# Ahrar Ahmad v. State of U.P

- **Citation:** (2024) 8 ILRA 663
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-01
- **Case number:** Criminal Appeal No. 4574 of 2014
- **Bench:** Arvind Singh Sangwan, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahrar-ahmad-v-state-of-u-p-52427
- **Pages:** 15

## Headnote

A. Criminal Law - Indian Penal Code, 1860
-Sections 30 & 34- Appellants, Nadeem
Ahmad & Ahrar Ahmad, were charged with
the murder of Asif -Prosecution was able
to prove the guilt of appellant, Nadeem
Ahmad - Nadeem Ahmad was named in the
FIR.
Eyewitnesses
(PW-1
and
PW-2)
testified that Nadeem, using a countrymade pistol, fired at Asif, causing his death.
Both witnesses confirmed that Nadeem,
tried to flee the scene, firing in the air to
escape. Motive was attributed to Nadeem,
due to electoral rivalry with Asif. Licensed
revolver
belonging
to
Nadeem
was
recovered by the police, and ballistic reports
confirmed that the weapon was used in the
crime. Doctor who conducted the postmortem,
confirmed
that
the
injuries
sustained by the deceased were consistent
with the firearm used by Nadeem. No
evidence suggested that two different
firearms were involved in the murder.
Appellate Court upheld the judgment of
conviction and order of sentence passed by
the trial court for accused Nadeem Ahmad.
(Para 33)

B. Criminal Appeal - Murder - Indian Penal
Code, S. 302, S. 34- Acquittal on Benefit of
664 INDIAN LAW REPORTS ALLAHABAD SERIES
Doubt - Appellants, Nadeem Ahmad &
Ahrar Ahmad, were charged with the
murder of Asif -Prosecution could not
prove the guilt of Ahrar Ahmad. No
firearm was recovered from Ahrar. No
specific motive was attributed towards
him.Independent witness stated that
Ahrar was present at Jama Masjid of
village- Akbarpur at the time of incident.
Appellate Court set aside the judgment of
conviction and order of sentence for
appellant- Ahrar Ahmad and he was
acquitted of the charge. (Para 34)

Appeal partly Allowed. (E-5)

## Text

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8 All. Ahrar Ahmad Vs. State of U.P.
663
on the basis of a settlement reached
between the parties, when the
offences are capable of having an
impact
not
merely
on
the
complainant and the accused but
also on others."

17. From the decisions noticed
above, the law as it stands is that although
this Court can invoke its jurisdiction under
Section
482
Cr.P.C.
even
in
non-
compoundable offence and can quash the
proceedings on the basis of settlement
arrived at between the parties even in the
cases of non-compoundable offences but
while exercising its jurisdiction this Court
must consider the fact that whether the
proceedings relates to any serious and
heinous offences and whether the crime in
question has impact over the society.

18. Considering the nature of
offences, nature of dispute, facts and
circumstances of the case, I am of the
opinion that the case against the applicants,
which is pending in Court of Ist Additional
Sessions Judge, Baghpat is to be quashed in
the light of the compromise entered
between the parties and verified by the
court
concerned
vide
order
dated
11.6.2024.

19. Therefore, the applications
under Section 482 Cr.P.C. are allowed. The
proceedings of Criminal Case pending
before the Judicial Magistrate, Baghpat
against the applicants as stated above is
hereby quashed on the basis of compromise
entered between the parties.
----------
(2024) 8 ILRA 663
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2024

BEFORE
THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 4574 of 2014
With
Criminal Appeal No. 4897 of 2014

Ahrar Ahmad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajrshi Gupta, Sri Vinod Singh, Sri Mohd.
Sahiba Alam Khan, Sri Pushpendra Singh, Sri
Dilip Kumar (Sr. Advocate)

Counsel for the Respondent:
Govt. Advocate, Sri Brijesh Sahai, Sri Ganesh
Shankar Dubey, Sri Pratik J. Nagar, Sri Rajul
Bhargva, Sri Sikander B. Kochar, Sudhir Kumar
Agarwal

A. Criminal Law - Indian Penal Code, 1860
-Sections 30 & 34- Appellants, Nadeem
Ahmad & Ahrar Ahmad, were charged with
the murder of Asif -Prosecution was able
to prove the guilt of appellant, Nadeem
Ahmad - Nadeem Ahmad was named in the
FIR.
Eyewitnesses
(PW-1
and
PW-2)
testified that Nadeem, using a countrymade pistol, fired at Asif, causing his death.
Both witnesses confirmed that Nadeem,
tried to flee the scene, firing in the air to
escape. Motive was attributed to Nadeem,
due to electoral rivalry with Asif. Licensed
revolver
belonging
to
Nadeem
was
recovered by the police, and ballistic reports
confirmed that the weapon was used in the
crime. Doctor who conducted the postmortem,
confirmed
that
the
injuries
sustained by the deceased were consistent
with the firearm used by Nadeem. No
evidence suggested that two different
firearms were involved in the murder.
Appellate Court upheld the judgment of
conviction and order of sentence passed by
the trial court for accused Nadeem Ahmad.
(Para 33)

B. Criminal Appeal - Murder - Indian Penal
Code, S. 302, S. 34- Acquittal on Benefit of
664 INDIAN LAW REPORTS ALLAHABAD SERIES
Doubt - Appellants, Nadeem Ahmad &
Ahrar Ahmad, were charged with the
murder of Asif -Prosecution could not
prove the guilt of Ahrar Ahmad. No
firearm was recovered from Ahrar. No
specific motive was attributed towards
him.Independent witness stated that
Ahrar was present at Jama Masjid of
village- Akbarpur at the time of incident.
Appellate Court set aside the judgment of
conviction and order of sentence for
appellant- Ahrar Ahmad and he was
acquitted of the charge. (Para 34)

Appeal partly Allowed. (E-5)

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. This appeal is preferred against
the
judgment
of
conviction
dated
12.11.2014, passed by Additional Sessions
Judge, Court No. 3, Bulandshahar in S.T.
No. 104 of 2013 (State Vs. Nadeem &
another) arising out of Case Crime No. 688
of 2012, Police Station- Kotwali Nagar,
District- Bulandshahar vide which the
appellants Nadeem and Ahrar were held
guilty of offence punishable under Section
302 read with Section 34 of I.P.C. as well
as the order of sentence dated 15.11.2014
vide which both the accused were awarded
life sentence along with fine of Rs. 40,000/-
each. In case of non-payment of fine,
further they were directed to undergo
punishment of one year. The two-third
amount of the fine was directed to be paid
the legal heirs of Asif.

It is worth noticing that appellant-
Ahrar Ahmad filed S.L.P. (Criminal) No.
21671 of 2022 praying for bail. The
Supreme Court, however, vide order dated
14.12.2022, directed the High Court to
finally decide and dispose of the appeal
within a period of nine months. Therefore,
this appeal is taken in the category of
Supreme Court expedited cases.

2. Heard Mr. Dilip Kumar, learned
Senior Counsel assisted by Mr. Vinod
Singh, Advocate, Mr. Mohd Sahibe Alam
Khan and Mr. Pushpendra Singh, learned
counsel for the appellant, Mr. Sudhir
Kumar Agarwal, learned counsel for the
informant and learned AGA for the State.

3. The Trial Court's record is
received and paper books are ready. With
the assistance of learned counsel for the
parties, the entire evidence is re-scrutinized
and re-appreciated.

4. Brief facts of the case as per the
FIR read as under:

"श्रीमान
जी
आज
तदनाांक
14.10.2012 को समय करीब 5बजे शाम मैं
आतबद व मेरा छोटा भाई आतसफ पुत्र अिाऊरहमान
अहमद तनवासी अकबरपुर अपने बहनोई अबसार
अहमद पुत्र अल्िाफ अहमद तनवासी मऊखेडा के यहाां
से दावि खाकर अ (का०फटा) व अकबरपुर वापस आ
रहे थे मैं व मेरा बहनोई अबसार एक मोटर साइतकल पर
थे िथा मेरा भाई आतसफ अपनी अलग मोटर साईतकल
पर मेरे चाचा मौ० ऊमर पुत्र मुतस्लम के साथ हमारे
अाागे आगे थे जब हम लोग भूड के पार बनी तबसा
कोलोनी में आतसफ तनवासी अकबरपुर की मोबाइल की
दूकान से 10 कदम पहले पहुांचे िो वहाां मेरे ही गाांव के
नदीम व अहरार व दो अन्द्य व्यतक्त खडे तमले तक
एकदम इन्द्होने मेरे भाई आतसफ को रोक तलया और
उसके साथ गाली गलौच व मारपीट करने लगे मैंने िुरन्द्ि
अपने बहनोई अबसार की मोटर साइतकल रूकवाई िथा
मैंने व बहनोई अबसार ने िथा मेरे चाचा मौ० ऊमर ने
उनसे कहा सुनी की ओर मारपीट का कारर् पूछा िो मेरे
व अन्द्य गवाहो के सामने ही मेरे गाांव के नदीम व
अहरार पुत्रगर् हुसैन खाां िथा अन्द्य दो व्यतक्तयों ने
अपने अपने हाथों में तलए हतथयारों से मेरे भाई को जान
से मारने की तनयि से गोतलयाां चला दी जो मेरे भाई को
लगी मैंने अन्द्य गवाहों की मदद से मुलतजमान को
पकडना चाहा िो हवाई फायर करिे हुये भाग गये हाथ
8 All. Ahrar Ahmad Vs. State of U.P.
665
नहीं आये मेरा भाई वही लह लुहान होकर तगर पडा मैंने
अपने आपको सभालिे हुये गाांव के िनवीर को फोन
करवाकर गाडी मगाई और अपने भाई को गवाहो व
अन्द्य लोगो की मदद से सरकारी अस्पिाल बु०शहर में
लेकर आया जहाां डाक्टरों ने मेरे भाई को मृि घोतर्ि कर
तदया मेरा भाई आतसफ मुलतजम नदीम के दादे मुम्िाज
के सामने प्रधानी की चुनाव ल़डा था िभी से ये लोग
उससे रांतजश मानिे थे और उसे मारने की तफराक में थे
आज मौका तमल गया िो इन्द्होने मेरे भाई की हत्या कर
दी है मेरे भाई की लाश सरकारी अस्पिाल में रखी है
ररपोटष को आया ह ां ररपोटष तलखकर कानूनी कारावाई की
जाय प्राथी आतबद पुत्र अिाऊरहमान गाांव अकबरपुर
थाना कोिवाली देहाि तजला- बु०शहर लेखक अबसार
अहमद एस०ओ० अल्िाफ अहमद गाांव मऊखेडा थाना
कोिवाली नगर बु०शहर एम 9927523132
नोट- मैं सी/सी प्रमातर्ि करिा ह ां तक
िहरीर की नकल तचक पुस्ि पर शब्द वा शब्द अांतकि
है मूल िहरीर सांलग्न मूल है।
का० 821 भूपेन्द्र तसांह
थाना- कोिवाली नगर
बुलन्द्दशहर
तदनाांक 14.10.12"

5. The police prepared the
Panchayatnama and thereafter sent the dead
body
for
post-mortem
examination.
Thereafter,
the
police
conducted
the
investigation and effected the recovery of
blood stained earth vide recovery memo
and further recovered the licensed 32 bore
revolver no. F.G. 34117 on the pointing out
of accused- Nadeem from his house along
with the three cartridges inside the chamber
of revolver and five live cartridges in the
holster were recovered. The license which
was in the name of accused- Nadeem
Ahmad was also taken in possession by the
police vide recovery memo.

6. The bullet recovered from the
spot along with the revolver and live
cartridges were sent to F.S.L. for ballistic
examination. The police, on completion of
investigation, submitted the final report
before the court which was submitted to the
court of Sessions. The Sessions Judge,
Bulandshahar on 18.02.2023 framed the
charge under Section 302 read with Section
34 I.P.C. against the accused person.

7. The accused did not plead guilty
and claimed trial.

8. In prosecution evidence, PW-1-
Aabid Hussain- informant stated on the line
of information given to the police in the
FIR. This witness stated that on 14.10.2012
at about 5:00 PM, he along with his
younger brother- Asif, paternal uncle-
Mohd. Umar and brother-in-law- Afsar
were coming back on the motorcycles after
having food in the house of Afsar, situated
at Maukheda. One motorcycle was driven
by Asif and Mohd. Umar was sitting on the
pillion seat. Second motorcycle was driven
by informant and his brother-in-law- Afsar
was the pillion rider. Asif was driving the
motorcycle ahead of PW-1. When they
reached near the shop of one another Asif-
a shopkeeper, Nadeem, Ahrar and two other
persons stopped his brother- Asif and
started abusing him and gave him beatings.
PW-1 stopped his motorcycle and asked the
assailants why they were beating and
abusing his brother. In the meantime,
accused- Nadeem and Ahrar took out their
firearms and fired on Asif. PW-1 along
with Afsar, Mohd. Umar tried to catch hold
of Nadeem and Ahrar but they ran away
towards village Bhud while firing in air and
threatening to kill them. His brother fell
down on the corner of southern side of the
road. By making a phone call to one
Tanveer, he arranged the vehicle and took
his brother to Govt. Hospital, Bulandshahar
where the doctor declared him brought
dead.
This
witness
stated
that
the
grandfather of the accused namely Mumtaz
had contested the election of Village
666 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradhan against his brother deceased-Asif
and since then the accused were having
enmity with him.This witness proved the
complaint given to the police as Ex.K1. In
cross-examination, this witness stated that
he is less educated and can only sign. He
further stated that his eye sight is poor and
he cannot read without glasses, however, he
can see from distance place. He further
stated that his mobile no. is 9927523132
and at the time of incident, he was carrying
this
mobile. This
witness
denied
a
suggestion that his brother Asif and
accused Nadeem were good friends and
used to stay together for 12 to 14 hours in a
day. He further stated that his brother Asif
contested the election of Village Pradhan in
2000.

9. This witness further stated that
Mumtaz against whom Asif contested the
election is in relation with the accused by
third degree of generation. This witness
further stated that his wife Mehnaz
contested the election of Pradhan in 2005
against Smt. Shabnam wife of Tanveer who
is son of his uncle Mohd. Umar. He further
stated that Smt. Firozan wife of Mumtaz
also contested the election. This witness
denied a suggestion that on account of this
election he was not on the talking terms
with Mohd. Umar. This witness further
stated that he, his uncle- Mohd. Umar and
deceased- Asif have no criminal history.
The place of occurrence was an habitated
place and there were shops nearby. In
further cross-examination, he stated that the
I.O. did not prepare the site plan in his
presence, however, he has told the detail
about the incident to the I.O. He further
stated that Mumtaz has died about seven
years ago and qua his sons Asrar and Avrar,
he had no knowledge whether the cases are
pending against both of them and he did
not know whether Mumtaz also faced the
criminal
cases.
In
further
crossexamination, PW-1 stated about the place
of occurrence, the time when they started
from village- Maukheda and the manner in
which they took injured Asif in a car and
that his clothes were also blood stained.
This witness further stated that he did not
know whether one Mustakim by dialing
100 number gave information to the police
and rather denied whether that has given
information that there were four assailants.
On a specific question about the firing by
the accused person, this witness replied that
when accused gave him slaps, Asif moved
about one pace. He further stated that he
cannot tell which accused fired upon Asif,
however, all the four accused fired. He
further stated that when the accused fired
upon Asif he was about one and a half steps
away from them. At the end of the lengthy
cross-examination, this witness denied a
suggestion that he had not witness the
occurrence and also that he was not present
at the spot.

10. PW-2- Mohd. Umar stated that
deceased- Asif was his nephew and on the
date of incident at about 5:00 PM, he and
Asif were going on one motorcycle and on
the second motorcycle Aabid and Afsar
were coming. This witness also gave the
complete description of the incident, when
accused Nadeem and Ahrar after giving
beating to Asif took out the country made
pistol and fired on Asif, which hit him and
thereafter, he fell down and accused by
firing in air ran away. When Asif was taken
to the hospital, he was declared dead. He
further stated that his statement was
recorded by the I.O. after about 8 to 10
days. This witness also stated that Village
Pradhan Mumtaz died about 5-7 years ago
and Avrar and Asrar are his sons. He further
stated that his son Tanveer's phone no. is
9837552410 and his younger son is named
8 All. Ahrar Ahmad Vs. State of U.P.
667
Tafseer and both of them reside in Saudi
Arabia. This witness further stated that he
did not know if any part of his statement
made to the I.O. was not recorded in his
statement.
This
witness
was
crossexamined at length by the defence counsel
about the relationship of the accused with
Mumtaz. He denied a suggestion that he
was not present at the spot along with
Aabid and Afsar or that one Mustakim prior
to his reaching at the spot gave information
to the police by dialing 100 number. PW-2
also denied a suggestion that he along with
Aabid and Afsar reached the hospital, later
on, when the deceased was got admitted in
the emergency hospital by some electrician
and they reached subsequent to the death of
Aabid.

11. PW-3- Dr. Sachin Kumar who
conducted the post-mortem reported the
injuries as:

"चोट नां०- 1- आग्नेआस्त्र का प्रवेश घाव
1 x 1 cm चेस्ट केवटी िक गहरा दायीं िरफ छािी
पर ऊपरी भाग में दायी तनतपल से 3 से०मी० ऊपर 12
बजे की तस्थति में तजसके मातजषन अन्द्दर की िरफ थे।
चोट नां०- 2 आग्नेआस्त्र का प्रवेश घाव
1.5 x 1.5 cm चेस्ट केवटी िक गहरा दायी िरफ
छािी में दातहली तनतपल के 6 cm ऊपर की िरफ 5
बजे की तस्थति पर था उसके तकनारे अन्द्दर की ओर थे।
चोट नां०-3 आग्नेयास्त्र के तनकलने का
घाव 1x1 cm छािी की गुहा िक गहरा दायी िरफ
छािी में बाांजू की साईड में बगल से 6 cm नीचे मध्य
भाग में इसके तकनारे बाहर की िरफ थे।

चोट नां०-4 आग्नेयास्त्र का तनकाशी का
घाव 1 x 1 cm छािी की गुहा िक गहरा बायीं िरफ
छािी के पीछे बायी स्कपला से 6 से०मी०2 बजे की
तस्थति में इसके तकनारे बाहर की िरफ तनकले हुये थे
छािी की गुहा को खोलने पर चोट नां० 1 व 4 एक
दूसरे से तमली हुई थी।
चोट नां० 2 व 3 आपस में तमली हुई थी।
दायाां फेफडा तपलूरा व पसली सां०3 4,5,6 टूटी हुई
पायी गयी, लगभग 1.8 लीटर खून दायी छािी की
गुहा में पाया गया।
चोट नां०-5 फटा हुआ घाव 1.5 cm x
1 cm दायी िरफ छािी के ऊपरी भाग पर चोट सां०2 के 3 cm नीचे था।
चोट नां० 6 - फटा हुआ घाव 1 cm x
1 cm दायी िरफ छािी के ऊपरी भाग पर चोट सां० 5
से आधा से०मी० नीचे था।
चोट नां०-7- आग्नेयास्त्र का प्रवेश घाव 1
cm x 1 cm बायीं जाांघ पर बायी् घुटने से 10 cm
ऊपर सामने के भाग पर था। इस चोट को खोलने पर
एक धािु की मेटातलक बुलट जाांघ से पायी गयी।"
In cross-examination this witness
stated that

"चोट नां०-1 पर कोई कातलग व गोडन (
बेलेकतनांग व टेटोइांग) मौजूद नहीं थी। चोट नां०-2 पर
भी बेलेकतनांग व टेटोइांग मौजूद नहीं थी। यतद मृिक को
6 फुट से कम की दूरी से आग्नेयास्त्र से चोट पहुांचाई
गयी होिी िो इन चोट नां० 1 व 2 बेलेकतनांग टेटोईग
आना सम्भव था।"

This witness stated that the
injured cannot sustain injuries on
both side of his body i.e. front and
backside due to a fall and the injury
nos. 5 and 6 can be caused by a
pointed article made of an iron rod.

12. PW-4- Bhupendra Singh constable
proved that he had recorded the chik FIR
Ex. K3. In cross-examination, he stated that
his statement was recorded by the I.O. He
pleaded ignorance, if prior to registration of
the FIR, some message through wireless
was received in the police station that Asif
has died.

13. PW-5- S.I.- Shyam Sundar
stated that on 14.10.2012, he had gone to
668 INDIAN LAW REPORTS ALLAHABAD SERIES
district hospital's mortuary and prepared
the Panchayatnama regarding death of
Mohd. Asif. The Panchayatnama is Ex.K-5,
the sketch of the dead body was prepared
which is Ex.K-6, letter of CMO is Ex.K-8
and another letter to R.I. is Ex.K-9. The
dead body was handed for post-mortem as
per letter is Ex.K-10. The S.H.O.- Jitendra
Kumar visited the spot and collected the
blood stained and simple earth in separate
boxes which were sealed. The recovery
memo of the S.H.O. is Ex.K-11. In crossexamination, this witness stated about the
time of panchayatnama as well as the time
when the post-mortem was conducted. This
witness stated that at page 33, in the
Panchayatnama, there is over-writing as
rapat no.40 is changed to 41. He denied
suggestion that he has prepared the papers
of investigation while sitting in a police
station.

14. PW-6- Jitendra Kalra stated
that he was S.H.O. in P.S.- Kotwali and he
has supervised the investigation. chik FIR
and G.D. was registered and thereafter, the
investigation started. He prepared the site
plan at the spot which is Ex.K-12. This
witness also stated about the arrest of
accused- Nadeem and upon his pointing out
he
recovered
a
revolver
used
in
commission of crime and the accused also
confessed
about
involvement
of
his
brother- Ahrar. This witness further stated
that accused Nadeem took the investigation
team to his house and from a room,
recovered one revolver in which there were
three empty cartridges and five live
cartridges in the holster. The revolver was
of 32 bore and it was licensed in the name
of Nadeem. The recovery memo of the
weapon
is
Ex.K-13.
Thereafter,
on
03.11.2012, Afsar was arrested and his
statement was recorded and confessed
about committing the offence along with
accused Nadeem. He stated that he had
thrown away the country made pistol.
Thereafter, PW-6 along with witnesses and
accused Ahrar went to place where he has
stated about throwing the country made
pistol but the same could not be recovered.
He approved the charge-sheet which is
Ex.K-14. With the permission of the court,
a sealed packet was opened which was
consisted of five live cartridges in a belt
and a revolver of 32 bore, and from the
envelope, three empty cartridges EC1, EC2
and EC3 were taken out and two empty
cartridges TC1 and TC2 along with bullets
were seen. The witness identified all these
recoveries and the same were exhibited
from Ex.1 to Ex.15. One bullet EB1 was
also taken out from the packet which the
witness stated that it was recovered from
the body of the victim at the time of the
post-mortem. The same is Ex.16. The gun
license is Ex.17. Thereafter, all these
articles were sealed in a white coloured
cloth bag is exhibited from Ex.18 to Ex.21.
This witness stated that these articles were
sent to F.S.L. for cross-examination.

15. In cross-examination, this
witness stated about the information
received in the police station at about 7:00
PM. He stated that he got the information
from the brother of deceased Asif and after
recording the statement, he went to
hospital. He also stated about recording the
statement by Constable regarding the chik
FIR and when he reached the hospital, he
found Asif was lying dead. In further crossexamination, this witness stated that he had
prepared the site plan of the spot on the
identification of the informant and has
given complete details of the investigation
conducted by him. He admitted that later
on, the receiving information from a secret
informer regarding two unknown persons,
he had removed their names in the
8 All. Ahrar Ahmad Vs. State of U.P.
669
investigation
as
the
informant
and
witnesses have stated that only two persons
have fired upon the deceased. He stated
that he recorded the statement of both the
witnesses on 26.11.2012 but could not
record the statement of Mohd. Umar and
Afsar for a period of about more than one
month being busy in government work. At
spot, he did not recover any empty
cartridge and no bullet or pellet was seen
on the wall at nearby place. In further
cross-examination, this witness gave details
about the time, the conduct of post-mortem,
the recovery effected from the spot etc.
After a lengthy cross-examination, he
denied a suggestion that he visited the spot
and
he
prepared
the
investigation
documents while sitting in the police
station.

16. Thereafter, the statement of
accused Nadeem and Ahrar was recorded
under Section 313 of Cr.P.C. and all the
incriminating evidences were put together
to them. In reply to question no.7 regarding
the enmity of the informant side and the
accused, it was asked that as grandfather of
accused contested the election against
deceased Asif, he replied that Mumtaz is
not my grandfather and there is a difference
of five degree of generation in between and
they did not have any direct relation.
Regarding registration of the chik FIR and
GD Nos. Ex.K3 and Ex.K4, this witness
stated these are ante-time and the I.O. has
falsely implicated them due to part them.
Regarding
question
no.25,
i.e.
what
clarification he want to give, the accused
replied that on the date of incident Ahrar
was not with him. He had not committed
any offence and at the time of incident, he
was in Bulandshahr and at night he came to
know about the death of Asif, when he
reached his village. Thereafter, by calling
him, from his home his licensed revolver
was taken in possession by way of a false
recovery.

17. In the statement under Section
313 of Cr.P.C., accused Ahrar was also put
to all the incriminating evidences and he
gave similar reply to question no.7 that
Mumtaz and his family has a gap of five
degree of generations. Regarding question
nos. 19 to 21, recovery of blood stained
earth, weapon, the witness stated that the
police under pressure of the informant's
side has falsely implicated. In reply to
question no.25 for giving his clarification,
replied that at the time of incident, he was
reading 'Namaz' in the Jama Masjid of
village- Akbarpur. A total number of 36
respectable persons of the village gave
affidavit to S.S.P.- Bulandshahar in this
regard that he has no connection with the
offence.
18. In defence, DW-1- Hussain M. Zaidi,
Nodal Officer, Idea Cellular Limited was
examined who stated that in compliance of
the order of the court, he has brought the
call details and location details from the
mobile nos. 9837555515, 9837552410 and
9927523132 for the date 14.10.2012, the
same is signed and attested by him with a
seal of the company. The details of all the
mobile phones were Ex.Kha-2 to Ex.Kha-4.
He has given the details of all the three
mobile numbers from 1:00 PM to 6:00 PM.
In
cross-examination
by
the
public
prosecutor, he stated that one tower covered
about one kilometre as per the Ministry of
Telecommunication's directions.

19. DW-2- Om Prakash Singh,
Zonal Control Police, Office of Inspector
General stated that on 14.10.2012, he was
Radio Inspector in the control room on
14.10.2012 and at about 17:45 hours from
mobile no. 9027108618. Informant gave
information that one person is injured in
670 INDIAN LAW REPORTS ALLAHABAD SERIES
firing incident in Veesa Colony to the
police. The informant gave his name
Mustakim,
s/o
Fakhruddin,
r/o
Chandrawali,
P.S.-
Sikandarabad.
Thereafter, the police team/ Kotwali Nagar
police station reached the spot and sent
injured
to
the
hospital.
In
crossexamination by public prosecutor and he
stated that he is making the statement on
the basis of the complaint registered from
100 number.

20. DW-3- Faheem Ahmad, S.O.,
P.S.- Kotwali (rural) stated that on
14.10.2012, at about 4:45 PM, he had gone
to Jama Masjid of Village- Akbarpur for
reading the 'Namaz' and found that Ahrar
s/o Hussain Khan was also present in the
Jama Masjid and about 30-35 persons were
also reading the 'Namaz'. Ahrar stay in the
Masjid for half an hour later on he came to
know that Asif is murdered and he had
given an affidavit on 27.11.2012 in this
regard to the S.S.P., he also proved the
copy of the affidavit. He also stated that
apart from him, 20-25 persons have also
given the affidavit. In cross-examination,
he gave name of some of the persons who
have given the affidavit and denied a
suggestion that he is making a false
statement.

21. The trial court thereafter, vide
impugned judgment dated 12.11.2024 held
the appellant guilty of offence under
Section 302/34 of I.P.C and vide impugned
order dated 15.11.2014 awarded them life
imprisonment along with fine as discussed
above.

22. Learned counsel for the
appellant has argued that the FIR is
registered after a delay of about 1 hour 40
minutes and it is stated that four persons
have committed the offence whereas during
investigation, the I.O.- PW-6- S.H.O.-
Jitendra Kalra has stated that on the basis
of the information from some secret
informer and as per the statement of the
informant and the witnesses only two
persons were found involved who fired
upon the deceased. Counsel submits that
informant has given an aggravated version.
It is next argued that the statement of the
eye-witness is not trustworthy. PW-1-
Aabid and PW-2- Mohd. Umar are in fact
not the eye-witnesses. It is submitted that
from the statement of DW-1, Nodal Officer,
the call details of the phones of PW-1 and
PW-2 show that they were not present at
the place of occurrence. It is argued that in
cross-examination of PW-1, a specific
question was asked about the mobile phone
no. 9927523132 which he was using at the
time of the incident and he admitted it to be
correct. As per the statement of DW-1, the
location of the said phone was not at the
place of occurrence. It is argued that this
witness has proved that on 14.10.2012,
PW-1 for whole day till 5:15 PM was in
village- Akbarpur and has not come to
village- Maukheda where the incident took
place.

23. It is submitted that even from
the call details of Tanveer, it is proved that
he was in his village- Akbarpur, and was
not at Maukheda till 5:51 PM and he did
not make any phone call. It is argued that in
such circumstances, both Afsar and Abid
persons have not seen the place of
occurrence where allegedly the accused
were present. Counsel submits that even
call details of Tanveer proved that no call
was made on his phone which falsify the
version of the prosecution that he was
called at the spot by the informant. Counsel
submits that there is nothing on record to
prove that on the date of incident, Afsar had
invited 5-10 persons at his house for a feast
8 All. Ahrar Ahmad Vs. State of U.P.
671
at about 3:00 PM. As per his call details, he
himself was not present at his place of
residence, the story build up by the
prosecution
that
the
informant
and
deceased had gone to house of Afsar for
attending an invitation is not proved.
Similarly, his presence at the spot is also
not proved. It is next argued that the
prosecution has failed to prove any motive
against the accused person. The motive set
up by the prosecution that deceased Asif
has contested the election against one
Mumtaz in the year 2000 and therefore, the
accused persons being the grandson of
Mumtaz had enmity with Asif is not
proved. It is argued that firstly PW-1 has
clearly admitted that Mumtaz was related
to them in the third degree of generation. It
is also argued that if election was contested
in the year 2000, there was no justification
for committing the offence in 2012 as
Mumtaz has already died in the year 2006.

24. Learned counsel has argued
that the motive with regard to contesting
the election 12 years prior to the incident
that to when Mumtaz, a distant collateral of
the accused had already died in the year
2006 is totally unbelievable. It is next
argued that as per the informant, the
incident took place outside the shop of one
Asif who was having a mobile phone shop
but the he was not examined as an
independent
witness
to
support
the
interested witnesses PW-1 and PW-2. It is
argued that the occular and medical version
of the prosecution do not corroborate each
other.

25. As per the oral evidence, the
gun shot were fired from a close range but
on injury nos. 1, 2 and 7 neither there is
charring nor tatooing and there is no
inversion of skin wound. It is also argued
that the doctor has failed to explain how
injury nos. 5 and 6 were caused. It is also
argued that in the stomach of the deceased
only 150mg food was found whereas the
prosecution version was that the deceased
along with PWs was coming back after
having a feast on invitation from Afsar. It is
next argued that it has come in the
statement of DW-1 that the information in
the police control room was given by one
Mustakim s/o Fakhruddin at 17:45 hours
who was resident of village- Chandrawali
and however, this informant was never
made a witness by the police.

26. It is also submitted that
contrary to the version of PW-1 and PW-2
that after the incident, he called Tanveer on
his mobile phone and he came and took the
injured person to the hospital, the record
shows that one Ahad Shyam got the
deceased admitted in the hospital. The
information to the police was given vide
GD No. 40 at 18:39 hours by Ajay Kumar,
ward boy but the I.O. neither recorded the
statement of Mustakim nor of Ahad Shyam
and even the statement of Ajay Kumar was
not recorded as a prosecution witness
which raises a serious doubt about the
presence of PW-1 and PW-2 at the spot. It
is also argued that there is a variation in the
statement of PW-5- Shyam Sundar and
PW-6-SHO- Jitendra Kalra to support the
argument that the I.O. has not signed the
Panchayatnama and for a period of 1 and
3/4 months, the statement of the eye
witnesses were not recorded and it was not
clear in the statement where there were two
or four assailants. It is next argued that the
recovery of license revolver from accused
Nadeem is doubtful as it is recovered from
the room which was already open.

27. It is next argued that the
Forensic Science Lab report does not
support the prosecution version as it is not
672 INDIAN LAW REPORTS ALLAHABAD SERIES
clear
which
weapon
was
used
for
commission of offence. Learned Senior
Counsel has laid much emphasis on this
report to submit that an opinion is given
that the bullet retrieved from the body of
the deceased, was not fired from the
revolver recovered from the accused
Nadeem and therefore, it is not proved that
the offence was committed from the
licensed revolver of Nadeem. It is also
submitted that no recovery was effected
from accused Ahrar.

The FSL report is reproduced as
under:

"तवतध तवज्ञान प्रयोगशाला उत्तर प्रदेश, 15
िाज रोड, आगरा-282001
प्रेर्क,
सांयुक्त तनदेशक

तवतध तवज्ञान प्रयोगशाला, उ०प्र०,
15 िाज रोड, आगरा- 282001

सेवा में,
पुतलस क्षेत्रातधकारी नगर,
जनपद- बुलन्द्दशहर।
पत्राांकः
8526-आग्ने-12
तदनाांकः- 12.6.13
अपराध
सां०ाः
688/12
राज्य बनामः नदीम
राः 302 IPC 27/30A Act
थानाः कोिवाली नगर

आपका
पत्र
सां०
तदनाांक-21.12.12

उपयुषक्त मामले से सांबांतधि तनम्नतलतखि
प्रदशष प्रयोगशाला में तदनाांक 24.12.12 को आपके
तवशेर् वाहक काां० 108 सी.पी. जगदीश प्रसाद द्वारा
प्राप्त हुये।
(1) िीन अदद नमूना मुहरें, तजन्द्हें न-1 से
न-3िक से तचतन्द्हि तकया गया है।
(2) कपडे का समुतरि बण्डल, तजस पर
न-1 जैसी महोरे लगी है िथा इस पर "...एक
ररवाल्वर... िीन खोखा व 5 तजन्द्दा कार. 32 बोर ..
अ.सां. 688/12..." आतद सा तलखा है, को खोलने
पर तनम्न प्रदशष प्राप्त हुये।
(A) कपडे का समुतरि बण्डल, तजस पर
न-2 जैसी मोहरे लगी है िथा इस पर ".. एक ररवाल्वर
.32 बोर व 3 खोखा कारिूस व 5 तजन्द्दा कारिूस
.32 बोर ... अ.सां. 688/12 ... बनाम नदीम..."
आतद सा तलखा है, को खोलने पर कवर से एक अदद
.32 बोर ररवाल्वर नां. FG 34117, ररवाल्वर के
चैम्बर से िीन चले कारिूस .32 बोर (KFS
&WL) व कवर से पााँच तजन्द्दा कारिूस .32 बोर
(KFS &WL) प्राप्त हुये। ररवाल्वर को 1/2013
से, .32 बोर चले कारिूसों को EC-1,EC-2 व
EC-3 से िथा .32 बोर तजन्द्दा कारिूसों को LC-1
से LC-5 िक से तचतन्द्हि तकया गया है।
(B) कागज का समुतरि तलफाफा, तजस
पर न-3 जैसी मोहरे लगी है िथा इस "PM
N.686/12Dt.15-10.12 Mohd. Asif
...One metallic bullet..." आतद सा तलखा
है, को खोलने पर कपडे की सील्ड पोटली प्राप्त हुई,
तजस पर न-3 जैसी मोहरे लगी है, इसे खोलने पर एक
चली बुलैट .32 बोर (लैड धािु की) प्राप्त हुई। तजसे
EB-1 से तचतन्द्हि तकया गया है।
नोट- प्राप्त .32 बोर ररवाल्वर का नां. FG 34117
है, जबतक अग्रेर्र् पत्र में ररवाल्वर का नां. FS 3447 वतर्षि है।
तनरीक्षर्
तववातदि .32 बोर ररवाल्वर नां. FG
34117 तचतन्द्ति 1/2013 द्वारा .32 के दो कारिूस
प्रयोगशाला में परीक्षाथष चलाये गये, तजन्द्हें TC1,TC-2 से तचतन्द्हि तकया गया है। इनसे ररकवर की
गयी बुलैट्स को क्रमशः TB-1,TB-2 से तचतन्द्हि
तकया गया है।
तववातदि एवां परीक्षाथष कारिूसों/बुलैट्स पर उपतस्थि
तचन्द्हों का तनरीक्षर् हैण्डमैग्नीफायर एवां िुलनात्मक सूक्ष्मदशी यांत्रों
द्वारा तकया गया।
8 All. Ahrar Ahmad Vs. State of U.P.
673
तववातदि कारिूस तचतन्द्हि EC-1,EC-2 व EC3, पर फायररांग तपन व ब्रीच के तचन्द्ह उपतस्थि है।
परीक्षाथष कारिूस तचतन्द्हि TC-1,TC-2 पर फायररांग
तपन व ब्रीच के तचन्द्ह उपतस्थि हैं।
तववातदि बुलैट् तचतन्द्हि EB-1, पर 6-6
लैण्डस/ग्रूव्स के तचन्द्ह उपतस्थि हैं, तजनका घुमाव
दातहनी िरहफ है। परीक्षाथी बुलैट्स तचतन्द्हि TB-1,
TB-2 पर 6-6 लैण्डस/ग्रूव्स के तचन्द्ह उपतस्थि हैं,
तजनका घुमाव दातहनी िरफ है।
कारर्
तववातदि एवां परीक्षाथी कारिूसों/बुलैट्स पर
उपतस्थि तचन्द्हों का तमलान िुलनात्मक सूक्ष्मदशी यांत्र
द्वारा तकया गया। तववातदि .32 बोर कारिूस तचतन्द्हि
EC-1,EC-2 व EC-3, पर उपतस्थि फायररांग
तपन व ब्रीच के तचन्द्ह व्यतक्तगि तवशेर्िाओां में परीक्षाथष
कारिूसों तचतन्द्हि TC-1,TC-2 पर उपतस्थि
फायररांग तपन व ब्रीच के तचन्द्हों के समान है। तववातदि
बुलैट् तचतन्द्हि EB-1 पर उपतस्थि लैण्डस/ग्रूव्स के
तचन्द्हों में, परीक्षाथष बुलैट्स तचतन्द्हि TB-1व TB-2
पर उपतस्थि लैण्डस/ग्रूव्स के तचन्द्हों से िुलनाथष
व्यतक्तगि तवशेर्िाओां का अभाव है।
पररर्ाम
(1) तववातदि .32 बोर कारिूस तचतन्द्हि
EC-1,EC-2 व EC-3, .32 बोर ररवाल्वर नां०
FG 34117 तचतन्द्हि 1/2013 द्वारा चलाये गये हैं।
(2) तववातदि .32 बोर बुलैट् तचतन्द्हि
EB-1 पर .32 बोर ररवाल्वर नां०FG 34117
तचतन्द्हि 1/2013 से िुलना करके तनतिि अतभमि
तनधाषररि करने हेिु व्यतक्तगि तवशेर्िाओां का अभाव है।
नोटः-(1) उपरोक्त पररर्ाम प्रदशों के
माइक्रोस्कोतपक तनरीक्षर् पर आधाररि है।
(2) प्रदशष वापसी का प्रबांध शीघ्र करें।"

28. Learned counsel has further
argued that it has come in the statement of
DW-3, an independent witness that at the
time of incident accused Ahrar was not
present at the spot and he was reading the
'Namaz' in the Jama Masjid of village-
Akbarpur. The counsel has argued that as
many as 36 people of the said village were
also reading the 'Namaz' at the relevant
time and given affidavits to SSP but were
not made as the part of the investigation.
Counsel submits that even recovery of
blood stained earth do not to prove guilt of
the appellant.

29. Learned counsel further argued
that the presence of Ahrar Ahmad is not at
all proved at the spot and even no recovery
of the country made pistol was effected
from him.

30. In reply, learned counsel for
the informant as well as learned AGA for
the State have, however, opposed the
arguments of the appellant on the ground
that the motive to commit the offence is
proved as it has come that the deceased
Asif has contested election against one
Mumtaz in the year 2000 and Mumtaz is
grandfather
of
the
accused
person.
Therefore, they had the enmity to commit
the offence. It is also submitted that both
PW-1 and PW-2 are credible witnesses who
are present at the spot and have seen the
incident. They are the eye witnesses and the
call detail records cannot be read in
evidence in the absence of 65B certificate.
It is also argued that as per the prosecution
version, the accused persons first stopped
the motorcycle of the deceased Asif, pick
up a brawl and then gave him beatings and
PW-1 and PW-2 tried to intervene, by
taking out the gun they fired upon the
deceased. It is also argued that the time and
place of incident is not disputed by the
accused while by not giving any suggestion
to the prosecution witnesses of fact. It is
submitted that Afsar s/o Altaf was scriber
of the complaint forming the basis of the
chik FIR and therefore, his presence at the
spot is proved. It is argued that there is no
reasons to discard the statement of
prosecution witnesses and variation if any,
674 INDIAN LAW REPORTS ALLAHABAD SERIES
in the statement of PW-1 and PW-2 as well
as between PW-5 and PW-6 is minor and in
ordinary course the same is bound to occur.
It is also argued that the prosecution has led
sufficient evidence to prove the guilt of
accused person.

31. Learned counsel submits that
as per the prosecution version, two firearms
were used, however, from the statement of
PW-3- Dr. Sachin Kumar, it is not proved
that injury nos. 1, 2 and 6 were caused with
two
different
firearm
weapons
and
therefore, in the absence of any recovery
from appellant- Ahrar Ahmad, the injuries
attributed to him, are not explained in the
post-mortem.

32. After hearing counsel for the
parties and on re-appreciation of evidence,
we find that the prosecution has been able
to prove the guilt of appellant- Nadeem
Ahmad but could not prove the guilt of
Ahrar Ahmad beyond doubt for the
following reasons:

A.
Appellant-
Nadeem
Ahmad is named in the FIR along
with accused- Ahrar. However, in
the FIR, two unknown persons
were also named but later on, their
names were dropped as their
identity could not be proved.
B. PW-1 has categorically
stated that Nadeem and Ahrar have
fired upon from their country made
pistol (tamancha) which hit Asif.
When PW-1 along with other
witnesses tried to catch hold of the
accused, they ran away by firing in
air. A motive is attributed that
deceased
Asif
has
contested
election against one Mumtaz who
was the grandfather of accused,
being a collateral and Nadeem had
a grudge against him on that
account. This witness has further
stated that accused Nadeem was
having
relationship
with
the
deceased Asif and even Asif has
contested the election in the year
2000.
C. The police has recovered
the licensed revolver of accused
Nadeem along with three cartridges
in the chamber of the revolver and
five live cartridges in the holster
which was sent to the FSL for
examination.
D. The trial court has
rightly recorded a finding that
Nadeem has fired upon Asif with
his licensed revolver. However, no
firearm was recovered from the
appellant- Ahrar. As
per
the
statement of PW-3- Dr. Sachin
Kumar who conducted the postmortem examination, has nowhere
stated that the characteristics of the
injuries sustained by the deceased,
by use of firearm indicate that the
same were caused by two different
firearms, therefore, only the injury
attributed to accused- Nadeem by
his revolver is corroborated by the
post-mortem report.
E. Even PW-2 had stated
that accused- Nadeem and Ahrar by
taking out the country made pistol
fired upon Asif, however, no such
firearm
was
recovered
from
appellant- Ahrar. This witness has
also attributed the main allegation
towards accused- Nadeem and even
motive is attributed towards him.
Even this witness stated that there
are two unknown accused who also
fired
upon
deceased-
Asif.
However, no evidence in this
regard is led by the prosecution. In
8 All. Ahrar Ahmad Vs.