# Aftab Ahmad & Ors. (In Jail) v. State

- **Citation:** (2020) 1 ILRA 698
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-10
- **Case number:** Criminal Appeal No. 1294 of 1985
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aftab-ahmad-ors-in-jail-v-state-45696
- **Pages:** 23

## Headnote

Criminal Law - Indian Penal Code -
Sections
147,
323/149,
307/149
&
302/149 - Appeal against conviction.

It is well settled by a catena of decisions that it
is the duty of the prosecution to prove, and, if
necessary, by examining an expert, that the
particular injury has been caused in the
manner alleged by the prosecution, otherwise,
the accused may be entitled to the benefit of
doubt. (para 43)

The injured witnesses do not leave the real
culprits and falsely implicate innocent persons
but at the same time, there may be cases
where the injured persons have themselves
committed wrong and out of fear of disclosure
about their own wrong doing, they twist the
real facts to demonstrate their innocence by
introducing incorrect version of the incident.
(para 53)

The possibility of the accused forming an
unlawful assembly to plough their own field
becomes doubtful. Secondly, injuries from hard
and blunt object found on the body of the
deceased has no explanation. Thirdly, the gun shot
injury found on the body of the deceased could not
have been from a gun, as alleged, but might have
been from country-made pistol. Fourthly, the
deceased had suffered hard and blunt object injuries
of which there was no explanation in the prosecution
evidence. (para 55)

Appeal is allowed. (E-2)
List of cases cited: -

## Text

_Characters 0–39,935 of 77,746. This is a partial read: ask again with offset=39935 for what follows._

698 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 698

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No. 1294 of 1985

Aftab Ahmad & Ors. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Mukhtar Alam, Sri T. Rathore, Sri M.D.
Singh, Sri S.R. Ullah, Sri S.K. Sharma, Sri
N.I. Jafri

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Sections
147,
323/149,
307/149
&
302/149 - Appeal against conviction.

It is well settled by a catena of decisions that it
is the duty of the prosecution to prove, and, if
necessary, by examining an expert, that the
particular injury has been caused in the
manner alleged by the prosecution, otherwise,
the accused may be entitled to the benefit of
doubt. (para 43)

The injured witnesses do not leave the real
culprits and falsely implicate innocent persons
but at the same time, there may be cases
where the injured persons have themselves
committed wrong and out of fear of disclosure
about their own wrong doing, they twist the
real facts to demonstrate their innocence by
introducing incorrect version of the incident.
(para 53)

The possibility of the accused forming an
unlawful assembly to plough their own field
becomes doubtful. Secondly, injuries from hard
and blunt object found on the body of the
deceased has no explanation. Thirdly, the gun shot
injury found on the body of the deceased could not
have been from a gun, as alleged, but might have
been from country-made pistol. Fourthly, the
deceased had suffered hard and blunt object injuries
of which there was no explanation in the prosecution
evidence. (para 55)

Appeal is allowed. (E-2)
List of cases cited: -

1. St. of U.P. Vs. Ballabh Dass, AIR 1985 SC
1384

2.
Woolmington
Vs.
Director
of
Public
Prosecution, 1935 AC 462

3. Sharad Birdi Chand Sharda Vs. St. of Mah.,
AIR 1984 SC 1622

4. Mohinder Singh Vs. State AIR 1953 SC 415

5. Laxmi Singh Vs. St. of Bihar (1976) 4 SCC
394

6. Dashrath Singh Vs. St. of U.P. (2004) 7 SCC
408

7. Vadivelu Thevar Vs. St. of Madras AIR 1957
SC 614

8. Gautam Lal Vs. St. of U.P. (1981) CrlJ 1187

9. Balak Ram Vs. St. of U.P. (1975) 3 SCC 219

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. This appeal has been preferred by
appellants, namely, Aftab Ahmad, Laiq
Ahmad, Imtiaz Ahmad @ Addey, Sukha,
Afzal Ahmad, Chootey Mian @ Afsar
Ahmad, Chhutawa @ Sakeel Ahmad and
Bullar @ Abdul Sattar against the
judgment and order dated 14.05.1985
passed by VIth Additional District and
Sessions Judge, Bareilly in Sessions Trial
No. 144 of 1982 arising out of case crime
no. 231 of 1979, police station Bhojipura,
1 All. Aftab Ahmad & Ors. Vs. State
699
District
Bareilly,
whereby
all
the
appellants have been convicted under
section
147,
323/149,
307/149
and
302/149 Indian Penal Code and the
appellant nos. 1, 2, 3 and 6 have also been
convicted under section 148 IPC. The
appellants have been sentenced for life
imprisonment under section 302/149 IPC
and with respective lesser punishments for
other offences mentioned above and all the
sentences were to run concurrently.

2. According to the prosecution
version, the incident in question is alleged
to have taken place on 16.12.1979 at about
01:30 P.M., for which the first information
report is alleged to have been lodged on
the same day at about 03:30 P.M. by Jamal
@ Jamaluddin, who also received injuries
in the incident. The prosecution case as
narrated in the first information report is
that the first informant was having
litigation regarding his land with one Sagir
Ahmad S/o Abdul Rahim, resident of his
village, in which the informant succeeded
and was in possession of the land. On
account of this, Sagir Ahmad and his
family members bore a grudge with the
informant and his family members and
they wanted to grab possession of the land
illegally. On the date of incident, at about
01:30 P.M., when the first informant Jamal
(Jamaluddin) and his sons Khairuddin (the
deceased), Ashfaq (PW2) and Riyazuddin
(PW1) were plowing their field, the
accused persons, namely, Sagir Ahmad
S/o Abdul Rahim (died during trial), Aftab
Ahmad S/o Iqbal Ahmad (Appellant no.1),
Chhotey
Mian
S/o
Sagir
Ahmad
(Appellant No.6), Addey S/o Sagir Ahmad
(Appellant No.3), Laeeq Ahmad S/o Jamil
Ahmad (Appellant No.2) armed with guns
and Afzal Ahmad S/o Sagir Ahmad
(Appellant No.5), Chhutawa S/o Khaleel
Ahmad (Appellant No.7), Sukha S/o Jamil
Ahmad (Appellant No.4), Bullad S/o Nazir
Azmad (Appellant No.8), armed with
lathis, came to the field and started
abusing and threatening informant side
and started plowing the field with their
tractor. When Khairuddin (the deceased)
tried to stop them, accused Sagir Ahmad
shouted that this Khairuddin is posing
himself more than what he actually is and,
thereafter, fired upon him from his gun,
due
to
which
Khairuddin
sustained
injuries, fell on the spot and died. Other
accused Chhotey Mian, Laeeq Ahmad,
Aftab Ahmad started firing upon Ashfaq
from their guns causing him injuries. The
other accused persons assaulted the first
informant and his son Riyazuddin by lathi.
It is alleged that the accused persons after
killing Khairuddin and causing injuries to
first informant and his sons Riyazuddin
and Ashfaq ran away towards village
along with their tractor, whereas the dead
body of Khairuddin was lying in the field.
It is stated in the first information report
that as the condition of Ashfaq was
serious, the first informant took Ashfaq
and Riyazuddin to Bareilly Hospital
whereas the written information to the
police station was being sent through
Mohd. Ayub @ Doctor S/o Mohd. Jahur
Ahmad, who lodged the first information
report at police station Bhojipura on the
same day, at 03:30 P.M., giving rise to
case crime no. 231 of 1979, U/s 147 , 148,
149, 302 ,307,323 IPC. In the first
information report, it is also stated that the
aforesaid incident was witnessed by Habib
Ahmad S/o Khaleel
Ahmad, Abdul
Kareem S/o Mohd. Raza, Rafeeq Ahmad
S/o Abdul Haq and few others.

3. The record further reveals that
after registration of the first information
report, the investigation commenced and
the Investigating Officer went to the spot,
700 INDIAN LAW REPORTS ALLAHABAD SERIES
prepared inquest report, recovered blood
stained soil and empty cartridges etc, from
the spot and prepared memo of recoveries
and also prepared site plan. After inquest,
the dead body was sent for post mortem
examination which was conducted on
17.12.1979 at District Hospital, Bareilly
by Dr. J.N. Bhargava (C.W.-2), the then
Medical Officer, Bareilly and in his report
(Ex. Ka-16) noted following ante mortem
injuries on the person of the deceased: -

"1. Gun shot wound of entry 0.5
cm x 0.5 cm x skin deep on right cheek 3.5
cm below lateral & of right eye;

2. Contusion 6 cm x 2 cm on
right side of chest upper part 8 cm below
tip of right shoulder;

3. Contusion 8 cm x 2 cm on
right side of chest 5 cm below right nipple;

4. Multiple gun shot wounds of
entry in an area of 30 cm x 27 cm on front
lower part of mid of abdomen pelvic
region and front and outer aspect of right
thigh 11 cm above knee joint. Blackening
present. Average size 0.4 cm x 0.4 cm. Skin
muscle and cavity deep 14 shots were
recovered from thigh region.

5. Abraded contusion 10 cm x 6
cm in front of right leg upper part 8 cm
below right knee joint underneath. Both
bone fractured."

The
doctor
noticed
that
peritoneum was punctured under injury
and in the cavity 1 litre fluid was present
with fecal material present. In all 25
shots/pellets were recovered. The cause of
death of the deceased was mentioned on
account of shock and haemorrhage due to
ante mortem injuries.

4. The record also reflects that
medical
examination
of
the
injured
persons
namely,
Ashfaq
(PW2),
Jamaluddin (informant) and Riyazuddin
(PW1) was also conducted on 16.12.1979
at District Hospital, Bareilly and as per
medical examination report (Ex.Ka-13),
following injuries were noticed on the
body of the injured Ashfaq:

"1. Lacerated wound 5 cm x 1/2
cm x Bone deep on Rt. Side scalp 8 cm
above Rt.-ear.

2.
Abraded
contusion
with
traumatic swelling 7 cm x 4 cm on Lt. Side
forehead.

3. Multiple gunshot wounds of
entries with inverted margins, in the area
of 12 cm x 24 cm x U/o on Lt. Upper
lateral hip, Lt. flank, Lt. lower lateral
chest wall. No blackening and tattooing
present over the wounds. Disbursement is
about 2.5 cm, oozing of blood present.

4. Four gunshot wounds of
entries with inverted margins, on Lt. post
elbow in the area of 8 cm x 7 cm x 11.0, no
blackening & Tattooing present over the
wounds. Disbursement is about 2.5 cm,
oozing of blood present from the wounds.

5. Contusion 13 cm x 3.5 cm on
Lt. back in the middle.

Opinion- Injury no.5 is simple,
Injury nos. 1, 2, 3 and 4 kept under
observation and advised for X-ray. Injury
nos. 1, 2 and 5 were caused by blunt object
and injury nos. 3 and 4 were caused by fire
arm. Duration was reported to be fresh."

5. In the X-ray report (Ex.Ka-18) of
Ashfaq Ahmad, following opinion has
been expressed by the Radiologist: -

"No bony abnormality is seen.
One
small
radio-opaque
shadow
of
metallic density in the injuries of abdomen
left side and four similar shadows in the
same side, probably due to pellets. X-ray:
left elbow shows three small radio-opaque
shadow of metallic density, in the region of
1 All. Aftab Ahmad & Ors. Vs. State
701
elbow, probably due to pellets. X-ray left
hip shows multiple small radio-opaque
shadows of metallic density in the region
of hip and toe region. Probably injuries
due to pellets."

6. As per the medical examination
report
(Ex.Ka-14)
of
the
injured
Jamaluddin (informant), following injuries
were found:

"1. Lacerated wound 1.5 cm x
0.3 cm x scalp on Rt-side and Scalp, 5 cm
above Rt. eye brow.

2. Lacerated wound 0.6 cm x 0.3
cm x skin on Lt. eye brow.

3. Lacerated wound 2 cm x 0.8
cm x skin on Lt. fore-arm, on lateral side,
5 cm above wrist joint.

4. Contusion 3 cm x 2 cm on Rt.
hip.

5. Contusion 4 cm x 2 cm on Rt.
posterior shoulder.

Opinion: - All injuries are
simple, caused by blunt object. Duration
fresh"

7. As per the medical examination
report
(Ex.Ka-15)
of
the
injured
Riyazuddin (PW1), following injuries
were found on the body of the injured: -

"1. Lacerated wound 2 cm x 1
cm bone deep on Lt. Side scalp 6 cm above
Lt. ear.

2. Lacerated wound 1.5 cm x 0.3
cm x scalp on Lt. Side ant. Scalp, 8 cm
above Lt. eye brow.

3. Lacerated wound 0.5 cm x 0.5
cm x skin on the root of Lt. middle finger
on posterior side.

4. Abrasion 1/2 cm x 0.2 cm on
Lt. thumb posterior side.

5. Contusion 11 cm x 5 cm on Lt.
thigh lateral side in the middle.

6. Contusion 4 cm x 1.5 cm on
Lt. hip.

7. Contusion 10 cm x 4 cm on Lt.
upper arm on Lat. Side.

Opinion:- injury no.1 was kept
under observation and injury nos. 2 to 7
are simple in nature. All injuries have
been caused by blunt object."

8.

Upon
completion
of
the
investigation, the Investigating Officer
submitted charge-sheet bearing No. 42
dated 15th March, 1980 against all the
accused persons i.e. appellants herein
under Sections 147, 148, 323/149, 307/149
and
302/149
I.P.C.,
upon
which
cognizance was taken by the concerned
Magistrate and thereafter, the case was
committed to the Court of Sessions giving
rise to Sessions Trial No. 144 of 1982. The
trial court vide order dated 25.02.1983
framed charges against all the accused
appellants
under
sections
147,
323/149,307/149
and
302/149.
The
accused Sagir Ahmad (since deceased),
Aftab Ahmad, Chhotey Mian, Adday and
Laeeq Ahmad, who were armed with guns,
were charged under section 148 IPC also.
The record further reveals that the accused
persons were charged separately in the
following manner:-

"i. Accused Afzal Ahmad, Sukha,
Chhutwa @ Shakeel Ahmad and Buller
were also charged with section 323 IPC
simplicitor.

ii. Accused Chhotey Mian, Laeeq
Ahmad and Aftab Ahmad were charged
with section 307 IPC for having fired and
caused injuries to Ashfaq Ahmad with
their guns.

iii. The deceased accused Sagir
Ahmad in addition to the foregoing
charges was also separately charged with
702 INDIAN LAW REPORTS ALLAHABAD SERIES
section 302 IPC simplicitor for having
caused murder of Khairuddin."

9. The prosecution in support of its
case produced two witnesses of facts
namely, P.W.1 Riyazuddin, who is injured
and is brother of the deceased; and P.W.2
Ashfaq Ahmad, who is also injured and is
brother of the deceased. Apart from these
two witnesses of fact, the prosecution
examined P.W.3 Janardan Arora, SubInspector, the second investigating officer
who submitted charge sheet. The record
reflects that the genuineness of injury
reports and post mortem reports were
accepted by the defense under section 294
Cr.P.C.
However,
the
trial
court
summoned
three
persons
as
court
witnesses, namely, C.W.1 Abdul Gafur,
the scribe of the first information report,
who proved the written report as having
been dictated by the first informant
Jamaluddin, C.W.2 Dr. J.N. Bhargava who
conducted post mortem on the cadaver of
deceased and proved the post mortem
report and C.W.3 Om Prakash Saxena, the
Executive Magistrate, Tehsil Bareilly who
recorded statement of injured Ashfaq
Ahmad on the date of the incident at about
07:45 P.M. as a dying declaration. But
since P.W.2 Ashfaq Ahmad survived, it
has been utilized by the trial court as his
previous statement.

10. Apart from the oral testimony,
the
prosecution
also
relied
upon
documentary
evidence,
which
was
exhibited. The police papers regarding
initial investigation by first investigating
officer Sangram Singh were exhibited as
Ext. Ka.-1 to Ext. Ka.-11 at the instance of
the second investigating officer Janardan
Arora as the first investigating officer
Sangram Singh had died. He also proved
that part of the investigation, which was
done by him as also the charge sheet
submitted by him (Ext. Ka-12).

11. In addition to above, the
prosecution
also
relied
upon
some
documentary
evidence
to
prove
the
possession and title of first informant over
the land in dispute. The same are
catalogued herein-below:

"Ext.
Ka-19,
copy
of
the
judgment of the Asst. Collector/Tehsildar,
Bareilly dated 16th March, 1970 directing
the name of Jamaluddin to be mutated
over the land in dispute;

Ext. Ka-20 copy of the extract of
Khatauni
mutating
the
name
of
Jamaluddin over the land in dispute and
expunging the name of Smt. Raqiban;

Ext.Ka-21 copy of the judgment
of the Board of Revenue dated 28th
February, 1981 rejecting the revision of
Smt. Raqiban; and

Ext. Ka-22 copy of the search
application, which shows that Jamaluddin
filed an appeal against the order dated
27th January, 1984 passed by A.C.O.
Fatehganj, wherein stay order has been
passed."

12. The accused persons in their
statements recorded under section 313
Cr.P.C. denied their involvement in the
crime and stated that they have been
falsely implicated due to old enmity
between the parties regarding land dispute.
They denied that the first informant
Jamaluddin,
since
deceased,
was
in
possession of the land in dispute and that
they went to take forcible possession over
the land in dispute on 16.12.1979. The
accused persons further stated that they
were in possession over the land in dispute
since much before the incident.
1 All. Aftab Ahmad & Ors. Vs. State
703

13. The accused Imtiaz Ahmad @
Addey in his statement under Section 313
Cr.P.C. further stated that the land in
dispute was in their possession and on the
date of the alleged incident, when he and
Afsar @ Chhotey Mian were ploughing
their
field,
Jamaluddin,
Khairuddin,
Ashfaq Ahmad, Akhlaq Ahmad and
Riyazuddin armed with country made
pistol and lathi came on the spot and
assaulted
them.
His
brother
Afsar
defended himself by using lathi and they
lodged the report of the incident and the
trial is pending. The accused persons also
relied on documents which they filed as
Ext. Kha.-1 to Exhibit Kha-21 and
examined two defense witnesses i.e.
D.W.1 (Dr. Vinod Sahgal), who had
examined the accused Imtiaz Ahmad @
Addey and Afsar Ahmad @ Chhotey Mian
for their injuries, and D.W. 2 (Damodar
Sahai), the then Peshkar of Chief Judicial
Magistrate, Bareilly, who proved the
alleged dying declaration i.e. previous
statement of Ashfaq Ahmad recorded by
Executive Magistrate.

14. The accused also filed the certified
copy of their first information report (Ext.
Kha-7) to show that Jamaluddin, Riyazuddin,
Khairuddin, Ashfaq came to the disputed
field armed with country made pistol and
lathis on 16.12.1979 at about 2.00 P.M. to
prevent the informant side (accused herein)
from ploughing their agricultural field by
tractor. It is alleged that these persons fired
with their pistol, with intention of causing
death, as a result, Imtiaz, who was ploughing
the field with his tractor, sustained injuries. It
was stated in the first information report (Ext.
Kha-7) that they (accused persons of case in
hand) took shelter behind the tractor and ran
towards the village but Ashfaq (P.W.-2) fired
from his pistol, as a consequence whereof, a
pellet hit Imtiaz's leg. Another brother of
accused Imtiaz, namely, Afsar @ Chhotey
Mian, was also beaten with lathis. That first
information report (Ext. Kha.-7) was lodged
by Imtiaz on 16.12.1979 at 4.30 P.M., in
which the time of occurrence was alleged to
be 02.00 P.M., at the same place of
occurrence, where the incident of the case in
hand took place. The accused also relied upon
the injury reports of Afsar Ahmad and Imtiaz
Ahmad, which were marked as Ext. Kha-1
and Ext. Kha-2. These injury reports were
proved by Dr. Vinod Sehgal (D.W.1),
Medical Officer in District Jail, Bareilly, with
the help of the register maintained in District
Jail, by stating that in his register, dated
18.12.1979, at serial no. 1312, Afsar Ahmad
S/o Sagir Ahmad accused was examined by
him at 04:05 P.M. and one simple injury on
his person was found to be caused by some
blunt object. At the time of medical
examination, the injury of Afsar Ahmad was
about 2 and 1⁄2 days old. He placed its copy as
Ext. Kha-8. Besides this, Dr. Vinod Sehgal
DW-2 stated that at serial no. 1313, the
injuries of Imtiaz Ahmad S/o Sagir Ahmad
are also mentioned showing four injuries on
his person, out of which, three were simple
and regarding injury no.4, X-Ray was
advised.

15. In addition to above, the accused
also filed certified copy of the injury report
(Ex. Kha-8) obtained from the cross-case,
which is the injury report relating to accused
Afsar Ahmad @ Chhotey Mian S/o Sagir
Ahmad, who was examined by Dr. G.S.
Gangapangi on 16.12.79 at 10:10 P.M. at
P.H.C., Bhojipura. The injuries noticed therein
were as follows:-

"1. Lacerated wound 6cm x 0.5
cm scalp over 13 cm above Rt. ear
obliquely placed.

2. Swelling over Rt., wrist of
outer medical surface.
704 INDIAN LAW REPORTS ALLAHABAD SERIES

No signs of dislocation and
fracture.

Nature- simple, caused blunt
object

Duration half day old."

16. The same Medical Officer also
examined the injuries of Imtiaz Ahmad on
the same date at 10.35 P.M., which was
noticed in Ext. Kha -9 as follows:-

1. Abrasion 11 x 0.5 cm over the
dorsal surface of Rt. ring finger extending
from base of nail obliquely placed.

2. Abrasion 0.5cm x 0.6 cm over
the dorsal surface of Rt. middle finger
extending from base of nail.

3. Abrasion 0.5cm x 0.2 cm over
dorsal surface Rt. thumb extending from
basis of Rt. thumb.

4. Rounded lacerated wound 0.5
cm x 0.5 cm muscle deep over the
posterior part of Lt. thigh 13.5 cm above
knee joint.

Nature: Injuries No. 1, 2 and 3
simple and injury no.4 under observation
advised X-Ray, Lt. thigh for presence of
any foreign body from District Hospital,
Bareilly.

Cause: Blunt object

Duration:
About
half
day.

Sd/- 15.12.79"

17. Lastly, the defense relied upon
the alleged dying declaration (Ext. Kha-3)
purporting to have been made by (P.W.2)
Ashfaq Ahmad at District Hospital,
Bareilly before the Executive Magistrate
Sri O.P. Saxena C.W. 3, who was
examined as court witness under section
311 Cr.P.C. He claimed to have recorded
Ext. Kha.3 at 7.45 P.M. on 16.12.1979.
The defense relied/utilized the same as
previous statement of PW2 to demonstrate
contradictions in the prosecution case with
the case taken in the first information
report (Ext. Ka- 1) as well as the
prosecution evidence led during the course
of trial. This document was produced by
one Damodar Sahai (D.W.-2), reader to
the Chief Judicial Magistrate, Bareilly,
who stated that it (Ext. Kha -3) was
received in the court of Chief Judicial
Magistrate, Bareilly on 17.12.79 along
with the copy of G.D. No. 41, dated
16.12.1979, at 6.30 P.M. (Ext. Kha-5)
from
police
station
Kotwali.
The
intimation slip (Ex. Kha-4) of the Medical
Officer at Civil Hospital, Bareilly, was
also relied by the defense in order to show
that Ashfaq Ahmad (P.W.-2) was mentally
fit for recording his declaration. Sri Om
Prakash Saxena, Tehsildar (C.W.-3) stated
that Sri P.L. Verma, SDM, Bareilly
ordered
him
to
record
the
dying
declaration (Ext. Kha- 3).

18. The accused Laeeq Ahmad raised
a plea of alibi by filing mark-sheet and the
scheme of his B.A.M.S. examination held
by
the
Kanpur
University
between
December, 1979 and January, 1980. The
mark-sheet (Ext. Kha-17) disclosed that
accused Laeeq Ahmad was permitted to
appear again in B.A.M.S. examination as a
supplementary candidate.

19. In order to show their possession
over the land in dispute, the defense relied
on following documents:-

i. Ext, Kha.-6, which is the
certified extract of Khasra disclosing that
Sagir Mohd. was recorded in cultivatory
possession
of
Khasra
nos.
415,466,467,493,495 to 499 and 555 to
561 in 1386 fasli

ii. Ext. Kha- 1, which is an
extract of khatauni from 1383 to 1388 fasli
disclosing that name of Jamaluddin
1 All. Aftab Ahmad & Ors. Vs. State
705
(deceased-informant) along with others
was recorded over the said plots and in
place of names of Mohd. Ismail and Smt.
Raqiban, the name of Sagir Ahmad
(accused) had also been mutated on
18.4.78.

iii. Ext. Kha- 11 is a certified
copy of an order of Naib Tehsildar dated
14.4.79, whereby he directed that the
name of Smt. Raqiban be struck off and
that of accused Sagir Ahmad be mutated.

20. The accused after closing of
evidence of court witnesses (C.W.-1,
C.W.-2 and C.W.-3) filed certified extracts
of khasra for the years 1386 fasli to 1388
fasli, which was marked as Ext. Kha-16
indicating therein that Sagir Ahmad
deceased-accused was also recorded as cotenure holder of certain plots with
deceased Jamal i.e. Jamaluddin.

21. The trial court after considering
the evidence on record came to the
conclusion that the prosecution witnesses
are wholly reliable; the accused party was
aggressor; and the injuries of accused
persons are superficial in nature for which
no explanation was required. The trial
court found accused persons guilty for the
charges framed against them, as they
constituted an unlawful assembly and were
liable as members thereof.

22. The accused Sagir Ahmad died
during trial, whereas appellant no.3 Imtiaz
Ahmad @ Adday S/o Sagir Ahmad,
appellant no.5 Afzal Ahmad S/o Sagir
Ahmad; appellant no.6 Chhotey Mian @
Afsar Ahmad S/o Sagir Ahmad; and
appellant no.8 Bullar @ Abdul Sattar S/o
Nazir Ahmad, died during the pendency of
the appeal and their appeal stood abated
vide separate orders dated 21.01.2019 and
08.05.2019. Thus, this appeal survives qua
appellant no.1 (Aftab); appellant no.2
(Laeeq Ahamd); appellant no.4 (Sukkha);
and appellant no.7 (Chhuttwa).

23. Learned counsel for the surviving
accused-appellants
has
strenuously
contended that they have been falsely
implicated in the crime in question and the
prosecution version is not proved beyond
reasonable doubt and in this regard,
following contentions have been put
forth:-

(a)
The
prosecution
has
miserably failed to prove its case beyond
reasonable doubt, inasmuch as it has failed
to prove that the incident occurred in the
manner alleged.

(b) The prosecution witnesses
are partisan/inimical to the accused and the
independent eye-witnesses named in the
FIR have not been produced and have
been purposely withheld.

(c) The medical evidence is in
conflict with alleged eye witness account
and it materially affects the reliability of
witnesses.

(d) Material improvements have
been made by the prosecution witnesses at
every stage of the case, which make them
wholly unreliable.

(e) The injuries suffered by the
accused persons have not been explained
by the prosecution and the manner, origin
and motive of the quarrel has been
suppressed by the prosecution.

(f) The trial court did not
appreciate the evidence in correct legal
perspective and misread the evidence.

(g) In the alternative, it is
submitted that in the peculiar facts and
circumstances of the case, the prosecution
had miserably failed to prove that
formation of an unlawful assembly with a
common object to commit murder and as
706 INDIAN LAW REPORTS ALLAHABAD SERIES
such, the accused appellants can therefore
be held liable only for their individual act,
if at all it is proved beyond doubt.

24. On the other hand, the learned
Additional Govt. Advocate has supported
the prosecution case and has submitted
that the time and place of the incident is
admitted to the defense and that the
defense
has
impliedly
admitted
the
presence of accused persons on the spot by
setting up their own case that they were
attacked by the informant's party while
they were ploughing their field. The
prosecution was not obliged to explain the
injuries of the accused persons, as they
were superficial in nature. Moreover, the
accused persons constituted an unlawful
assembly, inasmuch as they were more
than five in number and were armed with
weapons of assault including firearms,
which were used in causing injuries to the
deceased, as well as other persons,
therefore, it cannot be said that the
common object of the unlawful assembly
was not to commit murder. The learned
A.G.A. submitted that the prosecution has
fully established its case beyond the pale
of doubt and the trial court's findings are
well discussed, which calls for no
interference.

25. In the light of the above noted
rival submissions, this court proceeds to
examine the evidence available on record.
P.W.1 (Riyazuddin) is an injured witness.
He has stated about the close relationship
of the accused persons inter se. He has
stated about informant party's possession
and title over the land in connection with
which the incident occurred, though he
admitted about litigation pending in court.
Regarding incident, he has stated that on
16.12.1979, he along with his elder brother
Khairuddin,
younger
brother
Ashfaq
Ahmad and father Jamaluddin were
ploughing a field of Sumere Kurmi which
they had taken on lease (batai) and which
was located at a distance of just about 100
to 150 paces from the field in dispute. At
about 01:30 P.M., all the named accused
persons came with tractor to plough the
disputed
land.
While
accused
Sagir
Ahmad, Aftab Ahmad, Chhotey Mian,
Laeeq Ahmad and Addey had guns in their
hands, the other named accused persons
had lathis. Upon seeing this Khairuddin
went to that field and stood in front of the
tractor and asked them to stop ploughing
the field. P.W.1 (Riyazuddin), his father
Jamaluddin and younger brother Ashfaq
also reached there. At this juncture,
accused Addey, who was driving the
tractor, asked Khairuddin to move aside,
otherwise he would be a victim but
Khairuddin refused to budge, whereupon
accused Sagir Ahmad by stating that
Khairuddin is posing himself to be a
wrestler and will not remove himself, fired
upon
Khairuddin,
who
died
instantaneously, as a result of the gun shot.
Upon which, P.W.1 (Riyazuddin) and his
brother
Ashfaq
Ahmad
and
father
Jamaluddin came towards Khairuddin.
Seeing
that,
accused
Aftab Ahmad,
Chhotey Mian and Laeeq Ahmad, by their
respective
guns,
fired
upon
Ashfaq
Ahmad, who fell on the spot after
receiving
gunshot
injury.
Thereafter,
P.W.1
(Riyazuddin)
and
his
father
Jamaluddin were assaulted by accused
Afzal Ahmad, Chhutwa, Bullar and
Sukhha with lathis causing injuries to
them. Thereafter, co-villagers Rafeeq
Ahmad, Habib Ahmad, Abdul Karim and
others arrived on the spot and rebuked the
accused persons, who ran away with their
tractor. He further stated that his father
(Jamaluddin) got the first information
report of this case written at the house of
1 All. Aftab Ahmad & Ors. Vs. State
707
Abdul Gafur Master and sent it to the
police station through Mohd. Ayub @
Doctor for lodging the same. Thereafter,
P.W.1, his father Jamaluddin and brother
Ashfaq Ahmad came to Sadar Hospital,
Bareilly where they were medically
examined. Ashfaq Ahmad remained in the
hospital as indoor patient for about 20-21
days.

26. In the cross examination, P.W.1
(Riyazuddin) admitted that prior to this
incident, his father filed two criminal
complaints against the accused persons, one
against accused Sagir Ahmad, Afzal Ahmad,
Adday, Chhotey Mian, Bhura and Khalifa
for maarpeet and another criminal complaint
against accused persons Sagir Ahmad, Afzal
Ahmad and Adday for causing mischief by
dismantling the mendh (boundary marks).
He has further admitted in the cross
examination that the name of Smt. Rafikan
was mutated on the land in dispute about six
years back and thereafter the name of Sagir
Ahmad was mutated in place of Rafikan and
since 16.12.1979, the name of Sagir Ahmad
was continuing in revenue records for the
land in dispute. He has denied possession of
Sagir Ahmad over this land, however, he has
admitted
that
during
consolidation
operations, Sagir Ahmad won the case from
subordinate consolidation court, resulting in
carvation of Chak in favour of Sagir Ahamd,
though a revision has been filed by P.W.-1.
He has further stated in cross examination
that he was ploughing the field of Sumere
Kurmi which his brother Khairuddin had
taken on lease (batai). He has stated that his
father Jamaluddin wrongly mentioned in the
first information report that he (Jamaluddin)
and his sons Khairuddin, Ashfaq Ahmad and
Riyazuddin were ploughing the land in
dispute and he cannot say as to how this
mistake occurred in the first information
report. When his statement was taken on
next
day
by
police
Inspector,
first
information report was read out to him but
he did not inform the police Inspector that
the above mentioned facts were wrongly
written in the first information report. He
was also cross examined on the manner of
assault, according to which he had initially
stated that at the time of actual shooting
deceased Khairuddin was standing in front
of tractor almost touching it and other
accused persons were standing 1-2 paces
behind the tractor, however subsequently he
modified his statement to the effect that
other accused persons were standing 4-5
paces behind the tractor and they fired from
that position. He reiterated that the deceased
Khairuddin had received one gunshot injury
and died instantaneously. The accused
persons were armed with gun and lathi only
and no one was having Ballam. P.W.1 and
his family members neither had weapon nor
they caused injury to any of the accused
persons and that he did not see any injury on
the person of any accused and he cannot say
as to how the accused persons received
injuries. He however denied possession of
accused person on the land in dispute and
also denied the suggestion that he and his
family members went to the place of
incident armed with lathi and country made
pistol. He further stated that at the time of
assault no other person was there. According
to the record, this witness was recalled on
02.05.1984, when he proved the written
report by stating that on 16.12.1979, his
father Jamaluddin dictated the report in his
presence to Abdul Gafur and then Abdul
Gafur read out his report to his father
(Jamaluddin) and thereafter his father put his
thumb impression on the written report.

27. P.W.2 (Ashfaq Ahmad) is also an
injured eye witness. He is son of first
informant Jamaluddin and is brother of
P.W.1 Riyazuddin. He allegedly received
708 INDIAN LAW REPORTS ALLAHABAD SERIES
gunshot injuries and other blunt weapon
injuries in the aforesaid incident. His
statement on oath was recorded on the date
of the incident itself at about 07:45 P.M.
by
the
Executive
Magistrate
after
obtaining the certificate from the doctor
that the injured is in a fit state to give
statement and this statement is on oath.
The aforesaid statement which is now to
be treated as a previous statement reads as
under:-

"अशफाकvgen iq= teky mnnhu
vk;q 25 वर्ष fuoklh& /kkS: Vkat] Fkkuk eksthiqjk]
ftyk cjsyh us सशपथ c;ku fd;k fd vkt djhc
nksigj 1-30] 2 cts vius [ksr ij dke dj jgk Fkk
fQj ykyk th lxhj vgen iq= gkth vCnqy jghe]
vQtky iq= lxhj vgen NksVs fe;kW iq= lxhj
vgen] vM~Msiqj lxhj vgen] igyoku cqYgM+ iq=
uthj vgen] शकील vgen mQZ ?kqVok iq= gkth
[kyhy feLVj vk;s fQj ,d vkQrkc iq= bdcky
crk;k vk;sA bu lc esa ls vkQrkc] vQtky vkSj
cqgYM+ igyoku ds ikl nksukyh cUnwd Fkh ,oa vkSj
Hkh FkhA vQtky us xksyh pykbZ tks esjs dqguh vkSj
dks[k ij NjsZ yxsA xksyh vkSj Hkh pyh ysfdu eSa
बेहोश gks x;k eq>s ugh irk fd fdl fdl us
pykbZA 3 vknfe;ksa ij Hkkys vkSj ykBh FkhA [ksr ij
esjs vykok esjs 2 HkkbZ vkSj ,d cki Fks HkkbZ;ksa dk
uke [kSj mnnhu vkSj jktmnnhu gSA bu yksxks ds Hkh
NjsZ yxs gSA igys बेहोश gks x;k Fkk tc होश
vk;k rc Hkkxk Hkkxrs le; nh[kk dh HkkbZ ogh iM+s
gq;s FksA gekjk bu ls eqdnek py jgk FkkA ge uk;c
lkgc ds ;gkW ls thr x;s] vkSj fQj dysDVj lkgc
ds ;gkW ls Hkh thr x;s blh jaftश dh otg ls
bUgksus esjs o esjs ?kj okyks ds xksyh ekjh gSA

c;ku lqudj rLnhd fd;kA

O.P. Saxena

Executive Magistrate

Certified that above mentioned
pt. named Asfaq Ahmad

is in full sense to record his
dying declaration

SD.-

10-5-86

28. During his examination in Court,
P.W.2 (Ashfaq Ahmad) has corroborated
the statement of P.W.1 Riyazuddin in each
and every material aspect of the matter
including manner of assault. Regarding
manner of assault, he has corroborated
P.W.1 Riyazuddin and has stated that
when he and his family members reached
the land in dispute, about 2-3 Biswa of the
land had been ploughed by the accused
persons with the help of the tractor. He
stated that Khairuddin stood in front of the
tractor about 6-7 paces away and accused
persons were about 1-2 paces behind the
tractor. He stated that Khairuddin received
only one gunshot injury and died on
account of that injury and that no other
injury was received by him.

29. Upon being confronted with his
previous statement, he stated that he does
not remember as to whether he had given
any statement to Magistrate in the hospital
or to the police inspector. The statement
recorded by the Magistrate was put to him
to contradict his statement in Court but he
expressed his inability to explain the
contradictions and stated that he could not
say as to how those contradictions
occurred in his statement. He stated that
first information report was dictated by his
father in his presence at about 02:30 P.M.
He denied the suggestion that informant
side had caused injuries to accused
persons. He stated that no accused had
received any injuries in front of him.

30. It is relevant to mention here that
the statement of P.W.2, which was
recorded on 16.12.1979 itself, at about
07:45 P.M., by the Executive Magistrate in
the shape of dying declaration, on oath,
1 All. Aftab Ahmad & Ors. Vs. State
709
was withheld by the prosecution. From the
judgment of the learned trial court, it
transpires that the stand of the prosecution
before the trial court was that this
statement is fabricated and was never
given by the witness P.W.2. But, this
statement was relied by the defense to
question the reliability and genuineness of
ocular
testimony
of
P.W.2
(Ashfaq
Ahmad) by showing various contradictions
and improvements therein. The trial court
summoned and examined the Executive
Magistrate Sri Om Prakash Saxena as
C.W.3 to prove the aforesaid statement of
P.W.2 Ashfaq Ahmad and thus, it was
exhibited as Ext.-C1. The defense also
examined D.W.2 (Damodar Sahai), the
then Peshkar of Court of learned C.J.M.,
Bareilly where the aforesaid statement was
sent in a sealed cover.

31. P.W.3 Sub-Inspector Janardan
Arora, the then Station Officer of police
station Bhojipura has been examined by
the prosecution regarding investigation
part of the case. He was second
Investigating Officer and had submitted
the charge sheet. The first Investigating
Officer Sub Inspector Sangram Singh had
died and thereafter, the investigation was
handed over to P.W.3 Janardan Arora. He
has proved the police papers including
various recovery memos prepared by first
Investigating Officer by stating that he was
acquainted with his signature and hand
writing. He has proved Ext. Ka 2 to Ext.
Ka 13. Apart from his formal evidence, he
has stated in cross examination that he had
investigated the issue regarding alibi of
Sagir Ahmad and had interrogated various
persons in this regard. However, after
obtaining legal advice, he submitted
charge sheet against Sagir Ahmad also. He
has stated that in the site plan, about one
fourth of total area of the land in dispute
was found to be ploughed. He was
confronted with the statement of PW1
Riyazuddin and PW2 Ashfaq Ahmad
recorded under section 161 of Cr.P.C.,
upon which he stated that in their
statement, it was mentioned that "Taeed
FIR karte hue bataya" and in the statement
of Ashfaq Ahmad recorded under section
161 Cr.P.C. that "Maine ek bayan
Magistrate Sahab ko bhi aspatal mein
jakhmi halat mein diya".

32. The trial court also summoned
and examined the scribe of the first
information report, namely, Abdul Gafur
as C.W.1, who stated, in his examinationin-chief, that Jamaluddin had dictated the
first information report to him and he
wrote exactly the same as was dictated by
Jamaluddin. After writing the written
report, he read it over to Jamaluddin and
thereafter Jamaluddin put his thumb
impression on it. In his cross examination,
he
has
stated
that
first
informant
Jamaluddin and Ashfaq (injured witness)
had come for writing the first information
report and he did not see Riyazuddin,
Khairuddin and Akhlaq as they did not
come. He has also stated that neither he
went to the police station nor police
approached him thereafter.

33. The trial court further examined
Dr. J.N. Bhargava, C.W.2, who has proved
the post mortem report and has stated
about the ante mortem injuries mentioned
in the post mortem report. He has stated in
his cross examination done by State
Counsel that injury nos. 2,3 & 5 are not
possible from fire arm and they could be
caused by collusion with some heavy
object, such as lathi or butt of a gun. With
regard to fire arm injury i.e. injury no.4, he
has stated that this injury had blackening
and could have been caused by gun shot
710 INDIAN LAW REPORTS ALLAHABAD SERIES
fire from within a distance of 4 feet, while
injury no.1 could have been caused from a
much greater distance. He also could not
tell whether injury no.4 was caused by fire
from country-made pistol or gun, which
according to him, could be told by
Ballistic Expert. He has denied the
suggestion that injury no.5 may be
possible by wheel of some vehicle.

34. The trial court further examined
C.W.3 Om Prakash Saxena, Executive
Magistrate,
who
had
recorded
the
statement of injured Ashfaq Ahmad as
dying declaration.