Rayan vs State Of U.P.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Satish Trivedi, learned Sr. Advocate, assisted by Sri Ajay Kumar Pandey, learned counsel for the appellants, Sri N.I. Jafri & Sri Ronak Chaturvedi, learned counsel for the complainant and Sri J.P. Tripathi, learned A.G.A. for the State.

2. These criminal appeals have been preferred against the judgment and order dated 19.11.2018 passed by 11th Additional District and Sessions Judge, Muzaffar Nagar in S.T. No. 724 of 2011 (State Vs. Khalil and two others), whereby accused-appellant Khalil, Raiyyan and Shakir have been convicted Section 307 IPC read with 34 IPC and sentenced with 10 years rigorous imprisonment, fine of Rs. 5000/- each and in default of payment of fine one year additional simple imprisonment; u/s 504 IPC two years simple imprisonment each and under Section 506 IPC, five years simple imprisonment each.

3. Since Appeal Nos. 7193 of 2018, 7197 of 2018 and 7214 of 2018 have been preferred by appellants namely Raiyyan, Shakir and Khalil against common judgment mentioned above, they are being taken up together for being disposed of.

4. In brief, the prosecution case as disclosed from the F.I.R. is that son of Shaukat Ali namely Sarfaraz had gone for weighing the buggi of sugarcane at Kolhu in village 10 days ago, then a quarrel had taken place between Sarfaraz and Naseem S/o Shamshuddin of his village but some persons present there had got the matter compromised but Naseem had given threat to Sarfaraz that he would see him but ignoring the said threat Sarfaraz went on 25.2.2010 at about 2:30 pm to take medicines for his father from the medical store of Farrukh. It was then that Naseem, Khalil and Raiyyan sons of Shamshuddin and Shakir S/o Raiyyan came there at the said medical store armed with Lathi, country made pistols and guns and forcibly tried to drag Sarfaraz into their house and when they reached in the lane by the side of their house, in front of the lane, his son Sarfaraz was caused injuries by Lathis by Khalil and Raiyyan and Raiyyan, Khalil and Naseem, who were armed with guns, all caught hold of Sarfaraz, while Shakir exhorted "mar sale ko goli", at this, Shakir made fire upon his son Sarfaraz with an intention to kill by the country made pistol, which he was wielding in his hand. As soon as Naseem was seen about to make fire on him, his son sensing that he might loose his life, snatched away the gun from the hand of the Naseem and, thereafter, these persons chased Sarfaraz with an intention to kill but his son in order to defend himself made fire by the said gun, which he had snatched, upon all the four accused and thus, he saved his life and came home. It is further mentioned in the F.I.R. that the family of the accused was very big and all of them assembled at the house of the complainant/informant because of which the informant closed his doors and the windows and early in the dark hours somehow concealing themselves reached his Sasural Shernagar, where Sarfaraz was shown to the doctor in Government Hospital, Muzaffar Nagar. Because of fire arm injuries having been suffered by Sarfaraz, he was referred to Medical college, Meerut where he was medically examined. It is further mentioned that because of the fear of the accused, information with respect to this occurrence was given to DIG Sahab that police at Saharanpur had not registered his report. The entire occurrence was seen by Ifroz S/o Zabbar, Musarraf S/o Hardaulla, Gayoor S/o Ismail of his village. He had also annexed photo copies of doctor's report and reference slip along with said written report and prayed that the S.O. would be instructed to lodge the report and take action against the accused.

5. In the said written report dated 2.3.2003 given to DIG, Saharanpur, the order was passed for investigation of the case, whereon on 10.3.2010 at 18:30 pm, case crime no. 163A of 2010 was registered against Naseem, Khalil, Raiyyan and Shakir at P.S. Shahpura, under Section 307, 504 and 506 IPC by PW-3, Constable Sahab Singh and he prepared Chik F.I.R. (Ext. Ka-2) of this case and made entry of this case in G.D. (Ext. Ka-3) on 10.5.2010 at report no. 38, time 18:30 hours. The investigation of this case was assigned to PW-6 S.I. Bagesh Kumar Sharma on 10.3.2010. On the said day, he copied Chik F.I.R. as well as G.D. and recorded statement of F.I.R. writer and, thereafter, on 11.3.2010 in parcha no. 2 recorded statement of informant, witness Afroz, Musarraf and Gayoor and also obtained photo copy of the medical report of the injured Sarfaraz, who made inspection of the place of occurrence and prepared site plan (Ext. Ka-6). On 15.3.2010, he made raid to arrest the accused. On 18.3.2010, he made the raid to arrest the accused but they could not be found. On 21.3.2010, he obtained non bailable warrant against them. On 23.3.2010, he took the statement of injured Sarfaraz who was detained in crime no. 163 of 2010 in District Jail with the permission of the court, who supported the occurrence. He also recorded statement of the doctor. On 4.4.2010, raid was made to arrest the accused. On 14.4.2010, raid was made to arrest the accused and report was submitted for obtaining non bailable warrant. On 5.4.2010 non bailable warrant of accused were obtained and an effort was made to arrest them but could not be found. On 21.4.2010 and 11.5.2010, the raid was conducted to arrest the accused but could not be found. On 23.5.2010, process under Section 82 and 83 Cr.P.C. were obtained. On 26.5.2010 again non bailable warrant were obtained against the accused. On 27.5.2010, the raid was conducted for arrest of the accused. On 28.5.2010 warrant under Section 82 Cr.P.C. was executed but accused could not be found. On 13.6.2010, raid was conducted but accused could not be found. On 29.6.2010 report was submitted for proceeding under Section 83 Cr.P.C. On 2.7.2010 process under Section 83 Cr.P.C. was obtained. On 18.3.2010, medical report of Sarfaraz was received and the accused were released on interim bail, hence charge sheet no. 118 of 2010 was submitted against accused Khalil, Raiyyan and Shakir finding them guilty, which is Ext. Ka-7.

6. On the basis of evidence on record, charge was framed against the appellants under Sections 307 IPC read with 34 IPC, 504 and 506 IPC to which they pleaded not guilty and claimed to be tried.

7. In order to prove its case, from the side of prosecution informant Shaukat Ali as PW-1, injured Sarfaraz as PW-2, Constable Sahab Singh as PW-3, witness Musarraf Ali as PW-4, Dr. Radhey Shyam Verma as PW-5, S.I. Bagesh Kumar Sharma, who conducted investigation, as PW-6, Dr. Shukam Pal Singh as PW-7, Dr. Ram Kumar as PW-8, Dr. Rishu Singla as PW-9 have been examined.

8. Thereafter, the prosecution evidence was closed and the statement of accused were recorded under Section 313 Cr.P.C., in which all the accused have stated that the evidence gathered by the prosecution against them is false. No such occurrence has happened and the present case has been fabricated against the accused in order to save themselves from their prosecution under Section 302 IPC in S.T. No. 957 of 2010.

9. Additionally accused Khalil has stated that Sarfaraz, Sadik Arshad, Rashid, Sahid, Farruk and Mumtaz had entered his house on 25.2.2010 at 2:00 pm armed with illegal weapons and had committed murder of his brother Naseem and also caused fire arm injuries to Raiyyan, Khalil and Sakir, regarding which S.T. No. 957 of 2010, under Section 302, 307 and 452 IPC is going on in this Court. The same has been reiterated by the two other co-accused. In defense, S.I. Bageshwar Sharma has been examined as DW-1, Dr. Radhey Shyam Verma as DW-2, Dr. Kuldeep Mittal as DW-3.

10. After having considered the evidence mentioned above, the trial court has convicted the accused appellants and sentenced them as mentioned above. We have to see in the light of arguments made by the learned counsel for the appellant as to whether the trial court has made proper appreciation of evidence or does it require any interference, therefore, we have to appreciate the evidence afresh.

11. PW-1, Shaukat Ali, informant, has stated in examination-in-chief that the occurrence took place on 25.2.2010 at the medical store of Farrukh, where his son Sarfaraz had gone to take medicine for him. There, Naseem, Khalil and Raiyyan all sons of Shamshuddin, of his village came armed with Lathi, Danda and gun and also had country made pistol. They tried to drag Sarfaraz towards their house and in the lane adjacent to their house, his son Sarfaraz was beaten up by the said weapon by above accused. Shakir had made fire upon his son Sarfaraz, while rest of them had beaten him by Lathi. Naseem told Shakir "mar sale ko goli" and then Shakir had made fire upon Sarfaraz. His son had snatched gun from Naseem and had run towards his house. Then his son, when he saw all the four chasing him, opened fire upon all the four accused. His son Sarfaraz had come home and, thereafter, Naseem and his entire family members which is a large family, came at his house, seeing them, he closed down his door and windows and when the accused fled from there, in the darkness of night, concealing himself and his son Sarfaraz, he took him to Sasural Shernagar, where his brother Hashim was residing and he took his son to Government Hospital Muzaffar Nagar for treatment but doctors having found his condition serious had referred him to medical college, Meerut where his medical examination was conducted. He had given information of this occurrence at P.S., Shahpur but his report was not lodged and then he gave an application to D.I.G., Shahpur after getting it typed, which is Ext. Ka-1.

12. This occurrence had taken place due to the quarrel which initiated on account of weighing of Buggi of sugarcane in Kolhu, which occurrence took place about 10 days ago. The said Kolhu was about 500 metres away from his village. He had shown the place of incident to I.O., who had taken his statement.

13. In cross-examination, this witness has stated that on the date of occurrence, he was running sick as he was having pain in his hand and leg, although he was not taking treatment of any doctor or Hakeem. The said pain had aggravated on the date of incident but he had not shown himself to any doctor or Hakim nor had he consulted them as to what medicine was to be taken but on his own he stated that he had sent his son to bring medicines. His son was sent to doctor Farrukh, to whom the said medical store belongs and he himself had not gone because of pain. There are other doctors also besides Farrukh, in the said village, where he lives but no doctor has any shop other than him. The medical store of doctor Farrukh is situated at a distance of about 400 metres towards south from his house. His son had gone to take medicine at about 2:15 pm, but after having returned had not given him any medicine, given by Dr. Farrukh. He has denied the suggestion that he was not sick and had not sent his son to take medicine. His house is adjoining to the house of Farrukh. The place where shop of doctor Farrukh is located, the medical store of Kala S/o Shaukat is also being run. It is wrong to say that there was no such store of Dr. Farrukh and always there was medical store of Kala and it is also wrong to say that there was never any medical store of Farrukh, rather he used to run the shop in his house only. He had shown the I.O. the said place 2-3 days after the occurrence. Although, on the said day, when he had taken him there, Kala S/o Shaukat was sitting in the said medical store but, thereafter, he denied. He has further stated that accused Sadik and Sahid are his nephew, accused Arshad is his uncle, accused Rashid is his brother and accused Farrukh S/o Islam is his nephew, the accused Mumtaz is his nephew and accused Sarfaraz is his son. He has admitted that Naseem S/o Shamshuddin had died. He also knows his brothers Raiyyan, Khalil and Shakir. For causing death of Naseem, there is a case going on in this court on his son Sarfaraz and on other accused Sadiq etc., in which injuries were also stated to have been caused to Raiyyan, Khalil and Shakir in which the said accused including his son were in jail. He also has stated that no mar-peet was done with Sarfaraz in his presence, rather he was apprised by Sarfaraz that he was beaten by Lathi and Danda by Khalil, Raiyyan and Shakir. The head of Sarfaraz was lacerated. No fire arm injury was caused to Sarfaraz in front of him and regarding it also Sarfaraz had told him that Shakir @ Shakib had made fire upon him. He had not told him that he had received fire arm injury but he had stated to him that he had not snatched gun of Shakir, rather had told that he had mot snatched gun of Naseem. When Sarfaraz had come home, he did not have gun, which he had snatched from Naseem. Where the said gun had gone, he did not tell. He had not obtained any information with regard to the said gun till now. Sarfaraz had come to him about 3:00 pm and behind him, after about 5-7 minutes, accused had also come at his house but among them, Naseem was not seen. In all, 10 to 15 people had come, which included Khalil, Raiyyan and Shakir and other family members, whose name he does not know. Along with Sarfaraz, no other person of the village had come. The door of the house was closed due to which the accused had returned and none of the accused had tried to break open the door. Sarfaraz had told him that the gun, which he had snatched from Naseem, he had made fire by that in order to save his life, but had not told him as to whom the said fire hit or not. He had taken his son Sarfaraz in the darkness of night for treatment to his Sasural by Maruti Car, which belonged to Sazid of the village, who owns the said vehicle as well as drove the same. The distance of his house from his Sasural to Shernagar would be about 20-25 km. He had reached Shernagar early in the morning but how much time he took in reaching there, he cannot tell. His brother-in-law Hashim met him in the house. Hashim was taken to Muzaffar Nagar Hospital. His brother-in-law Aizaz Ali is a doctor, by whose motor-cycle, he had gone to District Hospital, where he had reached about 9:15 am. His son Sarfaraz was medically examined and there he stayed for 10 to 12 minutes and from there a car was hired on rent for Meerut, while Maruti was left behind in his Sasural.

14. Further this witness has stated that his brother- Aizaz Ali is a doctor for last 40 years, who does private practice and he was found at home when he had gone to Sasural. When he reached Muzafar Nagar in the morning, then his other brother-in-law came and not the one, who was doctor and then they all reached Muzaffar Nagar Hospital and, thereafter, in about 20 minutes time, his brother-in-law Aizaz also arrived there who had accompanied him to Meerut, where they had reached about 12:15 pm in Sardar Ballabh Bhai Patel Hospital. To the said hospital, reference was made by hospital of Muzaffar Nagar after having seen his condition. No treatment was given to him in District Muzaffar Nagar in his presence, but only reference was made. He denied the suggestion that in Muzaffar Nagar Hospital, the doctor had refused to prepare forged medical report because of which he had gone to his brother-in-law, who was a doctor and due to that reason only he was referred to Meerut. In Muzaffar Nagar hospital, his son was in little conscious condition.

15. His son had not brought medicine from the clinic of Farrukh but Farrukh had come at his home with the medicine but he did not tell him about the quarrel, which had happened with Sarfaraz and the accused. In his village Shahpur, there was a government hospital at a distance of about 6 to 7 km, where he had not shown his son, rather had gone to Muzaffar Nagar. Further this witness has stated that the day on which this occurrence happened, on the said date, he had not gone to lodge the report of this occurrence, thereafter stated that he had gone to lodge the report on the same day at P.S. Shahpur at about 4:05 pm along with Kallu Pradhan and injured son. In car, Musharraf was accompanying, which was parked outside the P.S., where he had stayed for about half an hour but his report was not lodged. After that, he along with his injured son came to Muzaffar Nagar to show his son in government hospital, which would be about 20 to 25 kms away from Shahpur. From Shahpur, straight he went to Sasural in village Shernagar and not stayed at Muzaffar Nagar Hospital. By the time, when he had gone to the P.S. Shahpur, sun had set and it had become time of around 11-12 O' clock in the night. Earlier stated time 4 to 5 pm was wrong. Before going to Shernagar, he had not gone to the Government hospital Muzaffar Nagar because he had become nervous. He had to talk to his brothers at Shernagar, who is a doctor and he was to be taken along. After reaching the Meerut Hospital, his son was got admitted there for about 4 to 5 hours but was not operated and only he was given first aid and also an X-ray was conducted but no pallets were taken out. Within 4 to 5 hours of his reaching at hospital, police had arrived there of P.S. Shahpur and had arrested him. It is wrong to say that his son was not admitted in Meerut, Medical College. When the police had arrested his son, he does not recollect but later on stated that he was taken away about 5 to 5:15 pm and behind him, he had also gone to the P.S. but police had not set him free. The police had got his son Sarfaraz medically examined at Shahpur hospital on the same day when he was arrested from Meerut.

16. He has further stated that on 5.3.2010, he had given a typed written application to DIG, which was got typed in Muzaffar Nagar after consulting his counsel and had given the same to DIG Saharanpur. He had not got it written in it that his son Sarfaraz had made fire on all the four accused nor had he stated so to the I.O.. He was told by his counsel on the date when his statement was recorded in court that he has to say in evidence that Sarfaraz had made fires on all the four accused. He had mentioned in his application given to DIG that he had gone to lodge the report at P.S. Shahpur but if the same is not written, he could not tell its reason. He had also stated to I.O. that he had gone to P.S. Shahpur to lodge report but the same was not written.

17. About 10 days prior to this occurrence, his son Sarfaraz had gone to get the sugarcane Buggi weighed at the Kolhu of Arshad but he had not accompanied his son. His son had told him that there quarrel had happened with Naseem and mediation was done between them by Thekedar, who was present there. He denied the suggestion that no such quarrel had happened there. He denied the suggestion that his son Sarfaraz had a quarrel in respect of playing volleyball. Further he has stated that the mar-peet, which happened with Sarfaraz was done by the accused in the lane existing by the side of the accused, where he was beaten by Lathis. The distance between medical store and the house of accused would be about 50 metres. There was no blood at the place of incident. He does not know whether Naseem had died due to fire arm injury or not nor does he know that the accused of this case namely Raiyyan, Khalil and Shakir had received fire arm injuries or not. He also denied the suggestion that on 25.2.2010, his men had not entered the house of accused and made fire upon Naseem, Raiyyan, Khalil and Shakir and in order to save themselves from the said case, this false case was slapped against the accused by getting forged medical paper prepared.

18. From the statement of this witness mentioned above, it is apparent that he is not an eye-witness of the mar-peet, which the injured Sarfaraz, his son, has stated to have been done by accused Naseem, Raiyyan, Khalil and Shakir, whatever was told to him by Sarfaraz was stated by him, and therefore his testimony with respect to occurrence which is stated to have happened at the medical shop of Farrukh cannot be held proved. We also find that he has clearly admitted that there was a Government Hospital located within 7 kms from the place of occurrence in the village but he did not take his son there for treatment, which is unnatural. In case, the injured Sarfaraz had received serious injuries, which could be detrimental for his life, it would have been but natural for him to take him to the closest hospital, which he did not do and it creates doubt in respect of the case of the prosecution. It is also evident from his evidence that he took his son to his Sasural, where his brother-in-law was a doctor and he was bent upon taking the said doctor along to the medical college, Meerut, which also creates suspicion that he might have taken help of his brother-in-law in obtaining forged medical certificates in respect of his son. His statement also appears to be false that he (injured) was admitted in medical college, Meerut as no such evidentiary record has been provided showing that he was ever admitted in the said medical college for the treatment. It all reflects that his son does not appear to have suffered any serious injury as was being stated from the side of prosecution, which were stated to have been caused by accused to his son.

19. In support of prosecution version as narrated in the F.I.R., PW-2, Sarfaraz, who is injured, has stated in examination-in-chief that incident occurred on 25.2.2010. Ten days prior to that he had an altercation with Naseem with respect to weighing of sugarcane at Kolhu but the dispute was got settled through intervention of persons present there but Naseem had threatened him to see. The present occurrence happened at about 2-2:30 pm, when PW-2 was going to the medical store of Farrukh, who was resident of the same village, for taking medicines, right then Naseem, Khalil, Raiyyan and Shakir came there armed with Lathi, Katta and gun and started assaulting PW-2 and tried to drag him towards their house. Outside the house of Shamshuddin, in the lane, Khalil and Raiyyan assaulted him with Lathi, while Naseem was having gun and Shakir, who was having Katta, caught hold of him and Naseem exhorted Shakir "maro sale ko goli", at this, Shakir made fire upon PW-2. As Naseem was about to make fire upon PW-2, PW-2 seeing that he would be killed, somehow snatched gun of Naseem, despite that these accused ran after him and PW-2 looking threat to his life, with quickness made fire upon them by the same gun, which he had snatched from Naseem and in order to save his life, reached his home. The assailants family is too big, all of them reached the house of PW-2, whereafter PW-2 closed all the doors and windows of his house and thereafter he concealing himself somehow reached Shernagar at the house of his maternal uncle, where he was medically examined in Government Hospital. Looking to his serious condition, he was referred to Meerut, where his full medical examination was held. From Muzaffar Nagar, he was referred to Meerut, where he remained hospitalized and his father Shaukat Ali had gone to lodge report at P.S. Shahpur. The occurrence which took place, was witnessed by Afroz S/o Zabbar, Gaffar S/o Ismail, Musarraf S/o Harjulla and other villagers of his village. The investigating Officer has taken his statement, whom he had told all the facts.

20. In cross-examination, this witness has stated that it is true that a cross-case under Section 302 IPC of the present case is pending in this very court but he denied to have given false statement. He has further stated that at the time when he had heated exchange with Naseem at Kolhu, the said Kolhu belonged to one Arshad of his village, who had given the same to a contractor, whose name he does not know but the said contractor dos not belong to his village, rather lives in village Khudda. At the said Kolhu, PW-2 had also gone with sugarcane, while Naseem had also come there with his sugarcane, whose sugarcane was insisted to be weighed first, in this regard, heated arguments had taken place. Prior to that, there was no bad relationship between families of the two sides. At that time, there were about seven to eight persons of his village but he could not tell name of anyone of them but these people had got the matter settled between them. This altercation had taken place orally and was not followed by any mar-peet and thereafter both the sides had got their sugarcane weighed. The occurrence took place at about 1-1:30 pm, he cannot exactly give the date of occurrence. After getting the sugarcane weighed, he had come to his home, but at Kolhu, Naseem had given him threat to see him. The said threat was given after the compromise was effected and the said threat was given in front of those persons, who were instrumental in bringing about the compromise. Since thereafter, they had never gone to get their sugarcane weighed together ever. He has denied to have given false statement about the said occurrence of heated arguments which took place at Kolhu and that the same was given with the help of legal opinion.

21. In the occurrence, which took place on 25.2.2010, Naseem was killed, whose father's name is Shamshuddin, regarding which he came to know on 26.2.2010, when he was in hospital in Meerut at about 4:30 pm, but he could not know as to why he was killed. He also could not know as to how Khalil, Raiyyan and Shakir had received injuries. Both Khalil, Raiyyan are real brothers of Naseem, while Shakir is son of Raiyyan. He has admitted it to be correct that the case with respect to causing death of Naseem and serious injuries to Raiyyan, Khalil and Shakir was pending in this very court against PW-2, Sadiq, Sahid, Arshad, Rashid, Farrukh and Mumtaz. Sadiq and Sahid S/o Ikbal belong to his family and Arshad S/o Farzulla also belongs to his family and rest of the accused are also from his family. Further he has stated that the occurrence happened with him at about 2-2:15 pm. Further he has stated that medical store of Farrukh is located at a distance of about 400 metres from his house towards west probably, as he does not have any knowledge of the directions and in between, there were hundreds of houses. The said medical store was commissioned/started three to four years ago. After the occurrence, Farrukh had gone to jail in case of murder of Naseem and thereafter the said medical medical store was being run by one Kala, who is not related to Farrukh. Farrukh is still in jail. From the medical store of Farrukh, house of Naseem is situated at a distance of about 50 to 60 paces. To the west of medical store of Farrukh, there is Kharanza and also primary school is located there. Between, primary school and medical store, there are houses of Iliyakat and Farrukh. In front of medical store of Farrukh and primary school, across the road, to the west, is located house of Naseem, whose door opens on the passage towards the primary school. He has seen the house of Naseem but had not gone inside it and could not tell as to what is the internal constructions but he admitted that the same is two storeyed building and adjacent to the said house of Naseem is a lane and adjacent to the said lane is house of Mehruddin and adjacent to the house of Mehruddin, is a house of Patwari.

22. It would be pertinent to refer her to the site plan which has been prepared by the Investigating Officer, which is Ext. Ka-6, in it, by ''X' is shown the place where occurrence took place on the passage. The primary school is shown to the east of the said passage and to the south of it is shown house of Munna and thereafter to the south of that is shown shop of Farrukh S/o Ismail. To the passage on which, the occurrence took place, which is shown by ''X', to the west of it, is situated house of Naseem etc. and to the south of it is shown Kharanza and to the south of that Kharanza, is house of Mehruddin and thereafter to the south of it, has been shown the houses of other persons and so on. The accused are shown by an 'arrow' to have come from the house of Naseem towards the shop of Farrukh and by different kind of ''arrow' is shown the direction in which injured Sarfaraz was dragged away from the shop of Farrukh towards the house Mehruddin, but when the occurrence took place at the place shown by ''X', the injured Sarfaraz is shown to have fled towards south from there, which is shown by different ''arrow'. The location which has been narrated by PW-2 of the place of occurrence, is matching with the site plan if it is read closely.

23. He has further stated that he had gone to the medical store for bringing medicine for his father Shaukat Ali, who had fallen sick about five to seven days prior to the occurrence, and was having pain in his hands and legs and was also suffering from fever, although he was not undergoing any treatment of any doctor or Hakeem. The medical store of Farrukh also gives treatment and that store only had given medicine in respect of treatment of his father. His house is very close to the house of Farrukh. He has no knowledge that Farrukh before going to medical store had come to his house in the morning and after having seen his father, had given medicine or not. His father had not given any parcha in respect of medicine which was to be purchased from the said medical store. He had not taken any medicine from the said medical store prior to the occurrence. When he had gone there, Farrukh was present there and at the medical store itself, the accused had started beating him by Lathi, Danda and had started dragging him to take him to their house, by then he had been dragged up to the lane which was by the side of their house (accused's house). From the medical store, up to the said lane, he was taken away being beaten all through in which his head was lacerated and he was bleeding profusely but could not tell whether blood had fallen on the ground or not. In the said lane, he was again beaten for up to five to seven minutes and in this period, none came to defend him, hence he got himself freed from the clutches of the accused on his own and fled towards his house. In the said lane, all the accused had beaten him together. When he fled from the said lane towards his house, he was chased by the accused. While he was in lane, fire was made upon him, which was made by Shakir but the same did not hit him. The one bullet hit him on his right chest, after getting hit, he fled from there and had not fallen in the lane. Shakir had made fire upon him by Katta. After fleeing from the lane and reaching his house, he had fallen down about one to two times but he does not recollect as to how many times he had fallen while running from the lane towards his house and where at what places he had fallen. While he was fleeing, there was distance of 10 to 15 metres between him and the accused. While he was fleeing, no fire was made upon him by the accused and he had not raised any alarm. While he was running although he kept on running and entered his house, at that time, his mother and father were inside the house, whom he told all the details within five to seven minutes and thereafter he became unconscious. He regained consciousness after reaching hospital in Meerut. In Muzaffar Nagar, when he was got admitted, he had no knowledge.

24. Further he has stated that when he was fired upon by Shakir, rest of the accused had en-circled him. The mar-peet with Lathi, Danda had been done with him prior to him receiving bullet injuries. He was shot at only one fire by Shakir but he does not recollect the distance between him and Shakir at that time, he was surrounded by all the remaining accused but he cannot give details as to who was standing on which side. After getting hit by bullet, he had snatched gun from the hands of Irfan and started fleeing towards his house.

25. Further he has stated that he had gone home running from in front of medical store of Dr. Farrukh but he does not know whether Farrukh was at the medical store or not and whether the said medical store was open at that time. He also does not recollect whether during this entire incident, Farrukh came for his rescue or not nor does he recollect as to where Farrukh met him after the occurrence as he was injured. He (PW-2) had made fire after the reaching at a distance of about 40 to 50 paces from the place of occurrence by the gun which he had snatched from Irfan. After having made fire, he had left the gun there only. He had made fire towards the place of occurrence, just from the place, just prior to the medical store but where the said gun had gone, he has no knowledge till now about it. He also does not recollect as to from how much distance the said fire was made by him and whether the same hit any of the accused, he has no knowledge. He also has no knowledge whether the said gun was licensed gun or not, although, thereafter, he stated that Irfan and others did not have license for gun. Thereafter, all the accused had chased him up to his house but again stated that he does not know whether all the accused had chased him or not. When he entered his house, at that time, there would have been a gap of 20 to 30 yards between him and the accused but he did not see, who all were chasing him from amongst the accused. Soon after entering the house, he closed the doors of his house. The accused after having abused and after having knocked the door for about five to seven minutes continuously, went back. He would have entered the house at about 3 to 3:15 pm and after having revealed about the incident, he became unconscious. He had made only one fire in defence but he does not know that Naseem was found to have received six fire arm injuries in post-mortem. How Naseem received six injuries, he cannot tell. Again he stated that he does not know whether Khalil had received any injury or not and whether he was medically examined and whether he had received injuries. He also does not know whether accused Raiyyan was medically examined and had received any injuries or not nor does he know whether accused Shakir was medically examined and had been found to have received injuries. Further, he has stated that he has no knowledge as to whether after he entered the house, his father Shaukat Ali had taken him to P.S. Shahpur or not because he was unconscious. When he reached Muzaffar Nagar hospital, he had gained little consciousness, his maternal uncle Hashim Ali had taken him. Dr. Aizaz Ali was also there in the hospital of Muzaffar Nagar, he was not treated there, rather was referred for the treatment, looking to his serious injuries. It is wrong to say that when he had gone to the hospital of Muzaffar Nagar, he was not found to have sustained any injuries and that there doctor had refused to show him to have suffered any false injury. It is also wrong to say that because of this reason, his maternal uncle had taken him to Meerut. His maternal uncle had brought him to Shernagar, where he regained little conscious but with whom and at what time, he had gone there and by which vehicle, he had gone there, he does not know nor could he tell whether he reached there in the day or in the night. He had stayed in the house of Muzaffar Nagar for 15 to 20 minutes. The parcha was got prepared and his medical examination was conducted but in this regard, he cannot tell anything as only his maternal uncle would be knowing about it. Thereafter, his maternal uncle had taken him to Meerut, his father Shaukat Ali had not accompanied him to Meerut, only his maternal uncle had accompanied him. He also does not recollect whether his father Shaukat Ali had accompanied him to Muzaffar Nagar hospital but he does recollect to have been accompanied by his maternal uncle there. He had never seen his father Shaukat Ali in Shernagar. He was taken Meerut in Ambulance and had reached there at about 1:00 pm and soon after reaching there, doctors had started giving him treatment infusing glucose but he does not recollect as to how many bottles of glucose were infused nor as to how many injections were given to him during the treatment. From the hospital, his maternal uncle had taken him back home in the evening at about 5 to 6:00 pm in village Harsoli, where he met his father. He does not know whether any medicine was prescribed for him by the doctors at Meerut. After leaving him there, his maternal uncle had returned Shernagar. He had reached village Harsoli in the night at about 10:00 pm from Meerut. Farrukh did not come to his house to know about his condition. Shahid S/o Ikbal is also co-accused with him in cross-case. Both he and Sahid were not challaned by police under Section 25 Arms Act showing recovery of weapons. The said challan was done on 27.2.2010 after having caught him from his house.

26. He has further stated that when Shakir had made fire upon him the other accused had not caught hold of him, rather had only en-circled him. His statement was recorded by I.O. in jail, whom he had not revealed that Raiyyan, Khalil and Naseem had caught hold of him, while Shakir had made fire from Katta but how the I.O. had recorded so in statement, he could not tell its reason. On his own, he stated that whether doctor in Meerut had taken any pellet or bullet from his injury, he does not recollect.

27. He has further stated that he does not know conclusively whether any report about this occurrence, which happened with him, was lodged one day or two days after the occurrence, by his father. The said report would have been lodged at P.S. Shahpur. He has no knowledge that against other accused, a report was lodged by Irfan S/o Shamsuddin on 25.2.2010 at about 4:30 pm at P.S. Shahpur or not. He also does not know that on the basis of said report, case has been registered against him and other accused of the cross-case under Section 302 IPC and other sections but thereafter he stated that he does know that on the basis of report of Irfan, the case against him and accused of the cross-case was registered under Section 302 IPC and other Sections at P.S. Shahpur, which was pending in this very court. He has denied the suggestion that he did not make fire by the gun, which he had snatched, in defence, and that he had made this false cross-case and false medical reports in order to save himself from the case under Section 302 IPC against him. He has also denied that on 25.2.2010, he and other accused of the cross-case together had entered the house of Naseem and others and with an intention to kill them, had made fire upon Naseem, Khalil, Raiyyan and Shakir, by which, Naseem died and rest of them had become injured and it was wrong to say that he along with others had entered the house of Naseem and had made this attack and that any quarrel had happened with the accused Naseem etc. while playing volleyball.

28. After having gone through the statements of this witness, I find that the statement of this witness does not inspire confidence because many questions which were put to him with respect to his accompanying his father to the P.S. for lodging F.I.R., with respect to being taken to Muzaffar Nagar and thereafter to Meerut for his treatment, he did not give clear replies and has taken the plea of being unconscious on account of being injured, these non-disclosure of facts which were asked, appears to have to be deliberate in order to conceal the material facts. The details, which have been mentioned in respect to the manner of assault, also do not inspire confidence because he has stated to have gone to the shop of Farrukh for taking medicine for ailment of his father, where the accused are also stated to have reached and are stated to have assaulted him unprovoked with Lathi, Danda and Katta and gun and, thereafter, he was started being dragged by the accused towards their house and all through he was beaten by them and was taken to the lane situated to the south of the house of Naseem. In the said lane, he tried to get himself freed from the accused and in the said lane, he has stated that accused continued to assault him and when he ran towards his house, the accused also chased him and fire made by Shakir during the mar-peet did not hit him, but one bullet hit his chest on the right side and after getting hit by which, he fled from there and after falling down, one or two times, on the way reached back home. He has also stated that after getting hit by bullet, he had snatched gun from the hand of Naseem and then he had fled towards his house. By the said gun, he had made fire upon the accused from a distance of about 40 to 50 paces from the place of occurrence but he has failed to say as to whom the said fire hit from amongst the accused. The said statement appears to be not believable that while being beaten by all the accused after having surrounded him, he would flee from there snatching away the gun of one of the accused and would make a fire by the same, which he would not know, whom the same hit. Had the occurrence taken place in a manner as was being stated by this witness, he would certainly be able to disclose the person whom the said bullet hit. He has also failed to explain as to how Naseem, who is in cross case stated to have died by having received six fire arm injuries, had received the other injuries. All the answers to these questions not being given by this witness makes us dis-believe his statement.

29. PW-3, Sahab Singh, who is a chik and G.D. writer has stated in cross-examination that the summoned file of Crime No. 975 of 2010 was in front of him. The original chik report of Case Crime No. 162 of 2010 under Sections 147, 148, 149, 452, 302 and 307 IPC and 7 Criminal Law Amendment Act dated 22.5.2010, time 16:40 pm was prepared by him, photo copy of which was being filed by him after being compared with the original and is marked as Ext. Kha-1. The original is G.D. No. 33, time 16:30 hours of the said crime no. 160 of 2010 was also available in the said file, carbon copy of the same after being compared with the original is filed in the present case and is marked as Ext. Kha-2. He has denied that the said case was registered anti dated and anti timed. This is a formal witness, who has clearly supported the prosecution version that he had recorded the F.I.R. and G.D. in cross-case. Nothing else has been asked in the cross-examination.

30. Musarraf Ali, who has been examined as PW-4, has stated in examination in chief that he knows accused Khalil, Raiyyan and Shakir, who belong to his village Harsoli. Khalil and Raiyyan are real brothers, Shakir is S/o Raiyyan. Naseem S/o Shamsuddin, who was brother of Khalil and Raiyyan has died, in respect of murder of whom, the case is pending against the accused. On 25.2.2010, at about 2:30 pm, he had gone to the medical store of Farrukh situated in his village, at that very time, Sarfaraz S/o Shaukat Ali had also come there to take medicine. At that very time, Naseem, Khalil, Raiyyan and Shakir out of whom, Naseem was having gun, Khalil and Raiyyan Lathis and Shakir Katta, reached there and started abusing Sarfaraz and started dragging Sarfaraz towards their house and as soon as they reached the lane near their house, they started beating Sarfarz with Lathis. At that time, Naseem instigated Shakir "sale ko goli mar" at this Shakir made fire from the country made pistol, which he had in his hand upon Sarfaraz with an intention to kill by which he became injured. Then when Naseem was about to make fire upon Sarfaraz, looking to the threat to his life, Sarfaraz snatched gun of Naseem from his hand and fled from there, all the accused also chased him in order to catch hold of him, then Sarfaraz in order to save his life, made fire from his gun in running condition. All this incident was seen by Afroz S/o Zabbar, Gaffoor S/o Ismail apart from him.

31. In cross-examination, this witness has stated that he has two other brothers namely, Akhfaq and Arshad. Arshad is an accused in the cross-case pending in this Court and is in jail. Rashid S/o Akhfaq is also an accused in cross-case and is lying in jail, who is his nephew also. His house is situated towards north from the house of Sarfaraz leaving four to five houses. From there, the medical store of Farrukh is located towards north at a distance of about 300-350 yards. PW-4 was running ill for last three days and was under treatment of Dr. Ikbal. He had gone there at the medical store of Farrukh for taking medicine of the said parcha but Farrukh was not there. The owner of the house (house in which shop was located) told him that Farrukh was about to come and that he should wait for him, at which, he had started waiting. In the meantime, Sarfaraz reached there to take medicines and he also started waiting for Farrukh to come. None else apart from them had come to take medicines. Prior to Farrukh reaching there, a quarrel started. He also had not been able to take medicines by then as Farrukh had not come. There only, at the medical store, the accused started abusing and started dragging Sarfaraz towards their house. No mar-peet had taken place at the medical store of Farrukh, rather had taken place in the lane which was near the house of the accused in which Lathi-danda were used. No mar-peet was done in the lane with Sarfaraz, rather the same had happened outside the lane on the main road. He also had gone to witness the said occurrence after getting up from the medical store and going behind the Farrukh. The lane which was near the house of accused would be about six feet wide. From the medical store of Farrukh, the said place where occurrence happened would be about 50 paces away. His statement by I.O. was taken 12 to 13 days after the occurrence at police Chauki, where he was running ill and was in treatment of the doctor and that he had gone there to take medicine which was written on the parcha from medical store of Farrukh, where he was waiting for Farrukh to come. On his own, he stated that he did not tell all this to I.O. because it was not asked. He has admitted that he has stated before this court for the first time that he was sick and had gone to the medical store of Farrukh for taking medicine but has denied that the same was stated by him on being tutored. This witness has further stated that the head of the injured Sarfaraz had lacerated after being hit by danda but he had not fallen down on the ground. This occurrence happened exactly in front of lane but he could not tell even on the basis of conjecture as to how many times assault by Lathi was made as he had not counted them. Apart from head, he was beaten by Lathi and Danda on his entire body. After having been beaten by Lathi, he had received bullet injury which was caused by Shakir by a Katta but he could not tell the bore of Katta. Only one fire was made which hit Sarfaraz. No other accused had made fire upon him. As soon as the person armed with gun was about to make fire, Sarfaraz had snatched his gun and fled towards his house but he did not see whether the said gun was having one barrel or two barrel. Sarfaraz was surrounded by accused from three sides. The person, who was armed with Katta was only 3 to 4 paces towards north behind Sarfaraz, when he made fire upon Sarfaraz. Rest of the accused had surrounded him. When Sarfaraz after having snatched gun fled towards his house, accused chased him and while Sarfaraz was running, there was distance of about five to six feet between him and the accused. While running, none of the accused had made fire upon Sarfaraz. From the medical store, after having fled for about five to six paces towards his house, Sarfaraz had made fire from the gun which he had snatched from the accused and had made just one fire after which Sarfaraz had fled towards his house. Thereafter, he had not followed him. He had simply gone up to the medical store and, thereafter, through another lane, had returned home. He does not know whether Sarfaraz after taking gun, had gone home or somewhere else nor could he know till now as to what happened of the said gun, which he had snatched. He never went to the house of Sarfaraz since thereafter nor on the next date to find out about Sarfaraz as to whether he could survive or not. After the occurrence, Sarfaraz was seen by him in Kutchehary, where he came to know that he was arrested and was sent to jail. After the occurrence, where Sarfaraz had gone he has no knowledge.

32. This witness has denied to have given affidavit Paper No. 11/2 and 11/3, which was in the summoned file and has denied suggestion that he was denying to have given such affidavit on legal advise. He has also denied that because of being relative to accused Sarfaraz, he has given false statement. Though this witness himself has stated himself to be eye-witness of this occurrence but we do not find his statement to be believable because he is admittedly a related witness and is stating his presence at the place of incident only because he had also gone to take medicine from the same medical store (Farrukh's medical store where Sarfaraz had gone to take medicine).

33. In cross-examination, he has admitted the said fact that he was sick for three days and had gone to take medicine from the Farrukh medical store, was not stated by him before I.O., therefore, because this statement is given by him for the first time in court, appears to have been given in order to prove his presence at the place of incident.

34. In site plan, the I.O. has not shown the place from where this witness is stating to have seen the occurrence. His conduct also seems little unnatural that when he had seen Sarfaraz to have been hit by one bullet, which is stated to have been fired from the side of accused, despite that he did not go and try to know about him as to whether he survived or not. Since his statement has been recorded after the statement of PW-2, who is injured witness, whatever deficiencies were left in the statement of PW-2, this witness appears to have fulfilled those lacunae because he has stated distance from where the fire was made by the accused at Sarfaraz. He has given the same statement in cross-examination with respect to mode of occurrence which is stated in the F.I.R. stating that Shakir had made only one F.I.R. which hit Sarfaraz and no other accused had made fire upon him. The person having gun, when he was about to make fire, Sarfaraz had snatched gun from his hand and ran towards his house but this witness has failed to tell whether the said gun was actually one barreled or two barreled gun. Had he been present there, he would certainly be in a position to disclose this.

35. We may also mention here that testimonies of PW-2 and PW-4 would also require to be tested in the light of medical examination report of the injured witness Sarfaraj, which would be done at the relevant point of time.

36. Dr. Radhey shyam has been examined as PW-5, who has stated that on 26.2.2010, he was posted as doctor on emergency duty in District Hospital, Muzaffar Nagar, when Sarfaraz Ali S/o Shaukat Ali was examined by him at about 9:25 am. The said patient was not medically examined by him. At the time of his medical examination, in emergency, following injuries were found on his person:-

Pallet induced injuries over right side chest and trauma over posterior chest wall.

37. Further this witness has stated that this patient was referred by him for admission to medical college, Meerut and for noting down medico legal injuries. The reference slip Ext. Ka-5 has been proved by him in his hand writing.

38. In cross-examination, this witness has stated that he did not examine this patient in District Hospital, Muzaffar Nagar nor was he X-rayed by him nor during examination made by him of this patient any X-ray was shown to him, which would have been done in District Hospital, Muzaffar Nagar. It is wrong to say that in reference slip he has endorsed "pallet induced injuries" as per the statement of patient. He has further stated that he cannot tell whether the clothes which were worn by the said patient had any hole, which would have been caused by pellets or not. In the reference slip, no mention is made of the patient having been given any treatment by him nor is there any reference of general condition of the patient. He has denied that the said slip was got written from him by Sarfaraz and his companions under some pressure. He has also stated it to be wrong that there was no injury on the body of Sarfaraz, although he has further stated that it is right to say that at the time of examination made by him, Sarfaraz did not have any other injury, except the injury on his chest. He does not recollect as to who had brought Sarfaraz to the hospital or whether he had come on his own.

39. This witness is a formal witness, who has simply stated that Sarfaraz was admitted in emergency and one injury, which is stated above is found, on his body but he was not given any treatment by this witness and was simply referred to the Medical College, Meerut. No-where in the said reference slip has it been mentioned that the patient was so serious that he was not in a position to be given treatment in Muzaffar Nagar, District hospital and hence he was required to be sent/referred to the Medical College, Meerut.

40. We find that if the patient/Sarfaraz was having any serious injuries on his chest, which he has stated that he was fired upon by one of the accused, and had become unconscious, certainly the first aid would have been given at the District Hospital, Muzaffar Nagar and after having given treatment, if the situation would not have been under control because of the lack of infrastructure then only he would be recommended to High Centre for treatment such as Medical College, Meerut, hence we find that there appears to be suspicious circumstances under which he was referred to Meerut, Medical College for treatment.

41. S.I. Bogesh Kumar Sharma has stated in cross-examination as PW-6 that the Crime No. of this Case is 163-A, cross-case of which is crime No. 163, which is being investigated by the S.H.O. He has not shown medical store of Farrukh in the site plan. He had not gone to the medical store of Farrukh during investigation. At how much distance, from the place of occurrence, is located the Farrukh's medical store, he cannot tell. He also has no knowledge that Farrukh is an accused in cross-case. He did not find out during investigation, as to where the Farrukh was. He had inspected the place of incident at the instance of informant, who is not an eye-witness. He had not taken the eye-witness of the occurrence to the place of incident. He had recorded statements of Ifroz, Musarraf, Gayoor on 13.3.2010 in village Harsoli. On 23.3.2010, he had recorded statement of Sarfaraz (injured) by going jail because he was accused in cross-case. He had told him that he had snatched gun and had made fire in his defence but where the said gun was, he did not inquire from Sarfaraz nor did he inquire about it from any other person/witness/informant. He did not inquire from Sarfaraz in respect of Farrukh as to where he was. He did not find out during investigation, in respect of the deceased and injured of the cross-case and their injuries. 'X' is the place of occurrence shown by him in the site plan. He has not indicated the distance of the lane from the place shown by 'X' nor could he tell today about it nor could he tell the width of the said lane. He did not get any such evidence from the place of occurrence by which it would be reflected that occurrence took place because he had gone there many days after the occurrence. On the date when he had inspected the place of incident, he did not visit the house of Naseem nor had he recorded statement of any person who was standing at Kolhu. He did not record statement in respect of the occurrence which had happened with Sarfaraz at Kolhu. He had not recorded statement of any witness who was living in the vicinity of the place of incident. At how much distance, where the houses of eye-witnesses were located from the place of incident and in which direction, he did not record statement about it. He did not go to any hospital to take statement in respect of injuries suffered by Sarfaraz. The clothes which injured Sarfaraz was wearing at the time of occurrence were not taken into possession nor was any inquiry made in that regard from Sarfaraz. He had not seen any signs of damage caused to the house of informant. Witness Sarfaraz had not disclosed to him that when he had gone to medical store of Farrukh, then he was present. Sarfaraz had stated to him that Raiyyan, Khalil and Naseem had caught hold of him while Shakir had made fire from Katta being wielded by him in his hand. Shaukat had also stated to him that he had gone to lodge report at P.S. Shahpur but the same was not written. He has also stated in his statement that Naseem had told Shakir "mar slae ko goli" but Shaukat had not stated to him that all the accused had made fire upon his son Sarfaraz but had stated about Sarfaraz having made fire. He has further stated that he had recorded statement of witness Musarraf in Harsoli on 11.3.2010 but has denied that he had submitted charge sheet erroneously.

42. It is evident from the statement of this witness cited above that he has left many important aspects to be investigated and has to a certain extent given statement against prosecution evidence itself because he has clearly admitted that at the place of incident, he did not find any such evidence which would reflect that such occurrence took place because he had gone to the place of occurrence after many days which is very serious lapse on the part of the prosecution. He also has admitted not to have recorded statement of any independent witnesses of the vicinity where this incident happened. He has also admitted not to have shown the place from where the eye-witnesses have seen the occurrence which is again a very serious lapse against prosecution case. He has also admitted that he did not inquire anything about the gun by which Sarfaraz had stated to have made fire upon the accused after having snatched away the same from the hands of the one of the accused, this is also a serious lapse. He has also admitted not to have found out about the injuries caused to the deceased and the injured of the cross-case which is very much essential to reach the right conclusion, hence we see so many lacunae left by the Investigating Officer in this case which make the prosecution case very weak in the present matter.

43. PW-7, Dr. Shukram Pal Singh, who has stated in examination-in-chief that on 26.2.2010 at 12:00 pm, he had examined the injured Sarfaraz, who was brought by Md. Hashim S/o Suleman, resident of Shernagar, who was referred to Meerut by hospital of Muzaffar Nagar, District and following injuries were found on his person:-

45. In cross-examination, this witness has stated that the injured was not admitted. He had come to the hospital at 12:50 pm but how long he remained in hospital, he could not tell. Sarfaraz was brought by Hashim S/o Suleman resident of Shernagar and injured was in fully conscious condition. He did not find any abnormality in his general condition. He had not inquired from him as to when he received these injuries and where nor did he inquire anything about the F.I.R. The person who had brought him, even from him, nothing was asked. He had informed the police of the medical college about this, by telephoning at 12:50 pm but he does not know whether police had come or not nor does he know whether the injured was X-rayed and whether the same was placed before him or not. He also does not remember whether any supplementary report was prepared by him nor does he remember whether any operation was held of the injured or not. The injury no. 2 was lacerated wound but he could not tell as to whether the blackening would come from making fire from how much distance. He could not tell whether any pellet was extracted after the operation from injury no. 2. The contusion, when it is caused, its colour is found to be red and remains so for 12 to 24 hours. Injury nos. 3 and 4 could have been of within five to ten minutes also. Injury no. 1 was lacerated wound. He has further stated that the blood gets clotted six hours after the injury is caused, he could not tell duration of the injury no. 2, although he has stated that injury nos. 3 and 4, could be manufactured. He has stated it to be wrong that in collusion with the accused he had conducted the medical examination. He has stated that he cannot tell the nature of the injury no. 2 and whether the same was detrimental for life nor could he tell the depth of the pellets, the pellets were not in front of him.

46. This witness, though has stated that he had conducted medical examination of the injured Sarfaraz on 26.2.2010 and found above mentioned four injuries on his person but has denied that any operation was conducted of the injury no. 2 for extracting any pallet nor could he tell about its gravity/seriousness because no X-ray was conducted of the same. He has also admitted that the injured was in well conscious condition and nothing abnormal was found in his general condition when he was brought there. He has gone to the extent of saying that injury nos. 3 and 4 could have been self inflicted/manufactured. There is huge difference in the injuries which were found by doctor Radhey Shyam Verma (PW-5) of District hospital Muzaffar Nagar who had noticed only one pellet induced injury over right side of the chest but no other injuries were noticed on the body of deceased by him on 26.2.2010 at 9:25 am, while on the same day at 2:50 pm, another doctor of Medical College Muzaffar Nagar i.e. PW-7 has stated that he had found four injuries on the person of the said injured. The prosecution has failed to explain the difference in convincing manner as to how the said four injuries were found on the person of the injured, while they were not found on his person at the first instance by PW-5.

47. PW-8, Dr. Ram Kumar has stated that on 27.2.2010, he was posted at Shahpur and on that day, injured Sarfaraz was brought by Constable 388 Samaryab for medical examination and the same was conducted at 3:45 pm and following injuries were found on his person:-

(i) Scrabed stitches wound (03 stitches in number) over occipital region of skull, 12 cm away from tip of left ear.

(ii) Bluish contusion, size 11 cm x 4 cm over rear side upper part of back, 5 cm away from midline of back.

(iii) Bluish contusion of size 22 cm x 2.5 cm over right side of abdomen reaching up to right side lower part of chest, 8 cm away from right nipple.

(iv) Bluish contusion of size 15 cm x 2.5 cm over right side of abdomen just reaching up to umblicus.

(v) Bluish contusion of size 6 cm x 2 cm over left side of abdomen just reaching up to umblicus.

(vi) Bluish contusion of size 5 cm x 2 cm over right shoulder joint,

(vii) Multiple lacerated wound (scrabed), eight in number in an area 13 cm x 10 .5 cm over right side upper part of chest, size (0.6 cm x 0.5 cm x skin deep) (large) and 0.25 cm x 0.25 cm x skin deep (small), in size 2.5 cm away from right nipple. Blackening present, a complaint of pain over right side of chest.

(viii) wounds are palpable. Injury kept under observation advised X-ray.

(ix) Scrabed lacerated wound of size 0.5 cm x 0.5 cm x skin deep over right upper arm around 10.5 cm away from shoulder joint, blackening present, wound is palpable. Injury is kept under observation, advised X-ray.

(x) Complaint of pain over head and left side upper part of that.

48. Injury nos. 7 and 8 were kept under observation (for nature and cause of injuries). Rest of the injuries were simple in nature. All injuries were about two days old in duration. No opinion could be given about nature and cause of injuries for injury no. 1. Opinion for injury no. 9 is NAD. Injury nos. 2, 3, 4, 5 and 6 were caused by hard and blunt object.

49. He has further stated that these injuries were possible to have been caused on 25.2.2010 at 2:30 pm. He has proved the injury report Ext. Ka-9 in his hand writing. He had given X-ray slip to the injured in respect of chest and right hand, which is Ext. Ka-10.

50. In cross-examination, this witness has stated that who had stitched injury no. 1 and when, he has no knowledge. The injured had stated to him that he had got the stitiches done from some private doctor. The marks of contusion were not found of blue colour on his body, which were all on non vital part, which could have been self-inflicted. In the duration of injury stated by him, there could be difference on either side of five to six hours. Regarding injury nos. 7 and 8, advise was given for X-ray but the same was not placed before him. He has mentioned, blackening which could also be that of scrap. He does not recollect whether he was wearing any clothes on injury nos. 7 and 8 or not. These injuries were skin deep. The injured did not tell him as to where he received these injuries and how. In injury no. 9, he has simply stated about pain and no other manifest injury was there. No operation was conducted of injury no. 7 nor any pellet was extracted. He has denied that any forged medical report was prepared by him. From the statement of this witness, it is apparent that as many as nine injuries, he had found on the body of the injured on 27.2.2010 i.e. two days after the occurrence which shows that there is a lot of difference in the injuries which were found initially by the PW-5 and thereafter by PW-7 and now by PW-8.

51. From the prosecution side, no justifiable reason for such enhancement in number of injuries has been given. This witness has also clearly stated that no operation was performed nor did he extract any pellet from the injury nos. 7 and 8 nor any X-ray report was placed before him so as to tell the nature of injury whether they were grievous or simple with respect to which direction was to be kept under observation.

52. Dr. Rishu Singla has been examined as PW-9, who has stated that on 27.2.2012, she was posted in Sardar Ballabh Bhai Patel Hospital, Meerut as trainee and on that date, she had prepared X-ray plate of the injured Sarfaraz and had found following injuries on the basis of X-ray no. 1:-

PV view Lateral view Well defined oval radio opacities seen over right hemithorax and sternal region. Both lungs fields show normal bronchovascular makings.

Cardiac size is within normal limits.

53. She had found following injuries on the basis of X-ray 2:-

Well defined lucent area seen in parietal region with scalloping of inner table of skull etiology. No obvious fracture line noted.

54. She has found following injuries on the basis of X-ray 2 Abdomen AP No free gas is seen under domes of diaphragm. No abnormal air fluid level are seen.

55. She has proved her medical examination report as Ext. Ka-11. In process this witness has stated that on the basis of said report, there was no initial part of the patient in injured condition. She could not tell whether any pallet was extracted from his body. X-ray was conducted by the technician, therefore, with respect to X-ray plates and negatives only technician could reply. After having prepared the X-ray reports, the same was given by her to the Department who had collected the same from there, she could not tell. She has denied to have prepared any false X-ray report. From the statement of this witness, it is absolutely clear that she has given clear statement that no internal part of the said injured Sarfaraz was found in injured condition. She has also refused to have any knowledge whether any pallet was taken out from the body of the said patient, therefore even her statement does not prove that there was any pallet received from the body of the injured.

56. From the side of defence, SI Bageshwar Sharma (DW-1), has stated in examination-in-chief that on 22/02/2010 he was posted at police station Shahpur as SI, while Shri Promod Kumar Panwar was posted as SHO. On the said date, he had filled up panchayatnama of deceased Naseem son of Shamshuddin, resident of Harsoli related to case crime no. 163 of 2010 under sections 147, 149, 148, 452, 307, 302 IPC and 7 Criminal Law Amendment Act, which is available on the summoned file of ST No. 957 of 2010 (State vs Sarfaraz and others), the same is in his handwriting, which is Exhibit kha-2. In the summoned filed, paper no. 8/1, relating to fard concerning taking into possession the ordinary soil and bloodstained soil which was also in his handwriting which is Exhibit kha-3. On 25/02/2010 he had taken into possession one empty cartridge of 12 bore and one empty cartridge of 315 bore and had prepared fard of it, which is Exhibit Kha - 3 (there appears to be repetition of kha - 3, as it should have been kha - 4 but even kha 4 is numbered for site plan, hence it would be appropriate to refer it as fard recovery of empty cartridges). He has further stated that he recognises the signature and handwriting of Shri Pramod Kumar who, on 25/02/2010, had inspected the place of occurrence and had prepared the site plan, which is paper no. 9 in the summoned file and is being marked as Exhibit Ka - 4, photocopy of the same is being filed by him after being verified. The true copy of the chick F.I.R. of the case crime no. 163 of 2010 is available on file, which is correct as per the original, which is signed by Shri Pramod Kumar. The case crime no. 163 of 2010 was investigated by Shri Pramod Kumar and after investigation charge sheet was submitted in that case, true copy of which is available in the file and the same is marked as Exhibit Kha 5.

57. In cross-examination this witness has stated that SHO Pramod Kumar is alive and is posted in police Dept as of now. When Shri Pramod Kumar had gone to the place of incident, he had prepared the site plan in front of him. He does not know as to whose statement were recorded by him during investigation unless he is permitted to see the case diary. He had simply got the information of this case and at that time he was posted at police Choki Harsoli, where the incident had occurred as the name of the place of village is also Harsoli. From the police Choki the village Harsoli was located at a distance of about 1 ½ kilometre on the road which goes to the village Shahpur Budhana. There are many passages for going to the village. No CD is maintained at police Choki Harsoli. The police personnel who had come from PS Shahpur, from him only he had come to know about the occurrence that some incident had happened in the village. Information was received in the evening at about 4:30 PM. From the police station, if one would come to Muzaffarnagar, the place of incident would be located at a distance of about 2 - 2 ½ kilometre from the passage which goes to their village, because of this he had not gone to the place of incident first, rather had gone to the village first. They had gone to the Government hospital of Muzaffarnagar straight and at that time he was accompanying Shri Promod Kumar Panwar. At the time when the proceedings of panchayatnama were done, Promod Kumar Panwar was present and the said proceedings were conducted in his supervision. It is right to say that the panchayatnama of the deceased Naseem and all connected papers therewith i.e. photo Nash, challan Nash, Chitthi RI , Chitthi CMO, do not bear signatures of the SHO. There was a lot of crowd in the hospital because of which problem of maintaining law and order had arisen, because of which SHO had become involved in it. He has stated it to be wrong that he was giving false statement about presence of SHO and that SHO Promod Kumar Panwar was not present at the time of preparation of panchayatnama. The panchayatnama proceedings continued up to 6.50 p.m. i.e. it took about 1 hour 40 minutes and at the time of filling up panchayatnama, the injuries of the deceased were inspected, opinion of panchas was recorded and the dead body was sealed and given to the constable concerned along with documents and thereafter only the time of closure of panchayatnama was recorded. The panchayatnama was filled up in the District hospital and the dead body was handed over at 6:50 PM on 25/02/2010 to the constables. From the District hospital, the police line would be about 1 kilometre away and in reaching from police station there, it would take about half an hour's time. Challan Nash was prepared by him. At the back of the panchayatnama papers entries were made of GD no. 57 time 23.40 hours on 25/02/2010 and the same is signed by the then RI. At the time of filling up of panchayatnama, chick report was with him which had been read by him. In the said chick report, time of occurrence is recorded 2 PM on 25/02/2010 and nowhere in it, place of death has been endorsed. It is right to say that in challan Nash, time of death has been indicated as 2.50 p.m.. It is also right to say that the witnesses who are witnesses of panchayatnama, have not been made witness in F.I.R.. It is also right to say that he was not investigating officer of this case. On his own he has stated that he had recorded the time of death as 2.50 p.m. on the basis of information available. He had given statement to the IO, but he does not remember whether he had given information to him about the time shown of death in challan Nash or not. It is right to say that paper no. 6/1 is signed by RI and it bears seal of District hospital Muzaffarnagar and beneath the PM No. 166, 8.14 a.m. time and 26/02/2010 date is endorsed and according to available papers such as challan Nash, the post-mortem was held on 26/02/2010 in the morning at about 11 AM after receiving papers at 10 - 50 a.m. , it has been endorsed. After filling the panchayatnama, they (he and the SHO along with police force accompanying them) had gone to village Harsoli, but at what time they had reached there, he does not recollect, but after concluding the proceedings of panchayatnama they had reached village Harsoli. It had become too dark that necessity was felt to switch on the lights, but in the reports which were prepared on the spot and are marked as Exhibit kha - 6 and, kha - 7, no mention is made of the source of light. In the F.I.R. it was recorded as to at whose house or at which place the occurrence happened, but in Exhibit Kha - 8 and Exhibit Kha - 9 it has not been specifically mentioned as to from which house or from which specific place the ordinary floor and bloodstained floor was taken and similarly there was no reference of the same in other Exhibit, only place of occurrence and the case crime no. is mentioned. The place of occurrence which he has referred was connected with case crime no. 163 of 2010. This place of incident is located in the house of deceased Naseem and in the house of informant Irfan. This witness was shown paper no. 9, which is site plan of the occurrence, where-after he stated that the same was prepared by him and the same was a copy of the site plan prepared by SHO. He has also stated that on the site plan prepared by him, signature of Promod Kumar Panwar is also available. The site was visited by the investigating officer Promod Kumar Panwar during investigation.

58. It is further stated by this witness that the house of the informant is three-storeyed . The floor was existing in the house and was broken from the gallery, where the blood of the injured persons was lying and also the empty cartridge of 12 bore and 315 bore were found lying, which were taken in police possession, regarding which SHO, he himself and the witnesses Tahir and Shokin Hasan had put their signatures when they were sealed and after this much proceedings, on the same night, their entry was made of return to police station. The higher police authorities had already reached the place of incident before their reaching there. The circle officer had not issued any instructions in his presence for the investigating officer. It was wrong to say that all the proceedings were done ante-dated and anti-timed and that the place where the recovery is stated to have been made, the same was not done on 25/02/2010 by him. He has stated that the murder case was not investigated by him nor had he recorded statement of witnesses of that case, rather the same were written by Promod Kumar Panwar who was alive but he has no knowledge where he was posted. The charge sheet was not prepared in his presence.

59. This witness has clearly proved that in the cross case the investigating officer Shri Promod Kumar Panwar had conducted the investigation and all the challani documents which have been mentioned above were proved by him which were found in the concerned file of ST. This witness is nothing but a formal witness who himself has conducted the investigation in the present case.

60. Dr. Radheshyam Verma has been examined as DW 2 who was posted on 26/02/2010 at District hospital Muzaffarnagar. He has stated in examination in chief that on 26/02/2010 at about 11 AM post-mortem of Naseem son of Shamshuddin was conducted by him at the mortuary of District hospital, whose dead body was brought by two constables along with necessary papers in sealed condition. He had found following ante mortem injuries on the body of deceased:-

1 - Pellet induced injuries, size 1.0 cm x 1.0 cm x muscle deep on the front of the right side of forehead, it is 4.0 cm above from the right side of eyebrow, margins were inverted and blackening present.

2 - Pellet induced injuries size 1.0 cm x 1.0 cm x muscle deep. It is 5.0 cm below from left-side ear.

3 - Pellet induced injuries size 1.0 cm x 1.0 cm x depth not probed, present on the neck. It is 6.0 cm below from the angle of the left side mandible.

4 - Pellet induced injury size 1.0 cm x 1.0 cm x muscle deep present just above from the left side clavicle. One pallet has been recovered, which was sealed.

5 - Pellet induced injuries size 1.75 cm x 1.5 cm, x chest cavity deep on left side chest, near nipple, margins are clear inverted, blackening present and margins are regular.

6 - Wound of exit size 2.5 cm x 1.75 cm x chest cavity deep present on left side chest wall was rated as just below from the left and scapular border. Its margins are outwards and irregular.

61. It was noted in the margin that maximum pellets had injured tissues and had returned back from the same path like injury number 1, 2 and 3.

On internal examination after opening skull, the brain was found yellow and it was found lacerated also. The 5th, 6th, 8th and 9th ribs of the chest were found broken. The left lung was lacerated and in left-side pleural cavity, 1.5 litres of blood was found. Heart was lacerated. Cause of death was shock and haemorrhage as a result of fire arm weapon induced injuries. The post-mortem report of the deceased was available in the summoned file of ST no. 957 of 2010, which was in front of him, true copy of the same after being compared with the original was being filed which is Exhibit Kha 6.

62. In cross-examination this witness has stated that in the end of month of February the rigor mortis after beginning within 5 to 6 hours of death would spread in the whole body within 3 hours to 36 hours, which will remain present and thereafter after about one and a half day that would start passing off. It is right to say that rigor mortis would shift to the lower limbs at the last, after the death. It is also right to say that in the present case the delay of 36 hours is possible. In the present case the heart of the deceased had lacerated, in that condition all the parts of the body would stop functioning forthwith and in such a condition the death would be instantaneous. In the present case, the layer which remains stuck to the upper part of the lungs called pleura, the 5th, 6th, 8th and 9th ribs were found broken. Regarding injury no. 4 he had not expressed any opinion in the post-mortem report. Regarding injury no. 1, 2 and 3 he has recorded that the pellets, the route by which they had entered, had returned out of body by the same route. The death had occurred due to injury caused to the heart and due to laceration of the lung on the left side as that resulted in profuse bleeding. The death had possibly happened because of the injury which was caused near left nipple. It is right to say that he had not mentioned in post-mortem report that the recovered pellet, bullet were sealed and lastly the same were given to constable. The mortuary of District hospital was located at a distance of about 6 kilometre on Saharanpur Road, endorsement regarding which was got made by him. The papers which were serialized by him and PM no. was endorsed and seal was fixed by him and these papers were given to the constables. It is right to say that on paper 6/1 available on the file, police prapatra no. 33 is endorsed which was serialized and signed by him. On the said paper, beneath the illegible signature of RI police line, Muzaffarnagar, date 25/02/2010 is endorsed and also seal of District hospital, Muzaffarnagar is affixed. He has no information in respect of any Government order or order of higher authority in respect of post-mortem to be conducted in District hospital after 5 PM. He had received papers relating to the post-mortem on 26/02/2010 in the morning at about 10:50 AM. In injury no. 15 and 5 there was blackening. He cannot tell whether blackening was possible to have been caused if fire was made from a distance of less than 3 feet. It is right to say that injury no. 5 and 6 were corresponding injuries and the trajectory of injury no. 5 and 6 was from top to downward. He had observed full precaution while conducting the post-mortem.

63. Dr. Pradeep Mittal has been examined as DW 3 who has stated in examination in chief that on 25/02/2010 he was emergency medical officer in District hospital Muzaffarnagar and on that date he conducted medical examination of injured Khalil son of Shamshuddin at about 3.15 p.m., who had been brought by constable 634 Ram Mehar Singh and following injuries were found on his person: -

1 - Lacerated wound 0.75 cm, x 0.25 cm, x depth not probed on right side of face, 2 cm, away from right angle of mouth, fresh bleeding present, kept under observation advised x-ray face.

2 - 2 lacerated wounds 0.75 cm, x 0.25 cm, second one 0.3 cm x 0.3 cm depth not probed, 4 cm apart each other present on front of left shoulder, 2 cm above left clavicle, bleeding present from the wound, kept under observation, advised x-ray chest AP view.

3 - 2 lacerated wound 0.75 cm x 0.25 cm, second one 0.3 cm x 0.3 cm depth not probed, present on front of left upper arm, 10 cm above left elbow, 8 cm apart each other, bleeding present from wounds, kept under observation, x-ray advised left upper arm.

4 - Lacerated wound 0.7 cm x 0.3 cm depth not probed, right side of chest 2.5 cm away right nipple at 3 o'clock position, depth not probed bleeding present from wound, kept under observation and x-ray advised of chest AP view.

5 - Lacerated wound 0.75 cm x 0.3 cm, depth not probed, on outer aspect of the left side, 15 cm above left knee, kept under observation advised x-ray left thigh.

64. All the injuries' duration was fresh and for finding out the nature of injuries, the patient was referred to surgeon. He has further stated that he had prepared medical examination report of this injured which is Exhibit Kha - 8.

65. He has further stated that on the same day at 3.20 5 PM he had conducted medical examination of injured Shakir son of Reyan, who was also brought by the same constable and found following injury on his body: -

1 - lacerated wound 0.7 cm x 0.3 cm, right side of head, 9 cm above right eye, depth not probed, bleeding present, kept under observation, x-ray advised of skull. The medical exemption report of this injured was prepared by him which is Exhibit Kha - 9.

66. He has further stated that on the same day at 3:35 PM he medically examined the injured Raiyyan was also brought by the same constable at 3:35 PM and found following injuries on his body: -

1 - lacerated wound 0.7 cm x 0.3 cm x depth not probed medial aspect of left-hand, 2 cm above base of left little finger, bleeding present, kept under observation advised x-ray left hand.

2 - lacerated wound 0.3 cm x 0.3 cm x depth not probed on entire aspect of the left forearm, 2 cm above the left wrist joint, bleeding present, kept under observation, x-ray advised of left forearm.

67. All the injuries' duration was found fresh and for knowing the nature of the injury the patient was referred to orthopaedic surgeon. He has further stated that the medical examination reports prepared by him was available in the summoned file of ST number 957 of 2010, true copies of them were available in the present file which were verified by him. The medical examination report of Khalil Exhibit Kha - 10 is verified by him.

68. In cross-examination this witness has stated that it is right to say that in the hospital for medical examination to be conducted, the registers are maintained and the injuries of all the three injured must have been noted in MLPC register and in the said register serial no. would have been indicated. In the present case since the injured had come through the police station, hence their serial number and the injuries would have been noted in MLCP register. It is further stated that no serial number has been entered in register of the District hospital, of the injury memos of all the three injured. It is also right to say that in all the three medical reports it has not been mentioned as to which officer had sent them for medical examination. It is also right to say that in none of the three medical reports crime no. and details of the case have not been mentioned. It is also right to say that it is not mentioned in all the three reports as to what was the general condition of the these injured at the time of inspection but it is right to say that in case the general condition of the injured would have been poor, they would have been admitted but it was not so in the present case. It is also right to say that the injuries sustained by all the three injured, their dimensions were of identical type. He could not tell in this regard as to whether the pellets of 12 bore would disperse in how much area. It is also right to say that it has not been indicated by the Doctor as to what was the depth of the injury, no blackening was found and it was also not mentioned as to by which weapon they were caused to all the three injured. In the reference slips reference is made to surgeon also. At no point of time had he come to him in order to seek his opinion as to whether the injuries were ordinary or grievous. Without seeking his opinion he was not supposed to give his opinion hence no opinion was given by him. He has denied that because of the police having told him, he had noted the injuries. However he has stated it to be right that he had not given any treatment.

69. After having heard both the sides the trial court has convicted the accused appellants under the above-mentioned sections which is being challenged in the present appeal in which it is argued by the learned counsel for the appellants that this case is concocted by the complainant/informant side in order to save themselves from conviction in crime number 163 of 2010 which was lodged from the side of the accused against the informant of this case and his other family members. It was argued that the occurrence is shown to have taken place on 25/02/2010 at 14.30 p.m. while the F.I.R. has been got registered on 10/03/2010 at 18.30 p.m. after considerable delay while distance from village Harsoli , where the occurrence took place, from the police station was just 7 kilometre. The explanation given of this delay is totally wrong that report was not being written and hence assistance was taken of DIG Saharanpur whom the informant had to approach for getting his case registered against the accused appellants. It is correct to say that this case being a false case, the same was not being registered by the police. It was also argued that there were 3 injury memos of the injured Sarfaraz in the present case, and in the initial injury memo which is proved by PW 5, there was only one injury shown while in the second injury memo which was proved by PW 7 the number of injuries swelled to 4 while thereafter in the third injury memo proved by PW 8 the number of injuries further swelled to 9. It is apparent from it that the injured was bent upon to prove that he had suffered so many injuries while in fact there was no such injury caused to him and all these injuries are of superficial nature and the injury memos appear to have been obtained showing false injuries and yet the trial court has falsely held the accused appellants guilty under sections 307 IPC. The main aim of slapping this false case against the accused appellants by the informant was only to save themselves from conviction in the case lodged by the accused side against the informant side by taking false plea that it was in self-defence that Sarfaraz had made fire upon the deceased Naseem. In fact it was Sarfaraz and all other co-accused of crime no. 163 of 2010 who had come to the house of informant of the crime no. 163 of 2010 and had opened fire upon the complainant side in which Naseem had died and his other companions had received injuries, in which they have been rightly held guilty. The trial court has made wrong interpretation of the evidence adduced from the side of the prosecution in this case, hence the conviction of the accused appellants needs to be quashed.

70. On the other hand learned counsel for the informant as well as learned AGA vehemently opposed setting aside the impugned judgment and have argued that the trial court's judgment has been passed absolutely in accordance with the settled norms because as many as 9 injuries were caused by the side of the accused appellants and delay in lodging F.I.R. was well explained, therefore the trial court's judgment should be upheld.

71. After having gone through the entire evidence we find that as per F.I.R. the prosecution case is that occurrence took place on 25/02/2010 at about 2:30 PM when the son of informant Sarfaraz had gone to the medical store of Farrukh to take medicines for his father, there the appellants met him armed with Lathi, country made pistol and gun and on the strength of these weapons tried to drag Sarfaraz towards their house and when they reached in the lane which was by the side of the house of the accused, Sarfaraz was assaulted by appellant Khalil and Raiyyan with the aid of lathis and Raiyyan, Khalil and Naseem who was armed with a gun, had caught hold of his son and Shakir was told "mar sale ko goli", then Shakir made fire upon Sarfaraz with the country made pistol in his hand and when Naseem was about to make fire, his son showing courage and seeing his life to be in threat snatched away gun from the hands of Naseem somehow, even thereafter the accused appellants along with Naseem chased his son who, in order to save his life made fire upon accused, and saved his life by getting inside his house. While the accused, whose family was big, continued to knock at the door of the informant, which was closed, returned. Thereafter somehow concealing themselves, informant along with the injured Sarfaraz reached his in-laws place Sher Nagar, where in Muzaffarnagar hospital Sarfaraz was shown to doctors but because of being seriously injured he was referred to the Meerut medical college where he was medically examined. The informant because of the fear of accused had informed DIG, Saharanpur about the occurrence but his report was not registered.

72. We have already analysed the statement of informant who has been examined as PW 1 above and have found that the same was not trustworthy. He is not an eye-witness of the occurrence and the reason for delay in lodging F.I.R. also does not appear to be justified. The reason given that he had fear from the accused because of which he did not go to the police station to lodge F.I.R., seems to be unbelievable. In his testimony cited above we have noticed various discrepancies on the basis of which his statement is found to be discardable. The trial court's verdict in respect to finding the delay in filing of F.I.R. to be justified seems to be erroneous to us. It would also be worth noting here that in the case lodged from the side of appellants/accused being crime no. 163 of 2010 the occurrence is reported to be of 2 PM of 25/02/2010, in which there were seven accused including Sarfaraz who are stated to have participated, in which Naseem had died, while appellants had received injuries, while in the present case the occurrence is reported to be of 2:30 PM of the same date i.e. half an hour after the first occurrence had already taken place. It would be unbelievable that the occurrence which is found to have already taken place at 2 PM in which the appellant/accused along with deceased Naseem had already been assaulted with deadly weapons in which Naseem had died, how could Naseem be involved in an incident which is being stated of the same date to have happened at 2:30 PM. It clearly proves that the version of the informant of the present case is absolutely false and has been set up only with a view to defending themselves from the conviction to be awarded in case crime no. 163 of 2010. No justification/clarification has been provided from the side of informant in this regard in the present case except that the learned counsel for the informant side continued to harp on the defence that the injury which were received by Naseem had been received when Sarfaraz had made fire upon him in defence. We have already noticed above that in the statement of Sarfaraz as PW 2 he has clearly stated that he could not see as to whom the fire hit when he had made the same while being chased by the appellants. In his testimony we have noticed so many discrepancies with respect to the place of incident and in the manner of incident/assault that the same is not found to be confidence inspiring. The other eye-witness who has been examined from the side of informant namely, Musharraf Ali , PW 4, his testimony has also not been found believable by us because he has claimed to be an eye-witness but he being a close relative of the informant and injured, appears to have falsely stated that he was also present at the time when Sarfaraz had gone to take medicines from the medical shop of Farrukh. Earlier it was mentioned by us that the statements of PW 2 and PW 4 were also required to be analysed in the light of medical examination report of the injured Sarfaraz. We have already found that the injury memos which have been presented from the side of prosecution in this case do not appear to be credible because when for the first time the injured was taken to a doctor in Muzaffarnagar and when he was presented before PW 2, he had noticed only one injury to have been sustained by him which was pellet induced injuries on the right side of chest and trauma on posterior chest wall and accordingly was referred to Meerut and when the said injured was examined by PW 7 in Medical College, Meerut he was found to have sustained 4 injuries which have been cited above. No explanation was given from the side of prosecution as to how was it possible that initially no injury was noticed upon the body of said injured except one which has been mentioned above while on the same day at a gap of few hours he was found to have suffered as many as 4 injuries. Not only this, after he was again examined two days after the said examination by PW 8 he was found to have sustained 9 injuries by a Doctor in Government hospital of CHC Shahpur, which is very surprising to us. None of these doctors has stated about the nature of the seriousness of the injuries of the said injured because no x-ray report was submitted before them. It is also very surprising that PW 4, before whom he was produced for the first time, would allow him to be referred to Higher Centre for treatment without noticing any serious injuries to have been found caused to him. It seriously indicates that the said injured witness was bent upon obtaining injury memos to show that he had suffered serious injuries. Doctor, PW 9 who has proved Exhibit Ka 11 which is x-ray report also has stated that she did not find any internal injury to have been caused to Sarfaraz nor any of the doctors could tell whether any pellet was extracted from the injury of the said injured. The medical reports cited above do not corroborate the statements of PW 2, injured himself as well as of PW 4 who is stated to be an eye-witness.

73. We also find that the place of occurrence which is shown in the site plan, Exhibit Ka 6 as ''X' is shown to be at the passage and not in the lane to the South of the house of Naseem, where according to F.I.R. the injured Sarfaraz is stated to have been dragged by the appellants and the deceased from in front of the shop of Farrukh which was about 50 yards away across the said passage on the other side. The statement of PW 4 as well as PW 2 indicate that Sarfaraz was started being beaten in front of the shop of Farrukh after being encircled by the accused appellants and was also fired upon by one of the appellants, whereafter he ran from there towards his house snatching away the gun from the hands of Naseem and while running, he made fire upon the accused side but who got hit he could not tell. Therefore the defence of the prosecution side that fire was made upon the appellants in self-defence by Sarfaraz does not appear to be believable version. The place of occurrence also does not appear to be established from the statements of PW 2, and PW 4 to be the place where actually the IO has shown the occurrence to have taken place. We have also noticed in our earlier part of the judgment that the IO was too lax in conducting investigation as various necessary information which were required to be gathered were omitted by him from being collected and therefore the same would be treated to be a ham-handed investigation.

74. Thus we find that the trial court has wrongly convicted the accused appellants under the above-mentioned sections and that they deserve to be acquitted.

75. All the appeals deserve to be allowed. Appellants are on bail. Their bail bonds as well as personal bonds stand discharged. They shall be released forthwith in the present case unless wanted in any other case subject to condition of filing bail bonds u/s 437A Cr.P.C. to satisfaction of trial court

76. All the Appeals stand allowed.

77. A certified copy of this judgment shall be transmitted to the trial court forthwith for compliance at once along with the lower court regard.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order date: 31.7.2019 A.P. Pandey