# Ejaz Haider v. State Of U.P

- **Citation:** (2016) 5 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ejaz-haider-v-state-of-u-p-43912
- **Pages:** 12

## Headnote

Conviction Under Sections 302/34 IPC Set Aside - Eye Witnesses' Testimony Contradictory and
Improvement Over Section 161 Cr.P.C. Statements - First Informant Turned Hostile - Appellants
(real brothers of complainant Zille Haider) convicted by Special/Additional Sessions Judge, Muzaffarnagar in
Sessions Trial No. 556 of 2000, arising out of Case Crime No. 29 of 2000 under Section 302 IPC, P.S. Bhopa,
District Muzaffarnagar, for allegedly shooting and killing their mother Smt. Shakila Begum inside the house at
about 2.00 a.m. on 26.02.2000; sole eyewitnesses PW-2 Akmal Ali and PW-3 Km. Shadab (son and daughter
of Gulzar, brother of complainant and appellants) materially improved their court testimony by stating both
assailants possessed country-made pistols, whereas Investigating Officer PW-6 P.K. Singh categorically
testified that in their statements under Section 161 Cr.P.C. witnesses had only stated that Haseen Haider
possessed country-made pistol, and further that not a single witness stated he saw the incident; witnesses
described assailants as being face to face with deceased when shot was fired but simultaneously stated that
Haseen Haider fired when deceased had covered her face with bed-sheet - irreconcilable contradiction; first
informant PW-5 Zille Haider turned hostile, denied complicity of appellants, stated that contents of FIR were
written on dictation of Darogaji and that FIR was lodged only after the dead body was sealed - findings of
trial court held to be primarily based on assumptions, conjectures and surmises; conviction set aside. (Paras
1-14)
706 INDIAN LAW REPORTS ALLAHABAD SERIES
No Blackening or Tattooing on Entry Wound Despite Alleged Point-Blank Shooting - Absence of
Pellet/Bullet/Tikali Inside Room Despite Firearm Exit Wound - Blood-Stained Soil Collected
from Under Cot Held Manufactured Evidence - Post-mortem examination report (Exhibit Ka-13)
disclosed no blackening or tattooing on gun-shot entry wound (injury no. 1 on neck of deceased) - contrary
to prosecution version that fire was shot at almost point-blank range, as presence of blackening and tattooing
is the normal concomitant of close-range firearm discharge; Investigating Officer PW-6 testified that he found
no pellet, bullet or 'tikali' from inside the room and no marks on the wall - when there is a firearm exit
wound and occurrence is inside a room, recovery of some projectile from inside the room is a necessary
consequence; non-recovery creates irresistible doubt regarding the very manner and style of occurrence;
further, only blood-stained pillow cover (Exhibit Ka-11) was proved - no testimony of blood falling on floor
under cot of deceased - yet Investigating Officer collected blood-stained soil from under the cot, which is
under the circumstances rendered wholly improbable and amounts to manufactured evidence to give extra
thrust to the prosecution case. (Paras 16-19)

Two Ante-Mortem Injuries Unexplained by Prosecution - Trial Court's Assumption Regarding
Their Cause Held Wholly Perverse - Motive Imputed Unconvincing - Failure to Prove Alibi Does
Not Prove Guilt of Accused - Post-mortem report disclosed two unexplained ante-mortem injuries -
lacerated wound 3.5 cm x 1 cm x muscle deep on left side of chin (injury no. 3) and abrasion 2.5 cm x 1 cm
on back of right forearm middle part (injury no. 4); prosecution led no explanation whatsoever for these
injuries; trial court, without any supporting material, conjectured and assumed that said injuries might have
been caused during course of conveying deceased to hospital by car - finding held wholly perverse and
erroneous; trial court cannot fill lacunae in prosecution case by resorting to its own whims and imagination;
further, motive imputed in the FIR - that appellants killed their mother for being given lesser share in land -
held unconvincing, as property in question was exclusively owned by father of appellants; deceased had no
ownership right ov

## Text

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5 All. Ejaz Haider Vs State Of U.P.

705
31. In view of this prayer for bail is turned down as per above observations already made.
State as well as Union of India should take final decision on the the application so made on behalf
of petitioner in Form-1 within the time frame already provided for.

32. With the above observations and direction present writ petition is disposed of.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 6833 Of 2007
&
Criminal Appeal No.- 7124 Of 2007

Ejaz Haider ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Sri V.M. Zaidi, Sri Atul Sisodia, Sri Mohd. Aslam Ansari, Sri Rajeev Sisodiya

Counsel for the Respondent:
Govt. Advocate
.................................

Conviction Under Sections 302/34 IPC Set Aside - Eye Witnesses' Testimony Contradictory and
Improvement Over Section 161 Cr.P.C. Statements - First Informant Turned Hostile - Appellants
(real brothers of complainant Zille Haider) convicted by Special/Additional Sessions Judge, Muzaffarnagar in
Sessions Trial No. 556 of 2000, arising out of Case Crime No. 29 of 2000 under Section 302 IPC, P.S. Bhopa,
District Muzaffarnagar, for allegedly shooting and killing their mother Smt. Shakila Begum inside the house at
about 2.00 a.m. on 26.02.2000; sole eyewitnesses PW-2 Akmal Ali and PW-3 Km. Shadab (son and daughter
of Gulzar, brother of complainant and appellants) materially improved their court testimony by stating both
assailants possessed country-made pistols, whereas Investigating Officer PW-6 P.K. Singh categorically
testified that in their statements under Section 161 Cr.P.C. witnesses had only stated that Haseen Haider
possessed country-made pistol, and further that not a single witness stated he saw the incident; witnesses
described assailants as being face to face with deceased when shot was fired but simultaneously stated that
Haseen Haider fired when deceased had covered her face with bed-sheet - irreconcilable contradiction; first
informant PW-5 Zille Haider turned hostile, denied complicity of appellants, stated that contents of FIR were
written on dictation of Darogaji and that FIR was lodged only after the dead body was sealed - findings of
trial court held to be primarily based on assumptions, conjectures and surmises; conviction set aside. (Paras
1-14)
706 INDIAN LAW REPORTS ALLAHABAD SERIES
No Blackening or Tattooing on Entry Wound Despite Alleged Point-Blank Shooting - Absence of
Pellet/Bullet/Tikali Inside Room Despite Firearm Exit Wound - Blood-Stained Soil Collected
from Under Cot Held Manufactured Evidence - Post-mortem examination report (Exhibit Ka-13)
disclosed no blackening or tattooing on gun-shot entry wound (injury no. 1 on neck of deceased) - contrary
to prosecution version that fire was shot at almost point-blank range, as presence of blackening and tattooing
is the normal concomitant of close-range firearm discharge; Investigating Officer PW-6 testified that he found
no pellet, bullet or 'tikali' from inside the room and no marks on the wall - when there is a firearm exit
wound and occurrence is inside a room, recovery of some projectile from inside the room is a necessary
consequence; non-recovery creates irresistible doubt regarding the very manner and style of occurrence;
further, only blood-stained pillow cover (Exhibit Ka-11) was proved - no testimony of blood falling on floor
under cot of deceased - yet Investigating Officer collected blood-stained soil from under the cot, which is
under the circumstances rendered wholly improbable and amounts to manufactured evidence to give extra
thrust to the prosecution case. (Paras 16-19)

Two Ante-Mortem Injuries Unexplained by Prosecution - Trial Court's Assumption Regarding
Their Cause Held Wholly Perverse - Motive Imputed Unconvincing - Failure to Prove Alibi Does
Not Prove Guilt of Accused - Post-mortem report disclosed two unexplained ante-mortem injuries -
lacerated wound 3.5 cm x 1 cm x muscle deep on left side of chin (injury no. 3) and abrasion 2.5 cm x 1 cm
on back of right forearm middle part (injury no. 4); prosecution led no explanation whatsoever for these
injuries; trial court, without any supporting material, conjectured and assumed that said injuries might have
been caused during course of conveying deceased to hospital by car - finding held wholly perverse and
erroneous; trial court cannot fill lacunae in prosecution case by resorting to its own whims and imagination;
further, motive imputed in the FIR - that appellants killed their mother for being given lesser share in land -
held unconvincing, as property in question was exclusively owned by father of appellants; deceased had no
ownership right over nor any role in distribution of the property; grandfather who owned the property was
sleeping at place of occurrence yet was not harmed; Held, failure of appellants to prove plea of alibi does not
by itself prove their culpability - guilt of accused must be proved beyond reasonable doubt solely by
prosecution evidence and relevant circumstances. (Paras 20-24)

Appeals Allowed - Appellants Acquitted

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. We have heard at length Sri Rajul Bhargawa, learned Senior Counsel assisted by Sushri
Zia Naz Zaidi, Advocate who extended argument on behalf of appellants while Sri A.N. Mulla,
learned AGA extended argument on behalf of the State and perused the record.

2. Since both the appeals arise out of the same judgment and order dated 28.09.2007 passed
by Special/Additional Sessions Judge, Muzaffarnagar, therefore, the same are being decided by a
common judgment.

3. Both the aforesaid appeals have been preferred by the above named appellants Ejaz
Haider and Haseen Haider against the judgment and order dated 28.09.2007 passed by
Special/Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 556 of 2000 arising out of
Case Crime No. 29 of 2000 under Section 302 IPC, Police Station Bhopa, District Muzaffarnagar.
By the aforesaid judgment, both the appellants have been convicted under Section 302 read with
Section 34 IPC and have been sentenced with imprisonment for life and a fine of Rs. 10,000/- each,
5 All. Ejaz Haider Vs State Of U.P.

707
in case of default, the concerned convict/appellant will have to undergo two years' additional
rigorous imprisonment.

4. Factual portrayal of this case as emanates from record appears to be; that the appellants
are the real brothers of the complainant Zille Haider and the appellants have allegedly killed their
real mother Smt. Shakila Begum. It comes out that the first information report (Exhibit Ka-5) was
lodged on the basis of the written report (Exhibit Ka-7) by the complainant Zille Haider son of
Mohammad Hashim of village Bilda, P.S. Bhopa, on 26.02.2000 at 8.15 a.m. regarding some
incident which took place in the night intervening of 25/26.02.2000 at 2.00 a.m. with following
description:

5. That the informant's (Zille Haider) mother Smt. Shakila Begum, informant's nephew
Akmal Ali, niece Shadab daughter of Gulzar Haider and the complainant were sleeping in the
house in the night of 25/26.2.2000. Complainant's brothers Haseen Haider and Ejaz Haider had
grudge against the complainant on account of partition of the property. Today finding it opportune,
the two appellants entered into the house of the complainant and asked their mother (deceased
Shakila Begum) that they have been given lesser share in the property and while saying so, Haseen
Haider fired at his mother Smt. Shakila Begum and escaped from the scene. The complainant took
his mother in injured condition to the Government Hospital by car where she succumbed to her
injuries. It was specified in the first information report that the dead body was lying in the car in
Government Hospital, Bhopa, report be lodged and appropriate action be taken. Contents of this
written report were entered into the concerned Chik FIR (Exhibit Ka-5) at Crime No. 29 of 2000,
P.S. Bhopa, District Muzaffarnagar at 8.15 a.m. on 26.02.2000. Thereafter, the investigation
followed.

6. Record reflects that Constable Subhash Chandra P.W.4 received written information
regarding death of Smt. Shakila Begum on 26.02.2000 at 6.05 a.m. given by Mohd. Khalid, Ward
Boy of Primary Health Centre, Bhopa. This written information was entered in the concerned G.D.
and has been proved by Constable Subhash Chandra PW-4 as Exhibit Ka-3. Relevant entry
regarding the same was made in the concerned G.D. which G.D. has been proved by PW-4 as
Exhibit Ka-4 and thereafter inquest report of dead body of Smt. Shakila Begum was prepared by
Raj Pal Singh, Sub Inspector, PW-7. After preparation of inquest report, relevant papers were also
prepared for sending the dead body for post mortem examination. Post mortem examination on the
dead body of Smt. Shakila Begum was conducted on 26.02.2000 at 4:45 p.m. wherein following
four ante-mortem injuries were found on the body of the deceased:

1. Gun shot wound of entry 2.5 cm x 1 cm x muscle deep on left side back of neck,
4 cm above the outer end of left clavicle. Margins inverted and lacerated, no blackening, tattooing
and charring.

2. Gun shot wound of exit 3.5 cm x 2 cm, corresponding to injury no. 1 gun wound
of entry. Margins everted lacerated. Carotid artery, soft muscle & trachea is badly lacerated.
708 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Lacerated wound 3.5 cm x 1 cm x muscle deep on left side of chin.

4. Abrasion 2.5 cm x 1 cm on back of right forearm middle part.

7. In the opinion of the doctor, the cause of death was due to shock and haemorrhage due to
ante-mortem injuries. Post mortem examination report is Exhibit Ka-13 on record.

8. The Investigating Officer also recorded the statements of a number of witnesses under
Section 161 Cr.P.C. and prepared the memo of blood stained pillow cover which is Exhibit Ka-11.
The Investigating Officer also took sample of simple and blood stained soil from the spot and
prepared memo of the same which is Exhibit Ka-12. The Investigating Officer also prepared the
site plan which is Exhibit Ka-6 whereas it should be numbered as Exhibit Ka-6A, for the reason
that relevant G.D. entries regarding lodging of criminal case at Case Crime No. 29 of 2000 under
Section 302 IPC on 26.02.2000 at police station Bhopa has already been proved as Exhibit Ka-6.
The Investigating Officer after completing the investigation filed charge sheet Exhibit Ka-8 against
the appellants.

9. Thereafter, the case was committed to the court of Session from where it was made over
for trial to the court of Special/Additional Sessions Judge, Muzaffarnagar.

10. As a sequel to it, the appellants were heard on the point of charge and prima-facie
ground was found existing for framing of charge under Section 302 read with Section 34 IPC. The
charge was read over and explained in Hindi to the appellants who denied charges and opted for
trial.

11. In order to prove its case, the prosecution produced in all eight witnesses. Besides, the
trial court also examined CW-1 Akash Sharma and CW-2 Dr. Rameshwar Dayal. A brief reference
of prosecution witnesses may be noticed here. Ali Abbas P.W.1 is witness of fact for preparation of
two memos, one is blood stained pillow cover and the other is simple soil and blood stained soil
from the spot. He has turned hostile and did not support prosecution story regarding preparation of
above two memos/ Fard. Akmal Ali P.W.2 claims himself to be an eye witness of the incident. Km.
Shadab P.W.3 is daughter of Gulzar Haider. She is sister of P.W.2 Akmal. She has also claimed
herself to be eye witness of the incident like PW-2 Akmal Ali. Constable Subhash Chand P.W.4
has proved fact regarding receiving of the written information at Police Station Bhopa on
26.02.2000 at 6.05 a.m. from one ward boy Mohd. Khalid of P.H.C., Bhopa and has proved this
written information as Exhibit Ka-3. He also proved relevant entries made in the concerned G.D.,
as Exhibit Ka-4. Besides, he has also proved the concerned chik FIR Exhibit Ka-5 and the
concerned G.D. whereby the case was registered at Crime No.-29/2000 under Section 302 IPC P.S.
Bhopa as Exhibit Ka-6. Zille Haider who happens to be son of the deceased Smt. Shakila Begum
has been examined as PW-5. He has turned hostile and has not supported prosecution case. He has
gone to the extent of stating that the FIR was lodged at the instance of Daroga Ji. At that stage, he
has been cross examined by the D.G.C. (Crl).
5 All. Ejaz Haider Vs State Of U.P.

709
12. P.W.6 Sri P.K. Singh, who is the Investigating Officer of this case has proved
registration of the case at Case Crime No.29 of 2000, under Section 302 IPC against the appellants
at Police Station Bhopa. He has also stated that on the basis of written information received from
PHC Bhopa regarding death of Smt. Shkila Begum, steps were taken for preparing inquest report
and thereafter spot inspection was also made. He has also proved spot inspection Exhibit Ka-6A
and preparation of several memos. After completing investigation, he filed the charge-sheet,
Exhibit Ka-8 against the appellants.

13. P.W.7 is Sub Inspector Rajpal Singh, who conducted the inquest report of deceased
Shakila Begum on 26.2.2000 and has detailed various steps which he took in completing the other
formalities for sending the dead body for post-motem examination to the mortuary. P.W.8 is Dr.
Veer Sal Singh Medical Officer, District Hospital, Sitapur. He has conducted postmortem
examination of the dead body of deceased Shakila Begum on 26.2.2000 and has proved the same as
Exhibit Ka-13.

14. Sri Akash Sharma, Deputy Jailor, District Jail, Muzaffarnagar has been examined as
C.W.1. He has proved different identifying marks existing on their physique (Appellants Ejaz
Haider and Haseen Haider) as per the relevant entries made in the concerned register kept in jail in
connection with this case (Crime No.29 of 2000) and has proved their identification marks as
Exhibit Kha-1.

15. Dr. Rameshwer Dayal, Deputy C.M.O., Ghaziabad has been examined as C.W.2. He
has stated that he was posted as Medical Officer, District Jail Muzaffarnagar, in August 2000. He
has also proved like C.W.1 identification marks existing on the person of appellants as noted in
Exhibit Kha-1 and has proved his report dated 24.8.2000 as Exhibit Kha-2.

16. Thereafter the evidence for the prosecution was closed and the statement of both the
accused were recorded under Section 313 Cr.P.C., wherein both the appellants have stated that they
were in jail on the day of occurrence in the fateful night (26.2.2000). The appellants produced Sunil
Kumar as D.W.1. He has elaborated about the physique identification marks (Exhibit Kha-1 and
Kha-2) found on the person of both the appellants.

17. Learned trial court after appraisa l of the evidence on record and considering the
submissions so made before it, passed the aforesaid judgment and order of conviction dated
28.9.2007 and sentenced the appellants to imprisonment for life with a fine of Rs.10,000/- each, in
case of default, they were directed to undergo two years' additional rigorous imprisonment.

18. Consequently, this appeal.

19. It has been vehemently contended by Shri Rajul Bhargava, learned Senior Counsel
appearing on behalf of the appellants that the circumstances are self speaking and explanatory that
the incident was not witnessed by any one. The statement of the two eye-witnesses, particularly,
P.W. 2 and P.W. 3 Akmal and Km. Shadab respectively, regarding the occurrence is wholly
710 INDIAN LAW REPORTS ALLAHABAD SERIES
improved one, tutored and is on the face in material contrast to the manner and occurrence of the
alleged incident, and their statement recorded under Section 161 Cr.P.C. Both of them have
categorically stated that both assailants Ejaz Haider and Haseen Haidar were possessing guns in
their hands, but no such statement was ever recorded under section 161 Cr.P.C. Similarly, both of
them have not stated in their statement under Section 161 Cr.P.C. about witnessing the incident and
on these points, the Investigating Officer P.K. Singh has not supported them on these two material
points. More so, the incident allegedly took place inside the room and admittedly there is one gun
shot entry would corresponding to one exit wound but no 'tikali' or bullet or pellet, has been
recovered from inside the room. This particular aspect itself establishes that the so called witnesses
have not seen any such incident but they are tutored witness.

20. Thus, there is doubt on the veracity of the prosecution version and particularly the
manner of the incident that it was caused by the appellants. Not only this, the place of occurrence is
inside the room and it has nowhere come in the testimony of the two eye-witnesses (P.W.2 and
P.W.3) nor in the examination in chief of the Investigating Officer P.K. Singh P.W. 6 that he found
blood under the cot on which deceased Shakila Begum was shot at. Although, it has come on
record that the blood oozed out on the pillow cover, but there is no whisper and the entire
prosecution case is woefully silent about the fact of blood falling on the ground/floor. Further, there
is no description about the nature of the floor of the room whether it was cemented or noncemented one. More so, the Investigating Officer, of his own, in order to create complicity of the
appellants in this case, has deliberately manufactured evidence regarding the place of occurrence
by collecting blood stained soil from under the cot of the deceased which, by no stretch of
imagination, can stand to reason of an ordinary prudent man. Again, the post morten examination
report indicates about 4 ante mortem injuries on the body of the deceased and injury no. 3 and 4
have been specified to be lacerated wound and abrasion on chin and right fore arm respectively.
These two ante-mortem injuries have not been properly explained by the prosecution.

21. Once the propounded theory of gun shot/fire is accepted, then injuries no. 3 and 4 rules
out the theory of single fire being caused at the time of the incident. In fact, the incident was not
witnessed by the witnesses. They have every motive to falsely implicate the appellants for the
reason that father of the P.W. 2 Akmal and PW-3 Kumari Shadab is on inimical term with the
appellants and case/report had also been lodged previously by the father of the P.W. 2 and 3 against
the appellants. Therefore, they had every reason and concrete purpose to somehow falsely implicate
the appellants in this case in order to grab the property. More so, in respect of the very cause and
motive assigned for committing the crime of giving lesser land to the appellants as their shares, it is
admitted to the prosecution that property in question was exclusively owned by the father of the
appellants and the deceased Shakila Begum was nowhere in the scene as owner of the property and
has no role to play regarding share of the appellants in the property, therefore, murder of Shakila
Begum has got no relevance with the claim over the property of the share of appellants. Had it been
so, then the appellants would have, in all eventuality, killed their father who owned the property or
would have caused any other harm to him, but, in no case they could have killed their mother, as
that would become futile and foolish exercise for the appellants.
5 All. Ejaz Haider Vs State Of U.P.

711
22. Learned counsel further added that trial court has embarked on fantasy and imagination
and has itself formed opinion without any basis that the ante mortem injuries no. 3 and 4 found on
the body of the deceased might have been caused at the time and during course when the deceased
was being taken away to the hospital by car. This finding is not supported by any piece of evidence,
whatsoever. Therefore, the finding so recorded is on the face perverse and erroneous and the same
is liable to be set aside because this assumption by the trial court has not been supported by the
testimony of the witnesses of fact and has also not been gathered from the proved circumstances of
this case. Plea of alibi was rightly taken and it was proved under circumstances but the trial court
itself entered into roving inquiry by adopting false notion of comparison in identifying marks.

23. Shri A.N. Mulla, learned Counsel on behalf of the State has refuted the arguments so
advanced on behalf of the appellants and clarified that the presence of the eye witnesses on the spot
inside the room is most natural and the same cannot be doubted. There was no occasion for the
witnesses to falsely implicate the appellants because they will not spare the real assailants. Lodging
of the FIR has been proved by the P.W. 6 P.K. Singh, Investigating officer. It is for the appellants
to explain as to why and how they killed Shakila Begum when she had no ownership right over the
property in question. The place of occurrence is well proved by the eye witness account of the
incident and by the Investigating officer. The blood stained pillow cover has been taken into
possession and memo was prepared for the same. The manner of the incident has been specifically
described by the eye witnesses P.W. 2 and 3 and their testimony is clinching and inspiring
confidence. The appellants have taken false plea of alibi which after considerable scrutiny was
found incorrect and plea of alibi has been taken as an excuse for committing the crime. The trial
court has taken consistent view of the matter.

24. In view of above rival submission, we have to ascertain whether the prosecution
version of incident has been reasonably proved against the appellants?

25. Before dealing with the merits of the case, we consider it proper to have a glimpse of
the contents of the first information report. From perusal of the first information report, it is
reflected that the complainant Zille Haider lodged FIR against his real brothers Ejaz Haider and
Haseen Haider that they klled his mother Shakila Begum inside his house by firing on her at about
2.00 a.m. on 26.2.2000. At that point of time, there were other persons also who were sleeping in
the concerned room apart from the complainant, they were the deceased, nephew and niece of the
complainant who were sleeping on separate cots when the incident took place. First information
report indicates the motive and the purpose of killing the deceased Shakila Begum who happens to
be real mother of the appellants and the complainant. The utterance used by the appellants at the
time of commission of offence was confined to their anguish for giving them lesser land.

26. In this particular factual background of the case, we are required to determine the
authenticity and veracity of the prosecution version as to whether the incident, in fact, was caused
by the appellants and it was witnessed by the eye witnesses or whether witnesses have been
thrusted upon and procured in this case just for availing conviction!
712 INDIAN LAW REPORTS ALLAHABAD SERIES
27. At this juncture, we discover in the testimony of Zille Haider P.W 5 that he, though
claimed in the FIR to have been present inside the room when the incident took place has not
supported the incident being committed by the appellants. He has denied the complicity of the
appellants in the incident. He has specifically stated in his examination in chief that he has no
knowledge as to who killed his mother, though, he has admitted his signature on the first
information report, but he has elaborated that the contents were taken down on the dictation
Darogaji. In his cross examination, he has admitted that there was enmity between the appellants
and these witnesses. He was asked question that he has described in the first information report
registered on 26.2.2000 at about 2:00 a.m. regarding murder of his mother Shakila Begum that
nephew Akmal Ali, niece Shadab and the complainant were sleeping inside the room at that point
of time, but this witness replied to the question that he was not present on the spot. He has gone to
the extent that he had written all these contents in first information report at the instance of his
elder brother. He has reiterated that the contents of the FIR were written on the dictation of
Darogaji. He has further stated that the persons who killed his mother had also looted jewellery and
clothes of his house and his elder brother Gulzar and his wife, were also present in the village on
that day. In the last line of his testimony, in cross examination, he has stated that the first
information report was lodged only after dead body was sealed.

28. We may now scrutinize the testimony of eye witnesses P.W. 2 Akmal and his sister
P.W. 3 Km. Shadab. In their examination in chief, both the witnesses have corroborated the
contents of FIR and submitted that it was around 2:00 a.m. on 26.02.2000 when the appellants
appeared inside the room and asked their grandmother (deceased) that she had given lesser land to
them, whereupon the deceased said to them that the land is owned by their father and not by
herself. on this, Haseen Haider shot fire which hit on the neck of grandmother and thereafter, they
escaped from the scene. The incident was witnessed by them in the light of illuminated electric
bulb in the room. Their grandmother succumbed to the injuries while she was on the way to
hospital. In their cross examination, both the witnesses have stated that some dispute was existing
between their father and Zille Haider, the complainant on the one hand and the appellants on the
other hand. They have also stated that both the appellants were possessing country made pistol at
the time of occurrence. It has also come in their testimony that in some case report had also been
lodged by their father prior to the incident in question against the appellants. It is admitted position
that their grandmother (P.W.2 and P.W.3) did not own any land as such. It has also come in their
testimony that shot was fired when their grandmother was talking to the appellants and they were
face to face with the deceased. But description/narration of the incident has been testified by P.W. 2
and 3. Haseen Haider shot fire when the deceased covered her face with the bed sheet and the fire
was shot at point blank range, but, the doctor who conducted post mortem examination has testified
that injury no.1 cannot be caused when the assailants and deceased were face to face with each
other. He has further stated in his cross examination that injuries which are stated to have been
caused at 2:00 a.m. might have been caused prior in time at 10.00 p.m. (the same very night).

29. Perusal of the post morten examination report Ext. Ka.-13 reveals that there was no
blackening and tattooing in the wound (ante-mortem injury no.1). Normally, when fire arm injury
is caused then blackening and tattooing is found on the wound. Further, as per claim of these
5 All. Ejaz Haider Vs State Of U.P.

713
witnesses, the complainant Zille Haider was also asleep inside the room at the time of occurrence,
but the assailants did not cause any harm to him although they were inimical to him and they had
ample opportunity to cause harm to the complainant. The investigating Officer has stated in clear
cut terms that the eye witnesses (P.W.2 and P.W.3) had not stated in their statement that both the
assailants were armed with country made pistol but they stated that only Haseen Haider was
possessing country made pistol. More so, P.W. 6 P.K. Singh has also testified that not a single
witness stated that he saw the incident in question.

30. Thus, on two material points of witnessing the incident, the statement of the eye
witnesses P.W. 2 and 3 is full of contradictions and self explanatory of fact that they were either
not present on the spot or if they were present, then they did not witness the incident. If both of
them in fact witnessed the occurrence, then how and why they stated before the trial court that both
the assailants were possessing country made pistol in their hands. Had it been so that they
witnessed the incident, then at the initial stage, this particular evidence/testimony must have been
recorded by the Investigating officer in their statement under section 161 Cr.P.C. More so, it has
come in their testimony that fire was shot when the assailants were face to face with the deceased,
but this factual description was not so as per their own version the fire was allegedly shot by
Haseen Haider one of the appellants and that too at a time when the deceased had covered her face
with bed sheet. As per their testimony (P.W.2 and P.W.3), the fire was shot almost at the point
blank range but there is no tattooing and blackening in the injury no.1 i.e.- gun shot entry wound on
the neck.

31. It has come in the testimony of P.W. 6 P.K. Singh that he visited the place of
occurrence but he did not recover any pellet, bullet or any 'tikali' either on the floor of the room or
anywhere else ( inside the room) and he found no mark of any pellet or bullet even on the wall of
the room. This fact by itself, negates very claim of the eye witnesses that they witnessed the
incident, for the reason that in case the fire was shot at point blank range and there is firearm exit
wound (as per PMR) also then, it is obvious that some pellet or bullet must have been recovered
from inside the room. But no such bullet, pellet or mark was found inside the room as such, the
testimony of the Investigating officer, very much creates doubt regarding the manner and style of
the occurrence itself.

32. Moreso, it has nowhere been established that the blood also spilled on the floor of room
under the cot on which the deceased was sleeping and was killed. Then, how the Investigating
officer collected the blood stained earth/soil from under the cot on which the deceased was
sleeping. Only this much has come in the testimony of the eye witnesses that the blood was spilled
over the pillow cover and the memo of pillow cover was also prepared by the Investigating officer
as Exhibit. Ka. 11. It has nowhere come on record by testimony that blood so oozing out from
wound ever spilled over the floor of room, then the theory propounded by the Investigating Officer
that he also collected blood stained soil from under the cot of the deceased, is not established under
circumstances and as such memo of blood stained earth is wholly improbable and unreliable.
714 INDIAN LAW REPORTS ALLAHABAD SERIES
33. More so, testimony of the two eye-witnesses Akmal P.W.2 and Kumari Shadab P.W.3,
respectively read as a whole jointly with the testimony of P.W.6 P.K. Singh (I.O.) overwhelmingly
reflects that there is no whisper about any drop of blood falling down on the floor under the cot on
which the deceased Shakila Begum was sleeping. On the fateful night, in the absence of any such
conspicuous testimony that the blood of deceased Shakila Begum in fact was found on floor of the
room under her cot, it cannot be assumed and imagined merely on the statement of aforesaid three
prosecution witnesses that the blood must have spilled on the floor under the cot of deceased. In
this regard, irresistible testimony has come on record that the deceased was using bed-sheet and
mattress and the blood spilled on the pillow cover, which pillow cover was taken into possession by
the Investigating Officer as it was imbued with blood stains and memo of the same was prepared as
Exhibit Ka-11. Therefore, story regarding collection of blood stained soil from the spot under the
cot of the deceased is under circumstances rendered improbable and tantamounts to cooked up
version to give extra thrust to the prosecution case.

34. We are conscious of fact that the witnesses and circumstances may be either wholly
reliable or wholly not reliable or it may be partly reliable or partly unreliable. Here under given
facts and circumstances of the case, we after careful scrutiny of the entire evidence and
circumstances on record, discover that the place of occurrence is wholly unreliable and the same
cannot be taken to have been proved for varying description of the incident by the witnesses of
fact-P.W.2 and P.W.3-respectively, and the contradictions appearing in their testimony given in
court and the statement recorded by the I.O. under Section 161 Cr.P.C.

35. In so far as the plea of alibi raised by the appellants is concerned, their failure to prove
the plea of alibi will not by itself prove their culpability in the offence. Guilt of appellants has to be
proved beyond reasonable doubt only by the testimony of the prosecution witnesses and relevant
circumstances of the case. It is obvious that land in question was owned by the husband of the
deceased, therefore, the appellants might not have any occasion to kill Shakila Begum in the name
of acquiring lesser share in land. It is reflected from the testimony of P.W. 2 and 3 that their
grandfather who owned the property was also sleeping around the place of occurrence in the night
on 26.2.2000, but no attempt whatsoever was made to eliminate him by the appellants which
creates doubt on the motive imputed by the prosecution for killing the deceased as mentioned in the
first information report itself and in the testimony of eye witnesses PW-2 and PW-3. Deceased had
no concern with the land nor has it appeared in testimony of prosecution witnesses that she ever
played any role in distribution or partition of land so owned by her husband.

36. Now, we may also discuss ante-mortem injuries no. 3 and 4 as proved by the doctor
(P.W.8) in the post mortem examination report Exhibit Ka-13. Admittedly the abvoe two injuries
have been stated to be ante mortem injuries of nature and dimension-lacerated wound 3.5 cm x 1
cm x muscle deep on left side of chin (ante-mortem injury no.3). Similarly ante-mortem injury no.
4 has been described as abrasion 2.5 cm x 1 cm on the back of right forearm middle part.

37. In so far as aforementioned, two ante mortem injuries are concerned, there is no
whisper as to how and when these injuries were caused and doctor has not expressed any opinion as
5 All. Ejaz Haider Vs State Of U.P.

715
to how these ante-motem injuries have been caused. Certainly, learned trial court while expressing
opinion on both these injuries conjectured and assumed without any basis that these injuries might
have been caused during the course of conveying/taking away the deceased to the hospital from the
place of occurrence by car. Pertinent question arises as to from where, the learned trial court found
this figment of imagination when there was no material on record supporting such specific finding,
therefore, such finding, in absence of any supporting material, becomes wholly perverse and
erroneous. It was incumbent on the prosecution to have proved consistently these ante-mortem
injuries (no.3 and 4) as to how these injuries were in fact caused on the body of the deceased and
the prosecution has failed utterly to establish the same. Trial court is not expected to fill in the
lacunae in prosecution case by resorting to its own whims and imagination.

38. We have also discussed that PW-5 Zille Haider, the first informant has not supported
the incident. May be, that he also turned hostile and he is not interested in telling the truth, but it is
not a case where the first informant remained intact in his examination-in-chief, but turned hostile
in his cross examination. His entire testimony when read as a whole reflects that this first
information report was lodged on the dictation of Daroga Ji and that too after the dead body was
sealed. Therefore, the corroborative force that was required in this case regarding winning over of
this witness by the appellants is missing which also creates doubt on the authenticity of the
prosecution case. The objectivity of judicial scrutiny is to separate grains from the chaff, for which
it has to be established that charge framed against accused must be proved beyond reasonable
doubt. If reasonable doubt is created then benefit should indeed go to the accused.

39. For recording conviction it is imperative that the testimony of the eye witness should be
consistent and clinching and it cannot be said by any stretch of imagination that the evidence so
forthcoming is either inconsistent or wholly unreliable as is the case in hand. Here only two eye
witnesses have been produced who are none other than the son and daughter of Gulzar (brother of
complainant and the appellants) and both are interested witnesses, for the reason that Gulzar had
lodged a report regarding assault against both the appellants prior to the incident, otherwise, how
can they give contradictory testimony before the trial court which is not supported by their
statement recorded under Section 161 Cr.P.C. on material points. In this case at hand there is long
series of doubt. A doubt is created, regarding gun shot/ fire caused from point blank range on the
neck of the deceased inside the room. A doubt is further created about the very place of occurrence
from where the Investigating Officer allegedly took the sample of blood stained earth from under
the cot of the deceased as there was no such evidence regarding spillage of any blood under the cot
of the deceased. Next, there is exit fire arm wound and place of occurrence is located inside the
room, but no pellet, bullet whatsoever, have been recovered from inside the room. Even no marks
of any such pellet or bullet were found on the wall of the room. Strangely enough, the statement of
both the eye-witnesses was recorded under Section 161 Cr.P.C. but there is no mention that they
witnessed the incident. Thus, their claim that they have witnessed the incident turns out to be wholly
unreliable and the witnesses are not worthy of credit on the ground that in case their version is taken to be
correct one on the whole, the same does not answer reasonably and satisfactorily to the above doubts
mentioned herein above regarding the actual occurrence. Therefore, a holistic approach towards the
incident and proper appraisal of the evidence vis-a vis circumstances on record would go to suggest that
716 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution has not been able to prove its case against the appellants beyond shadow of reasonable
doubt and the trial court based its finding of conviction mostly and primarily on assumptions, conjectures
and surmises rather than on the evidence and circumstances of the case.

40. In our considered opinion, the arguments urged on behalf of the appellants by their counsel,
do carry force and we are in agreement with the same and hold that the charge framed under Sections
302/34 IPC against the appellants, have not been found proved beyond reasonable doubt, as such, the
appellants are held not guilty for the aforesaid charge in case crime no.29 of 2000, P.S. Bhopa, District
Muzaffarnagar.

41. Consequently, the judgment and order dated 28.09.2007 passed by Special/ Additional
Sessions Judge, Muzaffarnagar in Sessions Trial No.556 of 2000 arising out of Case Crime No.