, son of Sirauddin; Saifuddin and Saikuddin, sons of Abu Qais fired upon the jeep from trolley by rifle and country made pistol. Shamimul Hasan and Ehteshamul Hasan succumbed to injuries at the spot while Nasimul Hasan and Iqbal sustained grievous injuries. Radhey Shyam and other persons came to the spot. Informant Syed Shabihul Hasan ran away from the scene of occurrence and lodged the first information report by submitting a written report.

7. First information report was registered at Case Crime No.63/1995 under Sections 147, 148, 149, 302, 307 I.P.C. Investigation was handed over to Sri M.L.Khan, Station House Officer of P.S. Ibrahimpur. On the same day at 1:50 P.M. medico-legal examination of Iqbal Khan was done by the emergency Medical Officer, District Hospital, Faizabad while medico-legal-examination of Nasimul Hasan was conducted at 2:00 p.m. at District Hospital, Faizabad. Inquest proceedings of Shamimul Hasan were conducted on 24.4.1995 which began at 12:15 P.M. and concluded at 13:45 P.M. in the precincts of police station while inquest proceedings of Ehteshmul Hasan were also conducted at the police station. Dead bodies of the deceased were sealed and sent for postmortem. Statement of injured Iqbal was recorded by the Investigating Officer on the same day. Injured Iqbal subsequently succumbed to the injuries on 24.4.1995. His dead body was also sealed and sent for post mortem.

8. On 24.4.1995 statement of Nasimul Hasan, son of Muneer Hasan was recorded by Ram Kewal Tewari, Tehsildar, Sadar between 5:45 P.M. and 5:55 P.M. after obtaining the necessary certificates form Doctor about fitness of mental and physical condition of the injured. Postmortem on dead body of Shamimul Hasan and Ehtamul Hasan and Iqbal were conducted on 25.4.1995. Site plan was prepared by the investigating officer. Broken glass of the jeep and empty cartridges were taken into possession. Plain and blood-stained earth were also taken into possession by the investigating officer. After investigation, charge sheet was submitted against the accused.

9. Accused Mahe Alam, Taufeeq, Shamim Alam, Shamshad Alam, Jamshed Alam, Mohd Aslam, Salahuddin, Islahuddin, Chhote Miyan @ Mujubur Rehman, Saifuddin and Saikuddin were charged under Section 302 read with Section 149 I.P.C.; Section 307 read with Section 149 I.P.C. and 148 I.P.C. while accused Fayyazuddin, Israr Alam and Abu Qais were charged under Section 302 read with Section 149 I.P.C.; Section 307 read with Section 149 I.P.C. and Section 147 I.P.C., who denied the charges and claimed trial.

10. In order to prove its case, prosecution has produced P.W.1 Nasimul Hasan (injured); P.W.2 Shabihul Hasan (complainant and informant); P.W. 3 Radhey Shyam Tiwari (eye witness); P.W. 4 S.I. Heera Lal Yadav; P.W. 5 Dr. Nand Lal Prasad, who had conducted postmortem on dead bodies of Ehteshamul Hasan and Shamimul Hasan on 25.4.1995; P.W. 6 Dr.B.K.Bhatia who had conducted postmortem on dead body of deceased Iqbal; P.W. 7 Dr. S. Misra who had conducted the medico-legal examination of injured Iqbal and Nasimul Hasan on 24.4.1995; P.W. 8 Head Mohrrir Raj Narain Singh, who had scribed the chik F.I.R., P.W.9 S.I. M.L.Khan, the first Investigating Officer; P.W. 10 Constable Rampal Tiwari, who had taken dead bodies of deceased Shamimul Hasan and Ehteshamul Hasan for postmortem; P.W. 11 Constable Dinesh Singh who had taken deceased Iqbal for postmortem and P.W. 12 S.I. Trilokinath Tripathi, formal witness of inquest, who had prepared police papers regarding the postmortem.

11. P.W.1 Nasimul Hasan is an injured eye witness, who has stated that on the date of incident he along with deceased Ehteshamul Hasan, Shamimul Hasan and P.W.2 Shabihul Hasan was going to their rice mill by jeep at about 11:00 A.M. Iqbal was driving the jeep. As soon as they reached near culvert, a tractor trolley was parked obliquely on the road. As soon as the jeep reached near the tractor trolley, all the fourteen accused persons started firing from the trolley by rifle and pistol which hit the windscreen of jeep. Driver Iqbal also got fire arm injuries. Thereafter, all the accused jumped from the trolley. Accused Fayyazuddin, Israr Alam and Abu Qais were armed with ''Lathi' while Shamshad Alam Wahajuddin were armed with sword, Taufeeq Alam and his brother Mahe Alam, Salahuddin, Mujubur Rehman and Saifuddin were armed with gun while Shamim, Islahuddin, Jamshed Alam and Mohd. Aslam were armed with country made pistol. Shabihul Hasan was sitting on the rear side of the jeep. He ran away towards southern side. Driver Iqbal could not escape from the jeep. Fayyazuddin and Abu Qais assaulted Shamimul Hasan by ''Lathi'. Shamshad Alam also assaulted Shamimul Hasan by sword. When Shamimul Hasan was about to fall on the ground Mujubur Rehman fired upon him by his gun. Ehteshamul Hasan was assaulted by country made pistol by Islahuddin; Saifuddin by gun, Wahajuddin by sword. P.W.1 Nasimul Hasan was assaulted by ''Lathi' by Israr Alam; Salahuddin by gun, Shamim and Mohd. Aslam by country made pistol. Taufeeq Alam and Mahe Alam fired upon Iqbal by gun while Jamshed Alam fired upon him by country made pistol. Accused ran away from the scene of incident. On hearing the sound, Radhey Shyam, Daya Ram, Syed Mohd. @ Laddan and others arrived at the spot. Gun of this witness was taken away by accused Taufeeq. This witness along with Iqbal and dead body of Shamimul Hasan and Ehteshamul Hasan was taken to the police station by jeep and car by Shabihul Hasan. Iqbal also succumbed to his injuries.

12. P.W.2 Shabihul Hasan is also an eye witness, who supported the prosecution version but he did not receive any injury. P.W. 2 Shabihul Hasan has stated that he was sitting in the jeep on the rear side when all the accused persons fired by gun and country made pistol. Driver Iqbal sustained gunshot injury. P.W. 2 Shabihul Hasan ran away from the place of incident and hid himself behind a mango tree. He did not saw the incident thereafter. Laddan and Radhey Shayam reached the spot. When the accused ran away from the spot, then P.W. 2 Shabihul Hasan reached at the spot and prepared the written report. He took the deceased, injured Iqbal and Nasimul Hasan to police station where the first information report was lodged.

13. P.W. 3 Radhey Shyam is an eye witness, who has supported the prosecution version and has stated that he has seen the incident wherein all the accused were firing by gun and country made pistol from the trolley. Some pellets hit Iqbal, who was sitting on driver seat of the jeep. All the accused jumped from the trolley and proceeded towards the jeep. Abu Qais and Fayyazuddin assaulted Shamimul Hasan by ''Lathi' while Shamshad Alam by sword. Mujubur Rehman fired upon Shamimul Hasan by gun. Islahuddin fired upon Ehteshamul Hasan by country made pistol; Saifuddin by gun; Wahajuddin attacked him by sword. Israr Alam assaulted Nasimul Hasan by ''Lathi' while Salahuddin by gun; Mohd Aslam & Shamim by country made pistol. Accused Mahe Alam and Taufeeq Alam fired upon Iqbal by gun while Jamshed Alam fired him by country made pistol. Accused Taufeeq also took with him the gun which was kept in the jeep.

14. P.W.9 S.I. M.L. Khan was posted as Station House Officer, P.S. Ibrahimpur on 24.4.1995. The case was registered in his presence. He took over the investigation. He recorded statement of complainant Shabihul Hasan and Iqbal at the police station. Iqbal was sent to Hospital at Akbarpur. He has conducted the inquest proceedings at the police station. Police papers and papers for postmortem were also prepared and dead bodies were sent for postmortem. Site plan was prepared by him on 25.4.1995, empty cartridges, ''tikli', broken glass etc. were taken into possession. Plain and blood stained earth were also taken into possession. Complete statement of Nasimul Hasan could not be recorded by him. Thereafter, investigation was transferred to S.I. Heera Lal Yadav. Iqbal was conscious and was fit to give statement which was recorded in the case diary.

15. P.W.4, Heera Lal Yadav is the second Investigating Officer who had recorded statement of injured Nasimul Hasan on 24.5.1995 in the Mahanagar Nursing Home, Lucknow. Thereafter, he submitted the charge sheet against the accused persons.

16. P.W.5 Dr. Nand Lal Prasad had conducted postmortem on dead body of Ehteshamul Hasan on 25.4.1995 at 10:30 A.M. and found the following ante mortem injuries on his body:

1. Incised wound 6 cm x 5 cm x skull depth on right side of forehead.

2. Gunshot pellets wound injuries in an area of upper both arms, both thighs and both legs - tattooing, blackening present.

3. Gunshot perforated wound on right side of chest 4 cm x 6 cm x whole dept of right chest - tattooing and blackening present, inverted margins 7 cm below from right nipple.

4. Penetrating wound on right Eliac Fossa 6 cm x 5.5 cm x whole depth of lower abdomen. Protrusin of a piece of large intestine.

According to opinion of the Doctor, seventh, eighth and ninth ribs on right side of chest were ruptured. Death was caused due to ante mortem injuries, shock and hemorrhage.

17. On the same day, at 9:00 A.M., post mortem of Shamimul Hasan was conducted and the following ante mortem injuries were found on the dead body of the deceased:

1. Incised wound on head longitudinally 18 cm x 8 cm x skull deep.

2. Penetrating wound 5 cm x 4 cm x whole depth of abdomen on right side 11 cm below from right nipple. Protrusin of large intestine.

3. Contusion 12 cm x 3 cm x on right flexor surface of right lower part of forearm.

4. Contusion 7 cm x 2 cm of left shoulder

5. Contusion on left shoulder 7 cm x 2 cm .

6. Contusion on right leg 4 cm x 4 cm just below right tibia fibular joint

According to opinion of the Doctor, cause of death was shock and hemorrhage due to ante mortem injuries.

According to opinion of the Doctor, death of the injured could have been caused on 24.4.1995 at about 11:00 A.M. Injury no.1 and 4 of Ehteshamul Hasan could have been caused by sword while injury no.2 and 3 could have been caused by gun. Injury no.1 and 2 of Shamimul Hasan could have been caused by sword while rest of the injuries could have been caused by ''Lathi'.

18. P.W. 6 Dr. B.K.Bhatia had conducted post mortem on dead body of Iqbal on 25.4.1995 at 2:30 P.M. and found the following ante mortem injuries on his body.:

1. Multiple fire arm pellet wound measuring 1.2 cm x .3 cm to .3 cm x . 5 cm on left side of scalp in an area of 18 cm x 10 cm, above 4 cm from left ear, depth up to the brain.

2. Fire arm pellet injuries on right arm on one-third upper side 0.2 cm x . 3 cm.

3. Abrasion 3 cm x . 5 cm on the spinal chord from L 2 to L3 region.

Left temporal bone was found fractured. Blood clot on cerebral Hemisphere. Ten pellets were recovered from the brain of the deceased. Injuries could have been caused by more than one fire. Injury no.1 could be received if the deceased was sitting. Injury no.3 could have been caused by friction.

19. P.W. 7 Dr. S. Misra has medically examined injured Iqbal on 24.4.1995 at 1:50 P.M. and found the following injuries on his body:

1. Gunshot wound . 2 mm diameter x bone deep, Haematona 4 cm x 3 cm on eye brow junction.

2. Gunshot wound .2 mm diameter x bone deep on left forehead, 1 cm above left eye brow medial end.

3. Multiple gunshot wound of . 2 mm diameter in area 15 cm x 11 cm on left side face and forehead

4. Multiple gunshot wound 0.2 mm diameter x bone deep in area of 15 cm x 8 cm on left side scalp 2 cm above left ear. Bleeding present.

5. Multiple gun shot wound 0.2 mm diameter on right palm which is muscle deep

X-ray was advised for all the injuries. These injuries could have been caused by fire arm and were fresh. Condition of the injured was serious. He was unconscious and admitted to hospital.

20. On the same day at 2:00 P.M. Nasimul Hasan was examined by him and following injury was found on his body:

1. Lacerated wound 26 cm x 10 cm x bone deep on front and left leg with multiple fractured bone. Tibia seen 1 cm below knee. Blackening around area of wound. Bleeding profusely. Bone protruding out. X-ray was advised.

2. Multiple gunshot wound in area 38 cm x 8 cm of 0.2 mm diameter x skin deep on left eye brow joint around and up to shoulder. X-ray was advised.

3. Gunshot wound 0.2mm diameter x skin deep on medial end of left clavicle.

4. Lacerated wound 6 cm x 1 cm x bone deep on right side scalp, 7 cm above right ear. X-ray was advised.

Injury no.4 could have been caused by hard and blunt objects while rest of the injuries could have been caused by fire arm. All the injuries were fresh. These injuries could have been caused on 24.4.1995 at 11:00 A.M.

Injuries of Iqbal was sufficient to cause death while injury no.1 of Nasimul Hasan was also sufficient to cause death. Injuries of Iqbal could have been caused by firing more than once. Injury no.1 of Nasimul Hasan could have been caused from a distance of 4 to 6 feet.

21. P.W. 8 Head Mohrrir Raj Narain Singh is a formal witness who has proved the chik F.I.R. and G.D. of registration of case. P.W. 10 Constable Rampal Tiwari, P.W.11 Constable Dinesh Singh and P.W. 12 S.I. Triloki Nath Tripathi are formal witnesses.

22. In the statement under Section 313 Cr.P.C. accused have stated that the statements have been falsely given. F.I.R. was lodged after deliberations. F.I.R. is ante-timed.

23. Accused Mahe Alam has taken the plea of alibi and stated that on the date of incident he was in Mumbai. On the date of incident he had a fight with Shamim and Siptan over property. He had lodged a report at P.S. Nagpara(Mumbai) on 24.4.1995 against Shamim and Siptan. They were arrested by police and were released on bail.

24. Accused Shamshad Alam has also stated that he has falsely been implicated as he is brother of Taufeeq Alam. His name is not Saimadh.

25. Accused Taufeeq Alam has stated that his cousin brother Irshad Alam was murdered. He lodged first information report against Israr Alam, Mohd. Aslam, Salahuddin & Mujubur Rehman. Trial was pending at the time of incident. Partition between Taufeeq Alam and Israr Alam had taken place long back. There was enmity due to the partition. Brother-in-law of Israr Alam, namely Faiz Alam was murdered wherein Taufeeq Alam and his brother were named as accused. His name is not Kimmu. He has falsely been implicated.

26. Accused Islahuddin has stated that he has falsely been implicated as he is younger brother of Mohd Aslam.

27. Accused Mohd. Aslam has stated that on the date of incident, he was residing in Mumbai where he has business. He had an altercation with Fayyazuddin on the date of incident. Fayyazuddin had lodged a report against him and Jamshed Alam on 24.4.1995 at P.S.Nagpara(Mumbai) wherein he and Jamshed Alam were arrested by the police and subsequently released on bail. He has falsely been implicated.

28. Accused Fayyazuddin has stated that he was in Mumbai on the date of incident. On 24.4.1995. Mohd. Aslam and Jamshed Alam had a fight with him. He lodged a report at P.S. Nagpara wherein they were arrested and subsequently released on bail.

29. Accused Shamim has also taken plea of alibi and has stated that on 24.4.1995 he and Mahe Alam had a fight. Police arrested him and Siptan. A report was lodged by Mahe Alam. He was fined Rs.100/-. A false report has been lodged against him in this case.

30. Accused Jamshed Alam has also taken plea of alibi. He stated that he is a taxi driver at Mumbai. On 24.4.1995 he had a fight with Fayyazuddin when Fayyazuddin lodged a report against him and Mohd. Aslam at P.S.Nagpara wherein they were arrested and later on released on bail.

31. Accused Salahuddin has stated that Irshad Alam was murdered before this incident wherein accused Salahuddin, his father and brothers were named as accused and were sent to jail. His ''Mama' Faiz Alam was doing Pairvi in this case. He was also murdered wherein Taufeeq Alam, Mahe Alam and Shamim Alam were accused. He and Fayyazuddin family has inimical relations. A false report has been lodged against him.

32. Accused Mujubur Rehman has also made the same statement. Accused Saifuddin, Israr Alam, Abu Qais, Whajuddin have also narrated the same facts in their statements under Section 313 Cr.P.C.

33. In defence, D.W. 1 Dr. A.K.Srivastava has stated that he examined Nasimul Hasan on 24.4.1995 at 17:48 hours and found him conscious and fit to give statement. Statement of Nasimul Hasan was recorded by Tehsildar Sadar, Ram Kewal Tiwari in his presence. At 17:55 hours, he also gave a certificate to the effect that the witness was mentally and physically fit to give statement.

34. D.W. 3 Ram Kewal Tiwari, the then Tehsildar recorded statement of Nasimul Hasan on 24.4.1995 and proved the same.

35. D.W.2 Jayant Ram Chandra Pardeshi, A.P.I. P.S. Cup Parade Police Station, Mumbai has stated that Fayyazuddin had given a complaint on 24.4.1995 at P.S.Nagpara which was registered as N.C.R. No.1255. It was moved against Mohd. Aslam, Ashud Alam and Jamshed Alam, who were summoned at the police station. A certificate regarding filing of N.C.R. was issued to Fayyazuddin.

36. NCR No.1256/1995 was entered by this witness. On 24.4.1995, accused Mahe Alam came to P.S. Nagpara at about 8:30 P.M. to register the report. The report was lodged against Shamim and Siptan, which was entered in the general diary of the police station at serial no.63. A constable was sent to arrest accused Shamim and Siptan, who reported at the police station that Shamim and Siptan have abused him at public place and also threatened him. A case under Section 110 of Bombay Police Act was registered. A fine of Rs.100/- each was imposed upon Shamim & Siptan, which was deposited by them.

37. D.W. 4 Mohd. Layak has stated that he is in the business of hiring taxis. Logbook is maintained by the concerned driver. Accused Jamshed Alam was driving his taxi on commission basis. He was maintaining the logbook. On 24.4.1995 at about 8:30 a.m. Jamshed Alam had taken taxi no.MRK 7668 and returned it at 7:30 p.m. on the same day. An entry to this effect was also made in the relevant register.

38. D.W. 5 Antony is General Secretary of Mumbai Taximen's Union, Mumbai. He has stated that on 24.4.1995, accused Jamshed Alam had taken Taxi no. MRK 7668 from its owner Mohd. Layak and returned it at 7:30 p.m. on the same day. A certificate to this effect was issued by him.

39. D.W. 6 Assistant Police Inspector Sri Krishna Avtar Gulab Singh Thakur has stated that he has registered N.C.R. No.1255/1995 on 24.4.1995 in his own hand writing and issued a receipt.

40. We have heard Sri Wazahat Hussain, learned counsel for appellant in Criminal Appeal No.1610 of 2008,  Sri Nagendra Mohan, learned counsel for appellant in Criminal Appeals numbered 1696 of 2008; 1699 of 2008; 1582 of 2008; 1608 of 2008; 1609 of 2008 & 1587 of 2008, Sri Umesh Verma, learned Additional Government Advocate for the State, Sri R.P.Mishra, learned counsel for the complainant-respondent, Sri Mohd. Haneef, learned counsel for the revisionist in Criminal Revision No.532 of 2008 and perused the record.

41. According to the prosecution version the incident occurred on 24.4.1995 at 11:00 a.m. wherein two persons, namely, Shamimul Hasan and Ehteshamul Hasan died at the spot while one Iqbal driver of the jeep sustained injuries and subsequently succumbed to the injuries. Nasimul Hasan, P.W. 1 also received injuries while P.W. 2 Shabihul Hasan who was also in the jeep did not receive any injury. He ran away from the place of incident and hid himself behind a mango tree. He is also the informant and complainant, who lodged the first information report at the police station at 11.50 a.m.

42. Learned counsel for the appellants, mainly, stressed their arguments on following points:

(i) First information report was lodged against 14 persons wherein the role of firing has been assigned to all the 14 persons. Two persons died at the spot while two received injuries. Out of them, one subsequently died but in the postmortem of deceased Shamimul Hasan, no gun shot injury was found, rather, one incised wound and one penetrating wound along with four contusions were found by the Doctor. In the postmortem of another deceased Ehteshamul Hasan, apart from pellet wound injuries, one incised wound along with one penetrating wound on right Eliac Fossa was found along with gun shot pellet wounds and one gun shot perforated wound. In the medico-legal examination report of Nasimul Hasan, apart from multiple gun shot wounds, one lacerated wound on right side of scalp was also found. According to opinion of the Doctor, this injury could have been caused by hard and blunt objects. Learned counsel submits that the genesis of the incident itself becomes doubtful as the weapon used, as stated in the first information report, did not co-relate with the nature of injuries received by deceased Shamimul Hasan and Ehteshamul Hasan coupled with the injuries of P.W. 1 Nasimul Hasan.

(ii) P.W.1 Nasimul Hasan has received injuries. He is an injured witness whose testimony carries much more weightage than statement of any other eye witness but at the same time statement of the injured witness must be reliable and trust worthy. Learned counsel for the appellants submits that when P.W. 1 Nasimul Hasan was brought to the Hospital in an injured condition, his statement was recorded by D.W. 3 Ram Kewal Tiwari, the then Tehsildar, Sadar, Faizabad. Mental and physical condition of this witness was found fit before and after recording his statement as per the certificates issued by D.W.1 Dr. A.K.Srivastava. In his statement, P.W.1 Nasimul Hasan has stated names of Kimmu, Sidha, brother of Viddhu and Saimadh who had fired upon him due to enmity. The incident took place on 24.4.1995 at 11:00 A.M. Learned counsel submits that although P.W.1 Nasimul Hasan has denied that he had given any statement to D.W.3 Ram Kewal Tiwari, the then Tehsildar but there was no occasion either for D.W.3 Ram Kewal Tiwari or D.W. 1 Dr. A.K.Srivastava to falsely depose against the prosecution or the witness. It is further submitted that this statement was withheld by the prosecution although it was well within the knowledge of prosecution that such a statement was recorded. It is submitted that at the time of hearing of the bail application before the Chief Judicial Magistrate, Faizabad, an application was moved by P.W. 2 Shabihul Hasan on 20.6.1995 that permission be granted for inspection of statement of Nasimul Hasan. Learned counsel further submits that the statement of P.W.1 Nasimul Hasan is not worth reliance as, in the initial statement recorded by the Tehsildar, he had named only three persons, while in the court he has named 14 accused persons. Further more, even the whole prosecution story is changed by P.W.1 wherein use of sword and ''Lathi' was also added by the witness. It is further submitted that the statement of P.W1 Nasimul Hasan would be read as a previous statement recorded under Section 164 Cr.P.C. as he survived after recording of his statement. His statement is admissible in evidence.

(iii) It is further submitted that statement of P.W.1 Nasimul Hasan was recorded by the investigating officer, P.W. 4, Hira Lal Yadav on 24.05.1995 at Mahanagar Nursing Home, Lucknow while P.W. 1, Nasimul Hasan was present at the time of lodging of the first information report but his statement was not recorded by the investigating officer. Although the first investigating officer P.W. 9 S.I. M.L. Khan had stated that he made an attempt to record the statement of P.W.1 Nasimul Hasan but his family members did not allow him to record his complete statement. Then he could only record his statement to the effect that Nasimul Hasan asked him about the condition of his relatives in the jeep and he also stated that his gun was taken away by accused Taufeeq Alam. P.W. 4 S.I. Heera Lal Yadav has tried to explain the delay in recording the statement which is not a satisfactory explanation. The story is developed after a month of the incident, which is not trust worthy and reliable.

(iv) It is further submitted that the presence of P.W. 2 Shabihul Hasan is doubtful at the place of incident. P.W. 2 Shabihul Hasan's presence could not be established by the prosecution. According to the prosecution version, indiscriminate firing was being made by 14 accused persons who were armed with gun, pistol etc. P.W. 2 Shabihul Hasan was also present in the same jeep wherein the deceased and injured were sitting but P.W. 2 did not receive any single injury in the incident. He ran away from the jeep and hid himself behind a mango tree. He covered distance of about 150 steps. All the accused saw him running but nobody followed him, rather, all the accused spared him unhurt. This story itself is doubtful as when 14 persons, allegedly, armed with deadly weapons have caused murder of three persons then they will not allow P.W.2, Shabihul Hasan to run away from the spot, that too, only about distance of 150 steps.

(v) P.W.2 Shabihul Hasan is also the informant-complainant. In the first information report, he has specifically mentioned the use of fire arms but as per the prosecution version there were also injuries of sword and ''Lathis'. If P.W. 2 Shabihul Hasan was present at the spot and saw the incident, then there was no reason as to why the weapons sword and ''Lathi' were not mentioned in the first information report. It means that the genesis of the incident, in the presence of P.W.2, Shabihul Hasan at the spot, becomes highly doubtful. It is further submitted that the first information report is ante-timed. According to statement of P.W.1 Nasimul Hasan and P.W. 3 Radhey Shyam, they had no conversation with P.W. 2, Shabihul Hasan till he lodged the first information report. P.W. 2 Shabihul Hasan has stated that when he ran away from the place of incident and hid himself behind a tree, then he did not see as to what was happening at the spot.

(vi) It is further submitted that the statement of Iqbal deceased recorded by the investigating officer is highly doubtful. No such statement was given by Iqbal. It is submitted that as per the statement of P.W. 7 Dr. S. Misra, who medico-legally examined Iqbal at 1:50 P.M. on 24.4.1995, Iqbal was unconscious at the time of incident. P.W. 8 Head Constable Raj Narain Singh is the scribe of chik F.I.R. and G.D. of registration of case. He has stated that when Iqbal was brought to the police station, he was unconscious. Learned counsel submitted that the statement of Iqbal is highly doubtful.

(vii) It is further submitted that the learned trial court has disbelieved the testimony of P.W. 3, Radhey Shyam, who is a chance witness as well as inimical witness. His statement does not inspire confidence and is not reliable. His presence at the spot is highly doubtful.

(viii) It is further submitted that although it is a case of direct evidence but a motive has been alleged in the first information report regarding some altercation between Ehteshamul Hasan and Shamshad Alam @ Saimadh-accused on the date of election of Pradhan wherein wife of P.W. 3 Radhey Shyam was contesting from one side while some other lady was contesting from the other side, who was being supported by the accused. This development was made during trial wherein it is stated that on the date of election, Ehteshamul Hasan was beaten by Shamshad Alam @ Saimadh along with other co-accused, which was the cause of dispute. Apart from aforesaid motive, an additional motive was invoked regarding dispute of loss of certain electrical goods. Learned counsel for the appellants submits that although the motive has been specifically alleged by the prosecution but the same could not be proved, rather, according to P.W. 1 Nasimul Hasan and P.W. 2 Shabihul Hasan, they were having normal relations with the accused. There was no enmity between them. In such circumstances, when there was no enmity between the accused, complainant or the deceased, then what was the occasion for the accused to commit such a gruesome crime wherein three persons were killed and one was injured. It is submitted that the incident had taken place in some other manner, which is not seen by any of the witnesses and the accused have falsely been implicated.

(ix) It is further submitted that the learned trial court has rightly accepted the plea of alibi of co-accused Fayyazuddin, Mahe Alam, Shamim, Jamshed Alam and Mohd. Aslam. Learned trial court has also rightly acquitted the accused Israr Alam and Mujubur Rehman as the role of causing of one injury only by ''Lathi' to Nasimul Hasan by Israr Alam could not be proved. Likewise, no fire arm injury was found on the body of Shamimul Hasan, while according to the prosecution, accused Mujubur Rehman had fired upon Shamimul Hasan. Hence, acquittal of the accused persons could not be disturbed in appeal.

43. Per contra, learned Additional Government Advocate as well as learned counsel for the complainant submits that the prosecution has successfully proved the case against the accused beyond reasonable doubt. The first information report is not ante-timed. After registering first information report, the inquest proceedings were conducted wherein crime number is mentioned in the inquest report. It is further submitted that the statement of P.W. 1 Nasimul Hasan proves the prosecution version. His statement was not recorded by D.W. 3 Ram Kewal Tiwari, the then Tehsildar, Sadar, Faizabad as no intimation was sent by the Doctor to the concerned Magistrate for recording the dying declaration of the injured. It is further submitted that even if it is accepted that the statement was recorded then the statement of P.W. 1 Nasimul Hasan was with regard to the incident sofar as it relates to himself and not about the whole incident. He has placed reliance upon the decision of Hon'ble the Supreme Court in Veer Singh and others v. State of Uttar Pradesh, reported in (2014) 2 SCC 455. It is further submitted that P.W. 1 Nasimul Hasan has given a categorical statement about the weapons used by different accused persons which caused injuries to the deceased and P.W. 1 Nasimul Hasan-injured himself. P.W. 1 Nasimul Hasan was in a condition of shock at the time of giving his statement. Hence, even if there is some discrepancy in his statements that would not affect the prosecution case. It is further submitted that the delay in recording the statement of P.W. 1 Nasimul Hasan by the investigating officer does not adversely affect merit of the case as it is a fault on part of the investigating officer. It would be a case of defective investigation which did not touch the root of the matter.

44. First information report was lodged by P.W. 2 Shabihul Hasan on 24.4.1995 at 11:50 A.M. The incident occurred on the same day at 11:00 A.M. Admittedly, in the first information report, it is mentioned that as soon as driver of the jeep stopped the jeep, Shamshad Alam @ Saimadh; Taufeeq Alam @ Kimmu, Shamim, Mahe Alam sons of Fayyazuddin; Fayyazuddin and Israr Alam, sons of Mohd. Nazeer; Chhote Miyan, Salahuddin; Islahuddin, Mohd. Aslam sons of Israr Alam; Jamshed Alam, son of Fayyazuddin, Abu Qais, son of Sirajuddin; Saifuddin and Saikuddin, sons of Abu Qais, who were armed with gun and pistol started indiscriminate firing from the trolley attached with the tractor. They were shouting that "MAAR DAALO, KOYI BACHNE NA PAYEN". Specific case of firing was taken by the prosecution in the first information report, which was lodged at 11:50 A.M., i.e. just after 50 minutes of the incident while the distance of the police station from the place of incident is three kilo meters. It is a hand written report. Shamimul Hasan and Ehteshamul Hasan, who were father and son, died at the spot. P.W. 5 Dr. Nand Lal Prasad had conducted the postmortem on dead body of Ehteshamul Hasan on 25.4.1995 at 10.30 a.m. According to the statement of Doctor, he found four injuries on the body of Ehteshamul Hasan wherein injury no.1 and 4 could have been caused by sword while injuries no. 2 and 3 could have been caused by gun and country made pistol. On the same day postmortem of Shamimul Hasan was also conducted wherein six injuries were found, out of which injuries 1 and 2 could have been caused by sword while rest of the injuries 3 to 6 could have been caused by ''Lathi' .

45. Now it is to be seen as to how injuries shown to have been caused by sword and ''Lathi' were explained by the prosecution and what would be the effect of these injuries?

46. In Bhajan Singh @ Harbhajan Singh and others v. State of Haryana reported in (2011) 7 SCC 421, the view taken in Abdul Sayeed v. State of M.P., reported in (2010) 10 SCC 259 has been relied wherein it is held that the position of law in a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

47. The same view was taken by the Apex court in State of U.P. v. Hari Chand reported in (2009) 13 SCC 542 wherein it was held that "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

48. It is also settled legal position that the statement of injured witness has to be adjudged and should be relied upon unless there are grounds for rejection of the evidence on the basis of major contradictions and discrepancies therein. It has been held in paragraph 36 of the report in Bhajan Singh (Supra) as under :

"36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Abdul Sayeed v. State of M.P. [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; Kailas v. State of Maharashtra [(2011) 1 SCC 793 : (2011) 1 SCC (Cri) 401] ; Durbal v. State of U.P. [(2011) 2 SCC 676 : (2011) 1 SCC (Cri) 877] and State of U.P. v. Naresh [(2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216] .)"

49. In the case of Bhajan Singh (Supra), so far as the statement of P.W.9 Triloki Singh and P.W. 10 Ajaib Singh was concerned, P.W. 10 Ajaib Singh was an injured witness. There was certain discrepancy about the seat of injuries which did not find favour from the trial court, High Court and the Apex court. Accordingly, such a minor discrepancy about the seat of injury could not make out a case to disbelieve the testimony of the injured witness(P.W.10) Ajaib Singh.

50. In the present case, the situation is different. Two persons died at the spot. Out of them, one Shamimul Hasan did not receive any gun shot injury, rather, he received two injuries of sword and four injuries of ''Lathi' while the other deceased Ehteshamul Hasan received four injuries out of which two were of sword and two were of gun shot. In such circumstances, now it is to be seen as to whether the statements of P.W. 1 Nasimul Hasan(injured) and P.W.2 Shabihul Hasan(informant) could be believed or not?

51. P.W.1 Nasimul Hasan is the injured witness in the incident. His testimony has to be scrutinised scrupulously as there is a variation in nature of injuries sustained by the injured as well as the deceased and the weapons used and mentioned in the first information report. First statement of P.W.1 Nasimul Hasan was recorded by D.W.3 Ram Kewal Tiwari, the then Tehsildar on 24.4.1995 which began at 5:48 p.m. and concluded at 5:55 p.m. The following statement was recorded:

"iwNus ij viuk uke ufleqy glu s/o equhj glu fuoklh enkjiwj Fkkuk bczkfgeiqj QSstkckn crk;kA ?kVuk ds lEcU/k esa crk;k fd vkt fnukad 24-4-1995 dks fnu esa yxHkx 11-00 cts thi ls bYrQkgxat geyksx tk jgs FksA xkWao ds ckgj fdEeq fon~nw ds HkkbZ lh/kk ,oa lSekM lHkh fuoklh enkjiwj us esjs ऊij xksyh pyk nh ,oe~ eSa ?kk;y gks x;kA gekjh buyksxksa ls igys ls nq'euh py jgh FkhA"

A certificate was appended by Dr.A.K.Srivastava, P.W.1 before and after recording of the statement to the effect that the witness was in a fit condition to give his dying declaration. After recording of the statement, a certificate was also issued by D.W.1 Dr.A.K.Srivastava that, during his statement, the witness was fully conscious and fit. This certificate is duly proved by D.W.1 Dr.A.K. Srivastava in his statement. D.W.3 Ram Kewal Tiwari was posted as Tehsildar, Sadar, Faizabad on 24.4.1995 and has deposed that he recorded the statement of Nasimul Hasan. He went to the hospital to record the statement on the basis of a memo of the District Hospital received through police. The statement was recorded as given by the witness. It is held by Hon'ble the Supreme Court in Sunder Singh v. State of Uttaranchal reported in (2010) 10 SCC 611 that the statement recorded by the Magistrate after satisfying himself that the injured was in a fit position to make a dying declaration that such a statement is believable. It was held by the Constitution Bench of Apex Court in Laxman v. State of Maharashtra reported in (2002) 6 SCC 710 that "The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise."

52. D.W.3 Ram Kewal Tiwari, the then Tehsildar, Sadar, Faizabad and D.W.1 Dr.A.K.Srivastava are public servants who recorded the statements and given the certificate in discharge of their duties as public servants. There was no occasion for them to depose falsely against the prosecution while they had no animus against the prosecution. D.W.3 Ram Kewal Tiwari has recorded the statement in discharge of his official duty. Our attention was drawn towards the fact where P.W. 7 Dr.S.Misra has stated that information regarding recording of dying declaration is sent by the Doctor, who is treating the patient in the ward. No suggestion was even given to Dr. S.Misra (P.W.7) that he has not sent any requisition for recording the dying declaration of Nasimul Hasan. But one fact is established that the statement of Nasimul Hasan was recorded by D.W.3 Ram Kewal Tiwari after obtaining the fitness certificate from D.W.1 Dr.A.K.Srivastava. An attempt has been made by the prosecution to conceal the document which was in their possession. P.W. 1 Nasimul Hasan has stated that no such statement was given by him but this statement is falsified on the ground that the statement was well within the knowledge of prosecution. An application was moved by P.W. 2, Shabihul Hasan before the Chief Judicial Magistrate, Faizabad at the time of hearing of the bail application for permission to inspect the statement. This fact is not denied by P.W. 2 Shabihul Hasan.

53. P.W.1 Nasimul Hasan survived after giving his statement. Now the nature of the statement of P.W.1 Nasimul Hasan would change. It would not be a dying declaration, rather, it would be in the nature of a previous statement given by P.W.1 Nasimul Hasan before D.W.3 Ram Kewal Tiwari, the then Tehsildar, which can be used for the purposes of corroboration under Section 157 of the Indian Evidence Act as has been held by the Hon'ble Apex Court in Sunder Singh(Supra).

54. In the statement recorded by D.W. 3 Ram Kewal Tiwari, P.W. 1 Nasimul Hasan has specifically stated that Kimmu, Sidha (brother of Viddhu) and Saimadh had fired upon him due to enmity. In the first information report, it is stated that all the fourteen accused indiscriminately fired by gun and pistol upon the deceased and the injured from the trolley. At this stage, statement of P.W.1 Nasimul Hasan attains importance wherein he has stated that he has not given any details of the incident to P.W. 2 Shabihul Hasan, who had lodged the first information report. In the statement an improvement is made that Accused Fayyazuddin, Israr Alam and Abu Qais were armed with ''Lathi', Shamshad Alam and Wahajuddin were armed with sword, Taufeeq Alam and Mahe Alam, Salahuddin, Mujubur Rehman and Saifuddin were armed with gun while Shamim, Islahuddin, Jamshed Alam and Mohd. Aslam were armed with country made pistol. Fayyazuddin and Abu Qais assaulted Shamimul Hasan by ''Lathi' while Shamshad Alam attacked him by sword. As soon as he was falling down on earth, due to the injuries sustained, Mujubur Rehman fired upon him by his gun. Ehteshamul Hasan was attacked by Islahuddin by country made pistol; Saifuddin by gun and Wahajuddin by sword. P.W.1 Nasimul Hasan himself was attacked by Israr Alam by ''Lathi'; Salahuddin by gun, Shamim and Mohd. Aslam by country made pistol. Driver Iqbal was attacked by Taufeeq Alam and Mahe Alam by gun and Jamshed Alam by country made pistol. A categorical statement about weapons used by different accused for assaulting different deceased as well as the injured-P.W.1 Nasimul Hasan has been made by P.W.1 Nasimul Hasan. It is also relevant that P.W. 1 Nasimul Hasan is an Advocate. He is not an illiterate person. Another statement of P.W.1 Nasimul Hasan was recorded by the investigating officer on 25.4.1995 wherein P.W.1 Nasimul Hasan has given the statement to the effect that he asked about the wellbeing of his relatives, who were in the jeep and also told that his gun was taken away by Taufeeq. It is also admitted by P.W. 1 that as soon as firing began, his brother Shabihul Hasan left the jeep. Radhey Shyam neither accompanied them to the police station nor met him at the police station. P.W.1 Nasimul Hasan stayed at the place of incident for 10-15 minutes wherein he has not informed anyone as to how his brother, nephew and driver have been killed. Names of the assailants were told by him to the investigating officer at a Nursing Home at Lucknow for the first time after one month of the incident. Statement of this witness was recorded by the investigating officer after a month at Mahanagar Nursing Home, Lucknow wherein names of the accused along with weapons used by them were stated by him to P.W. 4 S.I. Heera Lal Yadav. P.W.1 Nasimul Hasan had gone to the police station after the incident. First information report was lodged by P.W. 2 Shabihul Hasan wherein there is no description of either sword or ''Lathi'. The manner of assault in the first information report is entirely different from the story as narrated by P.W. 1 Nasimul Hasan-injured. At this stage, we would also like to refer and scrutinise the statement of P.W. 2, who is the informant and complainant.

55. P.W. 2 Shabihul Hasan was also accompanying injured and deceased in the jeep. P.W. 2 Shabihul Hasan has stated that as soon as jeep stopped, the accused-persons fired by gun and pistol upon the jeep from the trolley. Fire hit driver Iqbal who fell down on the steering while the deceased Ehteshamul Hasan and Shamimul Hasan along with injured P.W.1 Nasimul Hasan jumped from both sides of the jeep. P.W. 2 was sitting on backside of the jeep. So, he ran away and hid himself behind a mango tree. Thereafter, he did not see the incident.

56. Learned counsel for the appellants submits that the presence of P.W. 2 Shabihul Hasan at the place of occurrence is doubtful. P.W. 2 Shabihul Hasan has admitted that he did not sustain any injury in the incident while the mango tree was about 100-125 steps from the jeep. P.W. 5 Dr. Nand Lal Prasad, who has conducted the postmortem of deceased Shamimul Hasan and Ehteshamul Hasan, has found gun shot injuries on body of Ehteshamul Hasan while no gun shot injury was found on body of Shamimul Hasan. According to the Doctor, fire arm injuries of Ehteshamul Hasan could have been caused from a distance of about six feet. It shows that when the injuries were caused to the deceased or the injured, the assailants were very much nearer to them. According to P.W. 1 Nasimul Hasan, the deceased and injured jumped towards both sides of the jeep, which shows that they were not far away from the jeep. It also clearly makes out a situation that the assailants were also very nearer to the jeep. According to P.W. 2 Shabihul Hasan, when the firing started he jumped from the jeep and ran away for about 100-125 steps to hide himself behind a mango tree. The place of incident is an open place where any person running from the jeep could very well be seen by the assailants. It means that when P.W. 2 Shabihul Hasan jumped from the jeep and ran away to cover distance of 100-125 steps and the accused were close to the jeep, then, they must have seen P.W. 2 Shabihul Hasan running from the place of incident but none of the accused, who were armed with gun, pistol and other sharp edged and blunt weapons, made any attempt to stop P.W. 2 Shabihul Hasan or to cause him injury but they allowed him to run away from the place of incident. They left him unhurt so that he may be able to depose against them. It is quite unnatural and unbelievable that when fourteen persons, who were armed with deadly weapons, have committed murder of three persons during broad day light at 11:00 A.M., they will leave P.W. 2 Shabihul Hasan unhurt. Absence of any injury or any attempt by the accused to cause any harm to P.W. 2 Shabihul Hasan itself raises doubt about his presence at the place of incident.

57. P.W. 2 Shabihul Hasan is the informant and complainant, who lodged the first information report at the police station after submitting a written report. A detailed description of the names coupled with parentage of the accused is mentioned in the written report which was lodged at 11:50 A.M., i.e. just after 50 minutes of the incident. Genesis of the incident and the manner of assault itself becomes highly doubtful in this case. P.W. 2 Shabihul Hasan has stated that when he went behind the mango tree, thereafter, he did not see the incident which shows that as soon as firing started, he jumped from the jeep and ran away towards the mango tree. His back was on the side of the jeep. He had no occasion to see the whole incident. P.W.1 Nasimul Hasan has stated that he has not given any description of the incident to P.W. 2 Shabihul Hasan, while P.W. 3 Radhey Shyam has also stated that he had no talks about the incident with P.W. 2 Shabihul Hasan. At this stage, the nature of the injuries of the deceased Ehteshamul Hasan and Shamimul Hasan attains importance. Shamimul Hasan has not received any fire arm injury while Ehteshamul Hasan has received injury no. 1 and 4 by sword. P.W. 2 Shabihul Hasan has stated in the written report that the injuries were caused by fire arms. Although, first information report is not a substantive piece of evidence, informant himself could only be contradicted with the statement made in the first information report but at the same time, if there is challenge to the genesis of the incident and the manner of assault, then the statement of informant coupled with written report and statement of injured eye witness have to be looked into collectively. There is no dispute on the point about the cause of death of deceased Ehteshamul Hasan and Shamimul Hasan. P.W. 5 Dr. Nand Lal Prasad has not been declared as hostile, which shows that since injuries of sharp-edged weapons were also found on bodies of the deceased, in such a situation, statement of P.W. 2 Shabihul Hasan becomes highly doubtful. Even if it is accepted that he hid himself behind a mango tree but it cannot be accepted that his own brother and nephew were being killed and he did not see or make attempt to see the incident. There is contradiction in his statement wherein it is stated that some of the accused started firing from the trolley while in first information report, it is specifically stated that all the accused started firing from the trolley. The same statement was given by the witnesses to the investigating officer. It is also admitted by P.W. 2 Shabihul Hasan that he had no talk with P.W. 3 Radhey Shyam at the spot. Even he had no talk with Nasimul Hasan before giving his statement to the investigating officer. P.W. 2 Shabihul Hasan remained behind the mango tree for about 20-25 minutes but no accused came there during this period. This statement itself creates doubt about his presence at the spot. It is unbelievable that 14 accused-persons armed with deadly weapons have spared the witness P.W. 2 Shabihul Hasan unhurt. They all have seen him running from the jeep towards the mango tree, who had seen the incident but all the accused spared him without causing any injury. This is a strong circumstance to disbelieve the presence of P.W. 2 Shabihul Hasan at the spot.

58. Presence of P.W. 2 Shabihul Hasan at the spot could not be established by the prosecution. Manner of assault and genesis of the incident could also not be established by the statement of P.W. 2 Shabihul Hasan.

59. Now we have to examine the veracity and truthfulness of the statement of P.W. 1 Nasimul Hasan. At the very outset, there are material inconsistencies and contradictions in the prosecution version as well as the medical evidence. Statement of P.W. 1 Nasimul Hasan is not consistent with the prosecution case, from the very beginning. He has taken inconsistent pleas regarding manner of assault. In the statement recorded by D.W. 3 Ram Kewal Tiwari, Tehsildar, P.W. 1 Nasimul Hasan has stated the names of three persons, namely Kimmu, Sidha and Saimadh, who have assaulted him. In the statement before the trial court, he has stated that he was assaulted by Israr Alam by ''Lathi'; Salahuddin by gun, Shamim and Mohd. Aslam by country made pistol. Names of the accused who have assaulted P.W. 1 Nasimul Hasan are changed in the statement recorded under Section 164 Cr.P.C. and before the learned trial court. Before the learned Magistrate, names of Kimmu, Sidha and Saimadh were given by P.W. 1 Nasimul Hasan but in the statement in Court, names of Shamim, Israr Alam, Salhuddin and Mohd. Aslam were taken. It means that P.W. 1 Nasimul Hasan was not definite as to who had caused injuries to him. In the first information report, there is no mention of causing injuries by ''Lathi' or sword. As has been held in earlier part of the judgment, statement recorded by D.W. 3 Ram Kewal Tiwari, Tehsildar could not be disbelieved, rather, defence has proved that the statement was given by P.W. 1 Nasimul Hasan, which was duly recorded by D.W. 3 Ram Kewal Tiwari, Tehsildar. After the statement was recorded by D.W.3, Ram Kewal Tiwari, Tehsildar, investigating officer has recorded the statement of injured P.W. 1 Nasimul Hasan at Mahanagar Nursing Home, Lucknow on 24.5.1995, i.e., after a month of the incident. Prosecution has made an attempt to explain the inordinate delay in recording the statement of the injured witness by the investigating officer. P.W. 9 S.I. M.L. Khan was the first investigating officer, who has stated that he has recorded the statement of P.W. 1 Nasimul Hasan at the police station when F.I.R. was lodged. The case was registered in his presence. Interestingly, P.W. 9 S.I. M.L. Khan has stated that he began the investigation on 25.4.1995 at 00.5 A.M. while the inquest reports were prepared on 24.4.1995 at 1:50 P.M. and 2:00 P.M. Even Iqbal succumbed to injuries on 24.4.1995. It is also stated by P.W. 9 S.I. M.L.Khan that only a short statement of P.W. 1 Nasimul Hasan was recorded by him as his attendants did not allow him to speak. P.W. 1 Nasimul Hasan has only asked him about Shamimul Hasan and Ehteshamul Hasan and also told him about the fact that Taufeeq ran away with his gun. Thereafter the injured was sent for medico-legal examination.

60. P.W. 4 S.I. Heera Lal Yadav is the second investigating officer, who has recorded the statement of injured P.W. 1 Nasimul Hasan on 24.5.1995 at Mahanagar Nursing Home, Lucknow wherein P.W. 1 Nasimul Hasan has given the detailed description of the incident. An explanation was given by P.W. 4, S.I. Heera Lal Yadav about the delay in recording the statement that he was busy in tracing the accused. Injury report was received by the investigating officer on 28.4.1995. Even then he did not make any attempt to record the statement of the injured. Investigating officer has gone to the extent of saying that, during investigation, he did not come to know that the dying declaration of P.W. 1 Nasimul Hasan was recorded by the Magistrate.

61. An attempt is made by the leaned Additional Government Advocate to cover up the delay and submitted that mere delay in recording the statement of injured witness could not be a ground to disbelieve the prosecution story. Learned Additional Government Advocate has placed reliance upon the decision in Ranbir and others v. State of Punjab reported in 1973 SCC (Cri) 858. In that case, statement of P.W. 7 Tota Ram was recorded by the investigating officer with delay. It was argued before the Apex court that Tota Ram (P.W.7) was examined by the police after considerable delay, the suggestion being that his evidence must be looked at with suspicion. It was held by Hon'ble the Supreme Court that - "the fact of delayed examination of Tota Ram should, in our opinion, have been put to the investigating officer so as to enable him to explain the undue delay, if any, in examining Tota Ram. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefor."(emphasis supplied)

62. It was held by the Apex court in Dr. Krishna Pal and another v. State of U.P. reported in 1996 SCC (Cri) 249 that - "In the instant case, no explanation has been given by the prosecution as to why eye witnesses had not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eye witnesses. But simply on that account, the convincing and reliable evidences adduced in this case should not be discarded." Hon'ble the Supreme Court has referred to Karnel Singh v. State of M.P. reported in (1995) 5 SCC 518 wherein it was held that in a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.

63. In the case at hand, an explanation was sought from the Investigating Officer, P.W 4 Heera Lal Yadav regarding the delay in recording the statement of injured P.W.1 Nasimul Hasan while he received the injury reports of Iqbal and P.W.1 Nasimul Hasan on 28.4.1995 and thereafter he received the postmortem reports of Ehteshamul Hasan and Shamimul Hasan. It is admitted by him that he did not go to District Hospital, Faizabad on 25.4.1995 to record the statement of injured Nasimul Hasan. He made an attempt to explain the delay by stating that since Nasimul Hasan (P.W. 1) was admitted in Lucknow, so he could not record his statement as he did not find time. It is also admitted by Investigating Officer, P.W. 4 Heera Lal Yadav that in the initial statement Nasimul Hasan had not given any eye witness account of the incident. Defective investigation is entirely a different aspect of the criminal administration of justice. Investigation is an integral part of criminal case which should have been done by the Investigating Officer in accordance with the procedure prescribed in Code of Criminal Procedure and the Police Manual. Law nowhere permits the Investigating Officer to stretch the provisions of law in accordance with his own convenience. In Ranbir(supra), it was held by the Apex court that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. The Investigating Officer is under a legal obligation to record the statement of the injured witness at the first available opportunity. It may so happen, in some cases, that there may be some delay but the delay must be explained by the Investigating Officer. A simple statement that he did not find time to record the statement of injured witness, who is the sole witness in the case, could not be held as sufficient ground in recording the statement with inordinate delay of one month. P.W. 4 S.I. Heera Lal Yadav, Investigating Officer could not have explained satisfactorily the reasons for not recording the statement of P.W.1 Nasimul Hasan. Delay in recording the statement of P.W. 1 attributes motive against P.W. 4 S.I. Heera Lal Yadav and the delay could not be taken as a part of the defective investigation.

64. The statement of P.W. 1 could not be believed as he has given different statements at different stages. Even names of the assailants who have caused injuries to him have been changed. The manner of assault and genesis of the incident is also changed. When the statement of P.W.1 Nasimul Hasan was recorded by D.W. 3, Ram Kewal Tiwari, Tehsidar, P.W.1 Nasimul Hasan has not stated names of all the accused. Even the weapons used, i.e. sword and ''Lathi' were also not stated while, according to the statement of D.W.1 Dr. A.K.Srivastava, the witness P.W.1 Nasimul Hasan was in a fit state of physical and mental condition. Although P.W.1 Nasimul Hasan has denied that he had given any such statement but it has been proved that the statement was given by P.W.1 Nasimul Hasan which was duly recorded by D.W.3 Ram Kewal Tiwari, Tehsildar after obtaining certificate from D.W. 1 Dr. A.K.Srivastava before and after recording the statement about the mental and physical fitness of the witness for giving the statement. At this stage, learned Addtiional Government has placed reliace upon the decision of Hon'ble the Supreme Court in Veer Singh and others v. State of Uttar Pradesh, reported in (2014)2 SCC 455 wherein the facts were entirely different.

65. In the aforesaid Veer Singh's case, family members of injured witness Harbans Kaur - daughter Rano, daughter-in-law Bhajan Kaur, sons Kulvendra, Gurpreet Singh, Jassa Singh and Joginder Singh were killed. It was held by the Apex court that in fact P.W. 4 Harbans Kaur in her testimony before the Court has clearly stated as to why she has given a limited answer to the Magistrate. In the aforesaid matter, the Magistrate had recorded her statement in question-answer form. Only one question was asked as to how she sustained the injuries? Then, she told that she was shot by Surender Singh in the presence of other sons of Kartar Singh. In such situation the Apex court has held that - "In fact P.W. 4 Harbans Kaur in her testimony before the court has clearly stated as to why she has given a limited answer to the Magistrate. This statement did not relate to the entire occurrence." It was further observed that it must be borne in mind that she had witnessed the brutal murder of all her family members by the appellants and other accused during the occurrence and when she was in a state of shock in the hospital she had given answer to the question put up by the Magistrate.

66. In the present case, the situation is entirely different. P.W. 1 has not given any explanation as to why he has given a short statement, rather, he denied to have given any such statement before the Magistrate while D.W. 3 Ram Kewal Tiwari, Tehsildar has specifically stated that the statement was recorded in the form given by the witness. He asked the questions and recorded the answers given by the witness. In such circumstances the case law of Ranbir(Supra) would not be applicable to the facts of the present case. Hence, there is a contradiction, rather, omission in the statement of P.W.1 Nasimul Hasan from the very initial stage, i.e. recording of the statement by the Magistrate.

67. P.W.1 Nasimul Hasan was mentally and physically fit to depose before the Magistrate as well as the Investigating Officer. The reason assigned by P.W. 9 S.I. M.L.Khan for non-recording of the statement under Section 161 Cr.P.C. of P.W.1 Nasimul Hasan could not be believed. When P.W.1 Nasimul Hasan was in a fit mental state to ask about the wellbeing of his brother and nephew and also to the fact that Taufeeq had taken away his gun from the jeep, then his statement under Section 161 Cr.P.C. should have been recorded by the Investigating Officer. Non-recording of the statement of P.W. 1 Nasimul Hasan coupled with the fact that the statement was recorded by D.W.3, Ram Kewal Tiwari, Tehsildar explicitly shows that the statement which was recorded by P.W. 4 S.I. Heera Lal Yadav after one month of the incident is an improvement which was made by the witness and the investigating officer after receipt of the medico-legal examination reports as well as the postmortem reports. Manner of assault has been entirely changed.

68. P.W.1 Nasimul Hasan has stated that he was assaulted by Shamim, Salahuddin & Mohd. Aslam, who fired upon him. He has not stated name of Israr Alam. Shamimul Hasan had received injuries by sword and ''Lathi' only but P.W.1 Nasimul Hasan has stated that fire was also shot upon him but no injury of fire arm was found on his body. Even the injuries of deceased Ehteshamul Hasan did not co-relate with the first information report and the statement given by P.W.1 Nasimul Hasan before the Tehsildar. There is improvement in the statement of P.W.1 Nasimul Hasan which clearly shows that the statement was improved after receiving the injury reports as well as the postmortem reports. Hence, statement of P.W.1 Nasimul Hasan is not reliable and trust worthy.

69. According to the prosecution version, jeep was being driven by Iqbal who had also sustained injuries and had succumbed to the injuries. According to P.W.1 Nasimul Hasan & P.W. 2 Shabihul Hasan Iqbal sustained gun shot injuries on the driving seat and fell down on the steering. After the incident, P.W. 2 Shabihul Hasan came back at the place of incident. P.W. 1 Nasimul Hasan and Iqbal (in injured condition) and dead bodies of Shamimul Hasan & Ehteshamul Hasan were taken to the police station where first information report was lodged by P.W. 2 Shabihul Hasan. It is admitted by P.W. 2 Shabihul Hasan that from the place of incident till he reached the police station , he had no deliberations or talks with any of the injured persons. First information report was lodged at 11:50 A.M. Investigation was handed over to P.W. 9 S.I. M.L. Khan. S.I. M.L. Khan has stated that he has recorded the statement of injured P.W. 1 Nasimul Hasan and Iqbal Khan at the police station. Subsequently, Iqbal Khan died. It is further stated that at the time of recording of the statement, Iqbal Khan was conscious and fit to depose. His statement is proved as Ext. Ka-23. Since Iqbal Khan, subsequently, died, hence, his statement would become a dying declaration under Section 32 of the Indian Evidence Act.

70. P.W.8 Head Constable Raj Narain Singh was posted as Head Mohrrir at the police station on 24.04.1995, who is the scribe of chik F.I.R. and registered the case in General Diary. It is admitted by P.W. 8 Head Constable Raj Narain Singh that injured Iqbal and Nasimul Hasan were brought to the police station. Address of Iqbal is not entered in the General Diary as the same could not be asked to him since he was in an unconscious state.

71. Learned counsel for the appellants have challenged the statement of Iqbal recorded by P.W. 9 S.I. M. L. Khan, Investigating Officer. It is submitted that Iqbal Khan was brought in an unconscious state at the police station. He did not regain his consciousness at the police station. He was not in a position to give any statement. P.W. 7 Dr. S.Misra, was posted as Senior Medical Officer at District Hospital, Faizabad on 24.4.1995. He medico-legally examined Iqbal Khan on 24.4.1995 at 1:50 P.M. and found five gun shot injuries on his body. It is, specifically, stated by the witness in the examination-in-chief that the condition of the patient was serious, he was unconscious and was unsteady in his speech and action. P.W. 6 Dr. B.K.Bhatia has conducted the postmortem on body of Iqbal Khan on 25.4.1995 at 2:30 P.M. in the District Hospital. It is stated by Dr.Bhatia that there is every possibility that, after receiving injuries, the deceased have gone unconscious. P.W. 9 S.I. M.L. Khan has stated that he has recorded the statement of Iqbal Khan at the police station on 24.4.1995. P.W.8 Head Constable Raj Narain Singh is the Head Mohrrir who had examined the body of Iqbal Khan at the time of registration of the case. Specifically, it is stated by him that when Iqbal Khan was brought to the police station, he was unconscious. This witness has not been declared hostile. P.W. 7 Dr. S. Misra, who has medico-legally examined the injured Iqbal Khan has also stated that when he examined him at 1:50 P.M., he was unconscious. P.W.1 Nasimul Hasan and P.W. 2 Shabihul Hasan have stated that after receiving the injuries on the driving seat of the jeep, Iqbal fell down in the jeep. Dr. S.Misra has found five gun shot injuries on body of Iqbal while P.W. 6 Dr. B. K. Bhatia has stated that there is every possibility that after receiving the injuries, Iqbal had become unconscious. Where was the occasion for P.W.9 S.I. M.L.Khan to record the statement of Iqbal Khan? He was brought unconscious at the police station. He was unconscious at 1.50 P.M. when P.W. 7 Dr.S. Misra, medico-legally examined him. Iqbal Khan succumbed to his injuries at 2:45 P.M. on the same day. First information report was lodged at 11:50 A.M. At what time between 11:50 A.M. and 1:50 P.M., Iqbal Khan regained his consciousness? There is no evidence available on record on this point, which shows that Iqbal was conscious. There was no occasion for the Investigating Officer to record his statement and the statement recorded by Investigating Officer P.W.9, S.I. M.L.Khan could not be believed. Statement of Iqbal Khan cannot be treated as dying declaration.

72. If we accept submission of the learned Additional Government Advocate that it was the dying declaration of Iqbal Khan even then this statement of Iqbal Khan also did not corroborate the prosecution version. Iqbal Khan was the driver of the Jeep, who was sitting on the driving seat. He must have seen the whole incident. Iqbal Khan has also nowhere stated that the injuries were also caused by sword and ''Lathi'. Had Iqbal Khan been in conscious state on the driving seat then he should have stated about use of sword and ''Lathi' but no such statement is made by him which also shows that the genesis of the incident and the manner of assault could not be proved by the prosecution.

73. Learned trial court has not placed reliance upon the statement of P.W.3 Radhey Shayam and found the statement not trustworthy. It is further rightly held that he is not wholly reliable witness. P.W. 3 Radhey Shyam is the husband of Urmila who was contesting the election against relatives of the accused wherein on the date of election some altercation took place between Ehteshamul Hasan and accused Taufiq Alam, Shamim Alam, Salahuddin, Islahuddin, Mujubur Rehman, Saikuddin, Wahajuddin etc. This incident occurred on 7.4.1995. Ehteshamul Hasan was beaten by them. This is the motive shown in the first information report although in the statement of P.W.1 another motive is added that electrification work was being done in the Village wherein certain articles which were kept near the house of P.W. 1 Nasimul Hasan were taken away by the accused. There was also old enmity between the parties, although enmity could not have been proved. It is admitted by P.W.1 Nasimul Hasan and P.W. 2 Shabihul Hasan that the assailants and complainant were having normal relations, although it is also admitted that there were certain litigations interse between them which were, subsequently, compromised but so far as motive is concerned, motive, as alleged, could not be proved by the prosecution. But, at the same time, it has been held by Hon'ble the Supreme Court Darbara Singh v. State of Punjab reported in 2012 (10) SCC 476 as under :

"15. So far as the issue of motive is concerned, it is a settled legal proposition that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses its significance. In the instant case, firstly, there is nothing on record to reveal the identity of the person who was convicted for rape, there is also nothing to reveal the status of his relationship with the Appellant and further, there is nothing on record to determine the identity of this girl or her relationship to the co-accused Kashmir Singh. More so, the conviction took place 20 years prior to the incident. No independent witness has been examined to prove the factum that the Appellant was not on talking terms with Kashmir Singh. In a case where there is direct evidence of witnesses which can be relied upon, the absence of motive cannot be a ground to reject the case. Under no circumstances, can motive take the place of the direct evidence available as proof, and in a case like this, proof of motive is not relevant at all.

16. Motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact-situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused. ........................." (emphasis supplied)

Hence, motive even if alleged and not proved would not improbabilise the prosecution version.

74. Learned counsel for the appellants submits that P.W. 3 Radhey Shyam is a chance witness and interested witness. His presence at the place of occurrence could not be established. He is the husband of Urmila, who was contesting the election and lost the election. Hence, he was deposing against the accused.

75. Presence of P.W. 3, Radhey Shyam at the spot is doubtful. It is stated by him that he was enjoying tea at the shop of Ram Lakhan when the incident occurred. It is admitted by him that his wife lost election from a candidate who was sponsored by Taufeeq Alam. Shop of Ram Lakhan was at a distance of about 2 Bigha but this fact was not told by him to the Investigating Officer. It was also not stated before the Investigating Officer that he was enjoying tea at the shop of Ram Lakhan. According to P.W. 3, Radhey Shyam Abu Qais and Fayyazuddin assaulted Shamimul Hasan by ''Lathi', Shamshad Alam by sword and Mujubur [email protected] Chhotey Miyan by gun shot. Ehteshamul Hasan was attacked by Islahuddin by country made pistol; Saifuddin by gun; Wahajuddin by sword while Nasimul Hasan was assaulted by Israr Alam by ''Lathi'; Salahuddin by gun; Mohd Aslam & Shamim by country made pistol. Iqbal Khan was assaulted by Mahe Alam and Taufeeq Alam by gun and by Jamshed Alam by country made pistol. It is further stated by this witnesses that all the 14 accused persons had made indiscriminate firing. The Jeep was about 30-35 steps from the shop of Ram Lakhan. This witness was standing 2 to 4 steps ahead of the jeep but did not receive any injury. Mujubur Rehman had fired upon at Shamimul Hasan but as per the postmortem report, Shamimul Hasan has not received any gun shot injury. After the incident, this witness left for his house. He did not help the complainant nor injured. It is also admitted by the witness that the accused and complainant were having normal relations prior to the incident. It is further relevant that this witness has admitted that the report was written by P.W. 2, Shabihul Hasan in his presence but neither P.W. 2 asked any question regarding the incident from him nor he said anything about the incident while P.W. 2 himself has stated that after running from the spot when he was standing behind the mango tree he did not see the incident. He had no conversation with P.W. 1 Nasimul Hasan also. Then how minute details of the incident were noted down in the first information report. Learned trial court has rightly disbelieved the statement of P.W. 3 Radhey Shyam, who is not a truthful witness, rather he is a chance witness, who could not support the nature of assault and genesis of the incident as projected by the prosecution. Why the witness has not made any attempt to help the complainant or to take the injured to the hospital or the police station when he is a close person to deceased Ehteshamul Hasan who had been with inimical relations with the accused only because of the fact that wife of P.W.3 Radhey Shyam was contesting the election against a candidate who was sponsored by the accused. In such circumstances, the statement of P.W. 3 Radhey Shyam is also not believable. In Masalti v. State of Uttar Pradesh, reported in AIR 1965 SC 202, a four Judges Bench of Hon'ble the Supreme Court has held that the evidence of partisan witnesses has to be very cautiously scrutinised by the Courts. In Harjinder Singh v. State of Punjab, reported in (2004) 11 SCC 253, Hon'ble the Apex Court has referred to the decision in Satbir v. Surat Singh reported in (1997) 4 SCC 192 wherein it is held that a ''cautious and close scrutiny' of the evidence of chance witnesses should inform the approach of the Court. The statement of P.W. 3 Radhey Shyam is not worth-reliance. His presence at the place of incident is doubtful. His statement was recorded by the Investigating Officer on 29.4.1995 after receiving the reports of postmortem as well as medico-legal examination. There is no reason for such delay. Although delay in recording the statement should not be the sole ground for discarding the statement of witness but, at the same time, when the witness was available but his statement is not recorded, it creates a serious doubt about the veracity of the testimony of the witness. Further more, the conduct of this witness itself creates doubt about his presence at the spot.

76. Learned counsel for the accused-appellants submitted that there is a contradiction between medical and ocular evidence. It is submitted that in the first information report neither sword nor ''Lathi' is mentioned. Even in the statement of witness P.W.1 Nasimul Hasan use of sword and ''Lathi' has been ascribed which did not co-relate with the medical evidence as well as the statement of P.W. 1 Nasimul Hasan recorded by D.W. 3 Ram Kewal Tiwari under Section 164 Cr.P.C.

77. In Mahavir Singh v. State of Madhya Pradesh reported in (2016) 10 SCC 220, it was held by Hon'ble the Supreme Court as under :

22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (See Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , SCC p. 274, para 39.)

78. Further in State of Haryana v. Bhagirath, reported in (1999) 5 SCC 96, it was held by Hon'ble the Supreme Court that "it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the ''variable' keeping the medical evidence as the ''constant' ".

79. In Solanki Chimanbhai Ukabhai v. State of Gujarat, reported in (1983) 2 SCC 174, it is held as under :

"13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."

(emphasis added)

80. In Abdul Sayeed v. State of M.P. reported in (2010) 10 SCC 259, it was held by Hon'ble the Supreme Court in para 39 of the report as under:-

"39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."

81. In the present case, there is variance in the medical evidence as well as the ocular evidence. Even the testimony of P.W. 1 Nasimul Hasan could not be believed. When the statements of P.W. 1 Nasimul Hasan and P.W. 2 Shabihul Hasan are not believable and are not in consonance with the medical evidence, hence, the prosecution could not be able to successfully meet out the contradiction in the medical as well as as the ocular evidence.

82. Learned counsel for the appellants submits that the first information report is ante-timed. P.W. 7 Dr. S.Misra has medico-legally examined Iqbal Khan and P.W. 1 Nasimul Hasan. He has proved the injury reports Ext. ''Ka'-6 and Ext. ''Ka'-7 of injured persons wherein at the top of injury report of Iqbal Khan, it is mentioned that ''F.I.R. Not Lodged'. Injury report was prepared not on the basis of ''Chithi Majroobi' issued by the police station while P.W. 8 Head Constable Raj Narain Singh, the scribe of Chik F.I.R. has stated that the injured persons were sent to Akbarpur Hospital from the police station but no ''Chithi Majroobi' was prepared. When the injured persons were sent to the Hospital from the Police Station then ''Chithi Majroobi' should have been prepared, which was not prepared. Further P.W. 9 S.I. M.L.Khan has stated that he started the investigation on 25.4.1995 at 00.5 A.M. while it is stated by him that the case was registered in his presence and he undertook the investigation and recorded the statements of Shabihul Hasan and Iqbal Khan. Iqbal Khan died on the same day. According to P.W.9 S.I. M.L. Khan, he started the investigation on 25.4.1995 at 00.5 A.M., meaning thereby, that during the intervening night of 24/25.4.1995, he started the investigation then how the statement of Iqbal Khan was recorded by him? Further, it is in contradiction to his own statement in examination-in-chief that as soon as the F.I.R. was registered he undertook the investigation. The circumstances show that the first information report was not registered at 11:50 A.M. as has been stated by P.W. 8 Head Constable Raj Narain Singh.

83. A plea is taken by accused Fayyazuddin, Mahe Alam, Shamim, Jamshed Alam and Mohd. Aslam that they were not present at the place of incident, rather, they were present at Mumbai. They have taken the plea of alibi which has been duly proved by D.W. 2 API Jayant Ram Chandra Pardeshi of Cup Parade Police Station, Mumbai, D.W. 4 Mohd. Layak and D.W. 5 Antony. It has been duly appreciated by the learned trial court which has recorded a finding to the effect that their presence in Mumbai is duly proved. Jamshed Alam was driving a Taxi on 24.4.1995 in Mumbai, which is duly proved by Ext. ''Kha'-10 and the statement of D.W. 5 Antony. Presence of accused Fayyazuddin, Mahe Alam, Shamim Alam and Mohd Aslam in Mumbai is also proved by the statements of defence witnesses. Mohd. Aslam, Jamshed Alam and Ashud Alam were summoned at police station Cup Parade on the report of Fayyazuddin on 24.4.1995 at about 11:00-11:30 A.M. Although, an appeal is preferred by the State against the order of acquittal, the finding recorded by the learned trial court coupled with the fact that the presence of the accused at the place of incident could not be proved is sufficient to hold that the finding recorded by the learned trial court is a possible view, which has been taken by the learned trial court correctly. Accordingly, we do not find any reason to interfere in the findings of acquittal recorded by the learned court below.

84. On the basis of the discussions made above, we are of the considered view that the prosecution has failed to prove the charges levelled against the accused beyond reasonable doubt and the accused are entitled for acquittal. The judgment and order dated 10.07.2008 of the learned trial court is liable to be set aside.

85. Accordingly, Criminal Appeal No.1610 of 2008, Criminal Appeal No.1696 of 2008, Criminal Appeal No.1699 of 2008, Criminal Appeal No.1582 of 2008, Criminal Appeal No.1608 of 2008, Criminal Appeal No.1609 of 2008 and Criminal Appeal No.1587 of 2008 are allowed and judgment and order dated 10.07.2008 passed by the learned court below is set aside. Accused-appellants Islahuddin, Taufeeq [email protected] Kimmu; Salahuddin; Shamshad Alam @ Saimadh; Saifuddin @ Saikuddin; Wahajuddin @ Saikuddin @ Wahajuddin and Abu Qais are acquitted of the charges punishable under Sections 302 read with Section 149 I.P.C.; Section 307 read with Section 149 I.P.C. and Section 148 I.P.C. Accused-appellants Islahuddin, Taufeeq [email protected] Kimmu; Salahuddin; Shamshad Alam @ Saimadh; Saifuddin @ Saikuddin; Wahajuddin @ Saikuddin @ Wahajuddin and Abu Qais are in jail. They shall be released forthwith, if not wanted in any other case.

86. Criminal Appeal No.1651 of 2013 (State of U.P. v. Mahe Alam and 6 others) and Criminal Revision No.532 of 2008 (Syed Shabihul Hasan v. Fayyazudedin and 6 others) are dismissed.

87. Office is directed to certify a copy of this judgment and order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith.

[Anil Kumar Srivastava-II,J.] [Prashant Kumar,J.]

Order Date :- 24.11.2017

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