# Bashir & Anr. / (In Jail) v. State of U.P

- **Citation:** (2019) 4 ILRA 479
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-17
- **Case number:** Criminal Appeal No. 2421 of 1985
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bashir-anr-in-jail-v-state-of-u-p-45003
- **Pages:** 14

## Headnote

A. Evidence Law - Indian Evidence Act,
1872 -Motive - direct evidence - eye
witness - deceased died on account of fire
arm injuries - cause of death - shock and
hemorrhage as a result of ante mortem
injuries - no motive to commit the
murder of the deceased - in case of direct
evidence motive has no significance -
P.W. 2(eye witness of the occurrence)
appears to be highly inimical witness
against the appellant - eye witness
standing at a distance of 50 paces from
the place of occurrence - eye witness
reached the place of occurrence after half
an hour and saw that the deceased lying
dead - his presence at the place of
occurrence is doubtful - no recovery of
any weapon or incriminating article made
from the possession of the appellant -
Prosecution failed to prove its case
beyond
reasonable
doubt-
Accused
entitled to be acquitted . (Para 31, 34 & 35)

Criminal appeal allowed. (E-7)

## Text

_Characters 0–39,967 of 47,794. This is a partial read: ask again with offset=39967 for what follows._

4 All. Bashir & Anr. Vs. State of U.P.
479
and the evidence on record, we do not
find that the learned trial Judge committed
any other illegality in convicting the
appellant
and
awarding
aforesaid
sentences to him.

50. This appeal lacks merit and is
accordingly dismissed.

51. Appellant Bhim Sen is on bail.
His bail bonds are cancelled and his
sureties
discharged.
Chief
Judicial
Magistrate, Mathura is directed to get
appellant Bhim Sen arrested and sent to
jail for serving out the remaining part of
his sentences.

52. There shall however, be no order
as to costs.
----------
(2019)12 ILR A479

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 2421 of 1985

Bashir & Anr. ...Accused/Appellants
 (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.A. Shah, Sri Ambrish Kumar Kashyap

Counsel for the Respondent:
D.G.A.

A. Evidence Law - Indian Evidence Act,
1872 -Motive - direct evidence - eye
witness - deceased died on account of fire
arm injuries - cause of death - shock and
hemorrhage as a result of ante mortem
injuries - no motive to commit the
murder of the deceased - in case of direct
evidence motive has no significance -
P.W. 2(eye witness of the occurrence)
appears to be highly inimical witness
against the appellant - eye witness
standing at a distance of 50 paces from
the place of occurrence - eye witness
reached the place of occurrence after half
an hour and saw that the deceased lying
dead - his presence at the place of
occurrence is doubtful - no recovery of
any weapon or incriminating article made
from the possession of the appellant -
Prosecution failed to prove its case
beyond
reasonable
doubt-
Accused
entitled to be acquitted . (Para 31, 34 & 35)

Criminal appeal allowed. (E-7)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present appeal has been filed
by two accused-appellants out of which
appellant no. 1 Bashir son of Sri Murli
died during the pendency of appeal. The
appeal on his behalf has already been
ordered to be abated by Co-ordinate
Bench of this Court vide order dated
13.9.2018 and the present appeal survives
with respect to appellant Afsar son of
Roab Sher only, hence the Court proceeds
to adjudicate the aforesaid appeal with
respect to the said appellant.

2. The present appeal has been filed
by the appellant against the judgment and
order dated 29.7.1985 passed by Ist
Additional Sessions Judge, Farrukhabad in
S.T. No. 364 of 1984 convicting and
sentencing the appellant under section
302/34 I.P.C. to undergo life imprisonment.

3. The prosecution case in brief is
that an F.I.R. was lodged by the informant
P.W. 1 Neksu at police station Kampil
against two accused, namely, Bashir and
Afsar stating that on 20.3.1984 he along
480 INDIAN LAW REPORTS ALLAHABAD SERIES
with his brother Ali Mohammad and one
Kallu of his village had gone to village
Pankhiya Nagla to see the Shisham tree
and when they were returning to their
village then at the outskirt of village
Iklahra where on either side of the road
which run from West to East there were
fields of one Niwazi. He stated that quite
close to the field belonging to Niwazi on
the Southern side of the road there was
field of Ali Mohammad in which there
was a Rahat and a well. Ali Mohammad
was a little ahead of him and Kallu and
when they were near the field of Niwazi
and the Rahat at about 2 p.m. in the
afternoon both the accused persons, who
had been lying ambush in the field of
Niwazi came out with country made
pistols in their hands and fired at Ali
Mohammad, who tried to run away but
fell down in other field of Niwazi towards
North of the road in which Barley crop
had been standing. Both the accused
persons went near Ali Mohammad and
again fired at him with their pistols saying
"we have taken the revenge today".
Thereafter, both the accused ran away
towards the North. They were chased by
the witnesses upto some distance but none
of them could be apprehended.

4. Prior to 3-4 years of the present
incident, the police had arrested accused
Bashir along with country made pistol and
since then the accused Bashir used to bear
enmity with his brother Ali Mohammad.
Accused Bashir was having relations with
one Manohar of his village, who was a
criminal. He stated that because of
inimical relationship with his brother, the
two accused with a conspiracy of
Manohar, have committed murder of his
brother Ali Mohammad. It was stated by
him that the dead body of his brother is
lying at the spot and near the dead body,
he has left his family members and other
persons of his village, who were present
there and prayed that necessary action be
taken against the accused persons.

5. The F.I.R. was lodged by the
informant after getting it written by one
Murtaza Ali. On the basis of the said written
report (Ext. Ka. 1) submitted by the informant
Neksu which he got scribe by Murtaza Ali, a
chik F.I.R. (Ext. Ka-3) was prepared at police
station Kampil. The information of the same
was also endorsed in G.D. No. 16 copy of
which was marked as Ex. Ka-6 and F.I.R. was
registered as case crime no. 55 of 1984 under
section
302
I.P.C.
(Ext.
Ka-3).
The
Investigating Officer Ram Autar Singh (P.W.
7), who was entrusted with the investigation of
the case, reached at the spot immediately at
about 6 p.m. He prepared the inquest report of
the deceased (Ext. Ka-5) and prepared photo
nash, challan nash (Exts. Ka-7 and 8) and
wrote letters to Reserve Inspector and C.M.O.
for post mortem which were marked as Exts.
Ka-9 to 11. He prepared the site plan of the
place of occurrence (Ext. Ka-15) and took in
his possession the blood stained and simple
earth, shoes put on by the deceased and a belt
of cartridges found at the place of occurrence
and prepared its recovery memos which were
marked as Exts. Ka-12 to 14. The post mortem
on the dead body of the deceased was
conducted by Dr. S.C. Gupta (P.W. 4), who
proved the same as Ext. Ka-2. After recording
the statements of the witnesses and completing
all other formalities the Investigating Officer
concluded the investigation of the case and
submitted charge-sheet (Ext. Ka.16) against the
two accused persons before the competent
court.

6. The trial court framed charges
against the two accused persons, who in
their statements recorded under section
313 Cr.P.C. have denied the charges and
4 All. Bashir & Anr. Vs. State of U.P.
481
pleaded not guilty stating that they have
been falsely roped in the present case due
to animosity. In defence they submitted
that the deceased Ali Mohammad was
killed at some point of time in the night in
his field near the place of occurrence
when he was keeping watch over his
crops. According to the suggestion put
forward by the defence, one Jauhari Kisan
belonging to the gang of notorious dacoit
Mahabira was killed in a fake encounter
by the police with the help of Ali
Mohmmad-the deceased and his three
companions, namely, Mukut, Babu and
Ram Sanehi. The gang of Mahabira
decided to take revenge and killed the
three companions of Ali Mohammad one
by one. In a bid to kill Ali Mohammad,
they incidentally killed his brother Ali
Mulla thereafter finding an opportunity
they killed Ali Mohammad too in his own
field.

7. The prosecution in support of its
case
examined
P.W.
1-Neksu-the
informant of the case, P.W. 2 Kallu, who
is said to be the eye witness of the
occurrence, P.W. 3 Murtaza Ali-Scribe of
the F.I.R., P.W. 4 Dr. S.C. Gupta, who
conducted the post mortem of the
deceased, P.W. 5 Head Constable Ram
Karan, P.W. 6 Constable Sobran Singh
and P.W. 7 Ram Autar Singh.

8. The accused did not examine any
witness in their defence.

9. P.W. 1 Neksu, who is the
informant of the case and real brother of
the deceased was examined by the trial
court and in his deposition before the trial
court, he has stated that he along with his
brother Ali Mohammad-the deceased and
one Kallu of his village were going back
to their village Iklahra from village
Pankhiya Nagla where they had gone to
cut some Shisham trees and at two p.m.
when they reached near the Rahat of
Niwazi, the accused Bashir and Afsar
came out from the field of wheat with
country made pistol in their hands and
both the accused fired at the deceased Ali
Mohammad due to which he received
injuries on his person and when he tried to
run away both the accused assaulted him
with lathi on his feet on account of which
he fell down and thereafter again they
fired at him. On the alarm raised by him
and other villagers, both the accused fled
away towards North. His brother Ali
Mohammad died at the spot within 5-6
minute. The witness Munshi had also
arrived at the spot. He deposed that prior
to 5-6 years of the incident, the deceased
Ali Mohammad had got the accused
Bashir arrested by the police for keeping
an illegal gun on account of which the
accused Bashir was keeping ill-will with
the deceased. The witness stated that he
does not know whether accused Bashir
was convicted in the said case or not. On
the dictation of the said witness, the report
of the incident was written by Murtaza
Ali in the village in his drawing room
(Baitakh). He proved the written report as
Ext. Ka-1 which he submitted at the
police station. Munnauar, Alla Sher etc.
also went along with him to the police
station. At the time of writing of the
report of the incident, he had kept the
dead body of the deceased out side of the
drawing room. The Station Officer had
arrived and prepared the inquest report
and other police papers. At that time, the
dead body of the deceased was lying near
the Rahat of Niwazi.

10. In his cross examination, the
witness has stated that in the case in
which accused Bashir was arrested with a
482 INDIAN LAW REPORTS ALLAHABAD SERIES
gun his brother Ali Mohammad was a
witness and he is not aware of the fact
whether his brother had deposed in the
said case or not. He admitted that Sheru
and Liyaqat were real brothers. The sister
of accused Afsar was married to Sheru
and his own sister was married to Liyaqat
but he denied that there had been any
quarrel or dispute between the wives of
Sheru and Liyaqat nor any quarrel
between Liyaqat and Sheru. He also
denied any dispute with accused Bashir
on account of the boundary of fields
belonging to him and Bashir. However, he
admitted that Manohar had killed his
brother Alimulla about 4 or 5 years prior
to the present incident. He was not aware
of the fact whether Jauhari Kisan of his
village was killed in an encounter by the
police and had denied that his brother Ali
Mohammad, Mukut and Babu Khan were
also present at the time of encounter along
with the police. Though he admitted the
killings of Mukut, Ali Mulla and Babu
Khan but denied that they were killed by
the gang of Jauhari Kisan as vendetta. He
also
denied
that
his
brother
Ali
Mohammad and his nephew Riyasat and
Kallu were accused for murdering one
Ram Sanehi. However, he admitted that
his sister's husband Liyaqat was an
accused in a dacoity committed in the
house of one Parasram. He further shows
his ignorance about the fact that the
deceased Ali Mohammad was a police
witness in several cases. He stated that the
accused belong to a gang of Manohar and
they were in his gang for the last 6-7
years. The Investigating Officer has
recorded his statement under section 161
Cr.P.C. in which he had told him that
Manohar had conspired the murder of the
deceased. The place of occurrence is
about one mile from the village. There is
no abadi between the village and the place
of occurrence. Village Pankhiya Nagala is
about one and half kms. from the place of
occurrence and in between there is Abadi
of Shekhpur which is at a distance of one
km. from the place of occurrence and
except the same there is no Abadi.
Towards the North of place of occurrence
till river Ganga, there is no Abadi.
Towards North and South there is Chak of
Niwazi in between there is way. In the
Southern side of the Chak of Niwazi there
is Chak of Ali Mohammad. The Chak of
Ali Mohammad is about 50 paces from
the place of occurrence where is his Rahat
and there is no Madhhaiya and according
to the information of the witness no one
stays at the field for keeping watch. The
trees at Pankhiya Nagla were not cut
down on the said date. He stated that
earlier it was wrongly stated by him that
they were returning after cutting the trees
for which he cannot tell the reason. He
denied the suggestion that in order to
establish his presence at the place of
occurrence, he has deposed about the
cutting of trees. He wrongly stated that at
the time of incident, the crops of wheat
was half ripe and it was at waist height.
He had seen the accused coming out from
the field of Newazi and in the said field
there was no crop of peas and barley but
there was wheat. At the Southern side of
the field there was crop of Barley and
somewhere some peas were also there.
The deceased was murdered at the
Southern side of the said field. When he
saw the accused for the first time in the
field, they were at a distance of 20 paces
inside the field. They were coming
through the way and the accused came out
from the field and on the way they fired at
that time the witness was at a distance of
50 paces towards West. The deceased Ali
Mohammad was at a distance of 2-3 paces
towards North of the accused when they
4 All. Bashir & Anr. Vs. State of U.P.
483
had fired. The deceased Ali Mohammad
was at Dadhe. When the fire was shot, the
deceased Ali Mohammad was facing
towards East. At the beginning, one shot
was fired at Ali Mohammad and he
denied that two shots were fired in the
beginning and thereafter several shots
were fired. He stated that initially, he has
stated in his statement that one shot was
fired, was because of his weak memory
and it is quite possible that two fires could
have been shot and he had heard only one
of them. He denied that the accused have
shot the deceased from front. He had not
given
any
such
statement
to
the
Investigating Officer. The first shot which
was fired was hit at the shoulder of the
deceased and thereafter within a minute
several shots were fired. At that time, Ali
Mohammad step ahead towards the
Northern field of Newazi. He had entered
in the field upto 15-20 paces. The accused
also chased him and entered into the field
and when first fire was shot at him his
face was towards East and when second
fire was shot his face was towards East
and the accused took him towards South.
He cannot tell where the deceased
received injuries of three shots fired at
him. After receiving the injuries, he could
not fled away. When the three fires were
shot then Kallu ran in another field in the
West. The deceased had fallen within 1520-25 paces inside the field. The dead
body of the deceased was brought to the
house of the witness from the place of
occurrence after Sun set. The report of the
incident was got written by him at his
house prior to bringing the dead body. He
denied the suggestion that the report was
lodged after the dead body of the
deceased was brought to the house. He
denied at at the time of lodging the report,
the dead body was in front of drawing
room and he had wrongly given the said
statement. He denied the suggestion that
after the arrival of the Station Officer, the
report was lodged with his consultation.
He further denied the suggestion that he
was not present at the place of occurrence
and also denied that because of enmity the
name of accused were falsely implicated
after consultation with the police.

11. P.W. 2 Kallu in his deposition
before the trial court though has supported
the prosecution case but has deposed
differently to that of P.W. 1. He has stated
that he and Ali Mohammad were
returning to village Iklahra from Pakhiya
Nagla where they had gone to cut
Shisham trees when the occurrence took
place in between the fields of Niwazi near
the well and the Rahat. He stated that Ali
Mohammd was ahead of him at a distance
of 2-4 paces and both the accused came
from behind and fired at Ali Mohammad
which hit him and he turned around and
saw that both of them were carrying
country made pistol and he raised alarm
and ask what was going on then Ali
Mohammad started running and both the
accused chased him. The witness further
stated that he ran for his life and stopped
at a distance of about 50 paces in the field
of one Ali Murad and from there he heard
three more shots. The witness went on to
say that after half an hour when he went
to the place of occurrence, he found Ali
Mohammad lying dead near the well and
Rahat in the field of Newazi. He further
stated that at the time of incident along
with him and Ali Mohammad neither his
brother Neksu nor any other person were
present there.

12. In his cross examination, he has
admitted that on the date of incident, in
village Pankhiya Nagla trees of Shisham
were not cut as they could not get a
484 INDIAN LAW REPORTS ALLAHABAD SERIES
Carpenter. He denied the suggestion that
Rahat of Newazi is out side towards
North and his Rahat is inside the Chak
and the length of the Chak of Newazi
towards the North to South is 100-150
yards and from East to West about 70-80
yards and when the fires were made at Ali
Mohammad, he was at a distance of 20
paces from Rahat. His statement was
recorded by the Investigating Officer and
when the fires
were shot at Ali
Mohammad, the accused were at a
distance of 4-6 paces behind him. The
first shot was fired at Ali Mohammad on
his left shoulder, who on receiving the
injury ran towards the North. The accused
also ran behind him and thereafter the
witness also run away. He did not see
Munshi Singh at the place of occurrence
nor heard his voice and after half an hour
when he reached at the place of
occurrence no one was present there.
When after reaching at the village, the
told about the incident to the villagers
then the villagers reached at the place of
occurrence. The dead body of the
deceased Ali Mohammad was lying at the
place of occurrence. The Station Officer
had arrived at the place of occurrence in
the evening between 4:30 to 5:00 p.m.
and had prepared the inquest report and
other police papers. After sealing, the
dead body was brought in the village in
front of Chaupal of Neksu in a vehicle in
which it was kept lying. The accused were
not there. Murtaza was present there. The
Station Officer was also present there. He
did not see Murtaza writing the report. He
was ignorant of the fact that the Station
Officer had brought Neksu to the police
station or not. He stated that Qaisar is his
son and there was a scuffle between his
son and one Akbar, who is the brother of
accused Afsar in which Akbar and his son
Qaisar received injuries of lathi. His
daughter is married to Noor Hasan, who is
related to accused Afsar. He denied that he
had stopped his daughter from going with
Noor Hasan. He denied that Afsar had
forcibly taken his daughter on account of
which there was some quarrel between him
and accused Afsar. He had purchased field of
Dad Khan and given it to Afsar because of
relationship with him. He had further stated
that he had not given him Rs. 412/- which he
did not return but he denied that because of
which he was annoyed with Afsar. He stated
that there was a scuffle between his son
Nanku and Ahmad son of Kashmir but no
one has received injuries. He stated that he
heard that Jauhari Kisan has been killed in a
police encounter. He also was not aware of
the fact that Mukut, Babu and Ali
Mohammad had helped the police in the said
encounter. Ali Mulla and Mukut have been
murdered and he heard that both them were
murdered by the gang of Mahabira. He was
not aware of the fact whether Jauhari Kisan
was in the gang of Mahabira. Ram Snehi
Baniya of Bhawalpur has also been killed
and no report was lodged against Ali
Mohammad, Riyasat and others. In the
village, dacoity had taken place in the house
of Parshuram in which report was lodged
against Ali Mohammad and Liyaqat or not
he did not remember as the incident had
taken place 15-16 years ago. The brother-inlaw of Afasr, namely, Sheru resides in his
village and he is not aware of the fact
whether there was a quarrel between Liyaqat
and Sheru. He denied that Ali Mohammad
was killed in the evening in his field near
Rahat. He further denied that the information
about the incident was given to him on the
next day and he also denied the suggestion
that he in collusion with Neksu and Munshi
has lodged a false report against the accused.

13. P.W. 3 Ali Murtaza has stated
before the trial court that on 20.3.1985, he
4 All. Bashir & Anr. Vs. State of U.P.
485
on the dictation of Neksu had written a
report (Ex. Ka.-1) and he had written
what was dictated to him by Neksu and
after reading and hearing the same he had
affixed his thumb impression. The written
report was in his hand writing and
signature and he has proved the same as
Ex. Ka. 1.

14. In his cross examination, he has
stated that a report (Ex. Ka-1) was written in
the drawing room of Neksu and when he was
writing the report, the dead body was kept in
front of the drawing room and dead body was
brought before the drawing at 3-3:1/2 in the
evening in his presence. The Station Officer
had come when the dead body was brought.
The report was written at about 7-8 p.m. in the
night and the Station Officer while writing the
report was consulting with the family members
of Neksu. The said witness was declared
hostile by the prosecution.

15. In his cross examination by the
prosecution, he denied that he had written
the report at 2 p.m. in the afternoon. He
further denied that the Neksu had dictated
the
report.
He
further
denied
the
suggestion that in collusion with the
accused persons, he is falsely deposing.

16. P.W. 4 Dr. S.C. Gupta has stated
before the trial court that on 21.3.1984, he
was posted as Medical Officer at District
Hospital Fatehgarh and he was on duty.
He conducted the post mortem of the dead
body of the deceased Ali Mohammad at
3:15
p.m.
which
was
brought
by
Constable No. 607 Soobaram Singh, who
had identified the dead body along with
Constable No. 467 Ramesh Chandra and
following injuries on his person:-

"1. Gun shot wound of entry 21/2 cm.x 2 cm.x stomach cavity deep on
the right side upper part of the stomach
27 cm. above and lateral to the umbilicus
with a number of wound of pellets entry in
an area of 8 cm. x 6 cm around it. The
direction of the wound was from right to
left.

2. Gun shot wound of entry 0.2
cm. x 0.2 cm. skin deep on the back of the
right elbow.

3. Two gun shot wounds of
entry 10 cm. apart from each other on
back of the left fore arm 0.2 cm. x. 0.2 cm
and 1 cm x 0.2 cm. both skin deep.

4. Four gun shot wounds of
entry in an area of 7 cm. x 4 cm. on the
back 1/3rd of the left arm 2 to 4 cm. apart
from each other.

All the wounds were skin
deep.

5. Multiple gun shot wounds of
entry in an area of 28 cm. x 22 cm. on the
upper and middle part of the back, skin to
muscle deep and 0.2 cm. x 0.2 cm. to 1
cm. x 0.2 cm. in measurements. The
direction of the wounds was from back to
front.

6. Gun shot wound of entry 0.7.
cm. x 0.5 cm. x chest cavity deep on the
right side back 3 cm. away and inside
from the shoulder. The direction of the
wound was from back to front and
upward to downward.

7. Lacerated wound 4 cm. x 1
cm. x muscle deep on the back of the
head."

17.
 The
internal
examination
revealed the that the lungs and their
membrane were lacerated at several
places. Heart was empty and heart and its
membrane were lacerated. There was 11/2 litre of liquid mixed with blood in the
chest cavity. The membrane of the
stomach was lacerated and in the
abdominal cavity one litre of liquid mixed
486 INDIAN LAW REPORTS ALLAHABAD SERIES
blood and fecal matter was present. There
was 200 grams of semi digested food in
the stomach and fecal mater in the large
intestines.

18. Liver was also lacerated.

19. In the opinion of the doctor the
death had occurred sometime at 2 p.m. on
20.3.1984 due to excessive bleeding and
shock caused by the ante mortem injuries
detailed earlier.

20. A bullet from the chest cavity 18
pellets embedded in the back and 12
pellets from the abdominal cavity were
found by the doctor and were taken out.
He also took a shirt, a vest and the dhoti,
an underwear and the Angochha from the
dead body. He kept all these articles in
two different sealed bundles and sent to
the
S.S.P.
Fatehgarh
through
the
constable.

21. According to the doctor all the
injuries except injury no. 7 were caused
by some fire arm and injury no. 7 either
by some blunt weapon or by a fall.

22. In his cross-examination, the
said witness has stated that the duration of
death on either side would be from 5-6
hours. The deceased would have taken
food 4-5 hours prior to death. He cannot
tell whether both the rifle and gun were
used to cause injuries to the deceased or
not. He cannot tell about the weapon.

23. P.W. 5 Head Constable Ram
Karan has stated before the trial court that
on 20.3.1984, he was posted as Head
Moharrir in police station Kampil. On the
said date, the informant Neksu had given
a written report which was written by
Murtaza Ali in the police station to him
on the basis of which he prepared the chik
F.I.R in his hand writing and signature
which is on record and proved the same as
Ex. Ka-3. The endorsement of the same
was made in the G.D. No. 26 at 15:45
house on the same day. He has proved the
same in his writing and signature as Ex.
Ka-4. He denied the suggestion that in the
G.D., the time of the report had been
changed by him. He was unaware of the
fact that prior to the present incident any
person by the name of Jauhari Kisan was
killed in a police encounter and he was
not posted there at that time and no such
fact was mentioned in the report and it
was
stated
that
the
deceased
Ali
Mohammad had helped the police in the
encounter of Jauhari.

24. P.W. 6 Sobran Singh has stated that
he was posted as Constable on 20.3.1984 at
police station Kampil and on the said date he
had handed over the dead body of the
deceased
Ali
Mohammad
along
with
Constable Rakesh Chandra Khare in the
evening at about 7:30 p.m. at Fatehgarh
District Hospital for post mortem to the doctor
which was in a sealed condition along with
other police papers and after post mortem, the
clothes which were sealed in a bundle and one
sealed envelope in which pellets were kept
had submitted the same at police station and
till that time, the dead body was in his custody
and he did not allow any persons to see or
touch it.

25. He in his cross-examination has stated
that no one had told him that the deceased had
helped the police in the encounter of Jauhari
Kisan and the Station Officer Narain Jatav was
not the Station Officer at police station Kampil
during his tenure.

26. P.W. 7 Ram Autar Singh has
stated that on 20.3.1984 he was posted as
4 All. Bashir & Anr. Vs. State of U.P.
487
Station Officer of police station Kampil
and in his presence on the said date at
about 15:45 p.m., the informant Neksu
has submitted a written report on the basis
of which a case was registered and the
investigation was entrusted to him. He
had recorded the statement of the
informant at the police station and on
reaching at the place of occurrence he had
taken over the custody of the dead body
of the deceased Ali Mohammad and
conducted the panchayatnama. He got the
panchayatnama of the dead body of the
deceased done by S.I. R.K. Singh.
Thereafter sealed the dead body of the
deceased and sent the same along with
other police papers for post mortem
through Constable Soobran Singh and
Constable Rakesh Chandra Mishra and he
has proved the panchayatnama as Ex. Ka6. Photo nash, challan nash, letter to R.I.
and letter to C.M.O. was prepared by S.I.
R.K. Singh before him in his hand writing
and signature at the place of occurrence.
He has proved the same as Exts. Ka-7 to
11. He has also taken the shoes of the
deceased, blood stained and plain earth
and a belt of cartridges and got the
recovery memo of the same prepared by
S.I. R.K. Singh in the presence of the
witnesses and got their thumb impression
and proved the same as Exts. Ka-12, 13
and 14. At the pointing out of the
informant, site plan of the place of
occurrence was prepared by him which
was marked as Ex. Ka-15. He made a
search of the accused but they could not
be
apprehended.
He
recorded
the
statements of Kallu, Munshi Singh and
other witnesses of recovery on 30.3.1984.
He got the place of occurrence inspected
by the Circle Officer. The accused
surrendered on 30.3.1984 and he recorded
their statements in jail on 4.4.1984. After
completing
the
investigation,
he
submitted charge-sheet on 5.5.1984 in his
hand writing and signature which is
marked as Ex. Ka-16. The criminal
antecedents of accused Bashir was also
enclosed by him along with the chargesheet in his hand writing and signature.
The accused Bashir was a history sheeter
and his history sheet was opened at police
station Kampil and beside the same there
were five other criminal cases against
him. The blood stained and plain earth
Exts. 1 and 2 was proved by him. The
clothes of the deceased such as Baniyan,
dhoti, Kameez, Aungauchha and Rumal
were marked as Exts. 5 to 9. All the
articles which were kept in a sealed cover
were opened in the Court. He reached the
place of occurrence on 20.3.1984 at about
5 p.m. in the evening and remained there
at about 8 p.m. and at 7:30 p.m. he sent
the dead body of the deceased for post
mortem through Constables. Thereafter he
did not see the dead body. He denied the
suggestion that he had gone to see the
dead body in the drawing room of the
informant Neksu. He had not sent the
dead body of the deceased at the drawing
room of Neksu nor has given any such
instruction to the Constable. The report of
the incident was registered in his presence
at 3:45 p.m. and after registration of the
report he remained at police station for
about 45 minutes and thereafter he left for
Eklahara
by
Jeep.
He
denied
the
suggestion that Neksu had written the
report before him. He submitted the
written report at the police station. He
denied the suggestion that without the
registration
of
the
report,
he
had
proceeded to village Eklahara. He further
denied the suggestion that when he
reached at village Eklahra, he firstly went
to the house of Neksu and he found the
dead body of the deceased in front of the
drawing room of his house. He further
488 INDIAN LAW REPORTS ALLAHABAD SERIES
denied the suggestion that he had dictated
the report to Neksu. He is not aware of the
police encounter of Jauhari Kisan. He is
also not aware that the said encounter of
Jauhari Kisan was done by S.O. Narain
Singh in the way of Eklahara to Kampil.
He did not know that when Jauhari Kisan
was killed in the police encounter,
deceased Ali Mohammad, Babu Khan and
Mukut were also accompanying the police
party. He denied the suggestion that Ali
Mohammad could not be traced out,
hence
his
brother
Ali
Mulla
was
murdered.

27. In his cross-examination, he
admitted that Ram Sanehi Baniya of
Bhawalpur was murdered. It is incorrect
the deceased Ali Mohammad and Riyasat
were named accused in the said case. He
denied that charge-sheet has not been
submitted against Ali Mohammad though
he was named as accused in the said case.
He stated that during his tenure no dacoity
had taken place in village Iklahara in
which the deceased Ali Mohammad and
his brother-in-law Liyaqat of Bahawalpur
were accused. He also does not know that
the brother-in-law of Neksu and brotherin-law of accused Afsar were real
brothers. He is not aware of the fact that
the daughter of P.W. 2 Kallu is married to
the brother of accused Afsar, namely,
Noor Hasan. He was not aware of the fact
that Ali Mohammad was also historysheeter or not and he did not try to gather
such an information and Ali Mohammad
was amongst good person. The witness
had met him when he had come in a
meeting at police station. He had not
come at police station as an accused at
any point of time in his tenure.

28. The trial court after examining
the prosecution evidence and the defence
version has concluded that it was the
appellants along with co-accused, who
have murdered the deceased and has
convicted and sentenced they for the
offence under section 302 I.P.C. for life
imprisonment, hence the present appeal
by the appellants.

29. Heard Sri Ambrish Kumar
Srivastava, learned counsel for the
appellants, Sri Jai Narain, learned A.G.A.
for the State and perused the record as
well as impugned judgment and order of
the trial court.

30. Learned counsel for the
appellants submits that the deceased Ali
Mohammad was a pocket witness of the
police and he along with Mukut had
assisted the police in the encounter of one
Jauhari Kisan, who was done to death in
the said police encounter. As a revenge,
Mukut, Babu and the brother of the
deceased-Ali Mohammad, namely, Ali
Mulla were murdered by the gang of
Mahabira as Jauhari Kisan belonged to
the said gang and it appears that the
deceased was also shot dead by Mahabira
gang and the appellant has been falsely
implicated in the present case due to
inimical relationship with P.W. 2. He
argued that the daughter of P.W. 2 was
married to Noor Hasan, who belonged to
the family of appellant Afsar. He has
pointed that as per the evidence of P.W. 2
though he has denied that Afsar had
forcibly taken his daughter due to which
there was a dispute between them on
account of which he has implicated the
appellant. He further pointed out that
there appears to be some animosity of
P.W. 2 with appellant Afsar as P.W. 2 had
purchased an agricultural land of one Dad
Khan and given it to him and Afsar had
not given Rs. 412 to him because of
4 All. Bashir & Anr. Vs. State of U.P.
489
which he was annoyed with him and there
was ill will between the parties and the
false implication of the appellant Afsar by
P.W. 2 cannot be ruled out. He argued
that P.W. 1, who is the real brother of the
deceased was though stated to have
accompanied the deceased along with
P.W. 2 Kallu at the time of incident but
his testimony has been discarded by the
trial court as his presence at the place of
occurrence was found to be doubtful and
the conviction of the appellant is solely
based on the evidence of P.W. 2, who
claims to be the eye witness of the
occurrence. He submitted that the place of
occurrence also appears to be doubtful as
it appears from the evidence of P.W. 7
Ram
Autar
Singh-the
Investigating
Officer as it was stated by him that the
place of occurrence is an interior place
where the chak of the deceased Ali
Mohammad
was
situated
and
the
deceased was done to death in some other
manner and not as stated by the
prosecution by some unknown miscreants
and at the time of his death belt of
cartridges were also found which shows
that the deceased was done to death by
firing shot on him at his chak which was
an interior and lonely place. It was
submitted by him that the testimony of
P.W. 2 is also not reliable as from his
evidence also it is evident that he was
following the deceased, who was ahead of
him and when the deceased was shot it is
stated by him that out of two accused
including the appellant Bashir and Afsar
one of them, who fired at the deceased
which hit him and when he turned around
then he saw that two accused were having
country made pistol in their hands and
because of fear he ran for his life and was
standing at a distance of 50 paces in the
field of Ali Murad and heard three more
shots. He reached the place of occurrence
after half an hour which goes to show that
the said witness actually did not see the
incident and he has also denied that P.W.
1 was present along with him and the
deceased at the place of occurrence.

31. It was further pointed out that
from the evidence of P.W. 6 it is quite
evident that the deceased, who was shot
dead at an interior place situated at his
chak and when information was received
by P.W. 1 and 2 and others villagers they
reached at the place of occurrence and
informed
the
police,
who
arrived
thereafter. He submitted that so far as
appellant is concerned, he has no criminal
antecedent whereas co-accused Bashir
was a man of criminal antecedents and he
had also strong motive to commit the
murder of the deceased as he was caught
by the police with a country made pistol
and he had an impression that because of
the deceased Ali Mohammad being a
pocket witness of the police, had got him
arrested
by
the
police,
hence
he
committed the murder of the deceased and
no
recovery
of
any
weapon
or
incriminating article was made either
from the possession of the appellant or on
his pointing out, hence conviction and
sentence of the appellant by the trial court
is against the evidence on record and
liable to be set aside and appellant be
acquitted.

32. On the other hand, learned
A.G.A. opposed the argument of learned
counsel for the appellant and stated that it
is true that the trial court, only on the
basis of testimony of P.W. 2, has
convicted
the
appellant
as
it
has
disbelieved the presence of P.W. 1 at the
place of occurrence. He argued that P.W.
2 Kallu was accompanying the deceased
as it appears from his evidence and the
490 INDIAN LAW REPORTS ALLAHABAD SERIES
ocular testimony fully corroborates the
post mortem of the deceased, who died on
account of fire arm injuries on his person.
It was submitted by him that the
suggestion which was given from the side
of the defence that the deceased was a
pocket witness of the police and he helped
the police in the encounter of one Jauhari
Kisan along with Mukut, Babu and Ali
Mulla, who have been murdered and they
were murdered by the gang of Mahabira
as Jauhari Kisan belonged to the gang of
Mahabira, has been denied by the P.W. 2
as he was not aware of the said fact but he
could not dispute the fact that the
deceased used to help the police in the
encounters of dacoits of the area and it
appears that Mahabira gang was operating
in the area as the same was dacoity
affected area. Thus, he refuted the
contention of the learned counsel for the
appellant and argued that no interference
is required by this Court in the judgment
and order of the trial court.

33. We have given thoughtful
consideration to the submissions of
learned counsel for the parties and
perused the impugned judgment and order
as well as lower court record.

34. From the prosecution case it is
apparent that the deceased died on
account of fire arm injuries received on
his person as he has received as many as
six gun shot injuries on his person
whereas one lacerated wound on the back
of the head and in the opinion of the
doctor, the cause of death is shock and
hemorrhage as a result of ante mortem
injuries. The F.I.R. of the case was lodged
by P.W. 1 Neksu and the scribe of the
same was Mohammad Murtaza Ali which
was registered on the basis of written
report submitted by P.W. 1 at the police
station on 20.3.1984 p.m. with respect to
the incident which had taken place on the
same day at 2 p.m. in the afternoon. P.W.
1 in his evidence has stated before the
trial court that he was accompanying the
deceased and eye witness Kallu at the
time of incident and has seen the incident
in which the two accused including the
appellant have murdered the deceased by
country made pistols. He further stated
that the deceased was also assaulted by
the said accused persons by lathi, who
were carrying the same.