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

- **Citation:** (2019) 3 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-22
- **Case number:** Criminal Appeal No. 2963 of 2009
- **Bench:** Naheed Ara Moonis, Anil Kumar-Ix
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasam-anr-in-jail-v-state-of-u-p-44833
- **Pages:** 29

## Headnote

Evidence
Law-Indian
Evidence
Act,1872
-
Medical
evidence
(postmortem report) fully corroborates
the prosecution version as well as
testimony of prosecution witnesses -
ocular evidence has been fully supported
by medical evidence - The presence of
witnesses is proved to be natural and
their
statements
are
nothing
but
disclosure of actual facts relating to the
occurrence - There is nothing on record
to show that PW-2 had any animous
against the accused appellants - The
testimony of prosecution witnesses of
fact are cogent credible and trustworthy
- both the witnesses of fact have proved
the
prosecution
version
and
their
testimonies is fully supported by medical
evidence therefore motive loses its
significance - there are some minor
contradictions in the depositions of the
prosecution witnesses of facts that too
in regard to the subsequent events and
not to the actual incident - minor
contradictions,
inconsistencies
or
insignificant
embellishments
do
not
affect the core of the prosecution case
and should not be taken to be a ground
to reject the prosecution evidence. The
omission should create a serious doubt
about
the
truthfulness
or
creditworthiness of a witness. It is only
the serious contradictions and omissions
which materially affect prosecution case
but not every contradiction or omission -
findings of conviction for the offence
punishable under Section 302 I.P.C.
recorded by the trial court are well
substantiated by the evidence on record
- the conviction recorded against the
accused appellants under Section 302
I.P.C. is hereby maintained and affirmed.
(Para 6 ,58,59,64,69,71)

B. Indian Evidence Act,1872 - Section
25, Section 26 , Section 27 - Section 27
of the Indian Evidence Act is in the
nature of an exception to the general
rules contained in the two preceding
sections i.e. under section 25 and 26 -
Being an exception to the general rule it
has to be strictly construed - The section
does
not
permit
the
admission
in
evidence of the whole of the confession,
but of such portion only of it as can be
said to relate distinctly to the fact
3 All. Hasam & Anr. Vs. State of U.P.
543
discovered - The accused appellants
were arrested by the police personnel
and two pistols and cartridges were
recovered from their possession - In
view of this the portion of the alleged
joint
statement
by
the
accused
appellants wherein they admitted that
they had committed the murder with the
pistols recovered from their possession,
this
fact
would
be
admissible
in
evidence. (Para 70)

Appeal dismissed (E-7)

List of cases cited:-

## Text

_Characters 0–39,979 of 98,911. This is a partial read: ask again with offset=39979 for what follows._

542 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 506 I.P.C. with one year
simple imprisonment. He is further
sentenced with seven years' rigorous
imprisonment and fine of Rs.15,000/- and
in
default
six
months'
additional
imprisonment for offence punishable
under Section 3/4 of POCSO Act. Both
the sentences shall run concurrently and
adjustment of previous imprisonment in
this case crime number shall be made
against above awarded sentence.

9. Copy of the judgment along with
lower Court record be transmitted to trial
Court for amendment of warrant of
conviction and sentence as per above
conviction and sentence and for follow up
action.
----------

(2019)11ILR A542

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.10.2019

BEFORE
THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE ANIL KUMAR-IX, J.

Criminal Appeal No. 2963 of 2009

Hasam & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Sushil Kumar Pandey, Sri Abhinav
Singh, Sri Anil Raghav, Sri Brijesh Sahai,
Sri Nazrul Islam Jafri, Sri Veer Singh, Sri
S.I. Jafri

Counsel for the Opposite Party:
A.G.A., Sri Bakhtyar Yusuf

A.
Evidence
Law-Indian
Evidence
Act,1872
-
Medical
evidence
(postmortem report) fully corroborates
the prosecution version as well as
testimony of prosecution witnesses -
ocular evidence has been fully supported
by medical evidence - The presence of
witnesses is proved to be natural and
their
statements
are
nothing
but
disclosure of actual facts relating to the
occurrence - There is nothing on record
to show that PW-2 had any animous
against the accused appellants - The
testimony of prosecution witnesses of
fact are cogent credible and trustworthy
- both the witnesses of fact have proved
the
prosecution
version
and
their
testimonies is fully supported by medical
evidence therefore motive loses its
significance - there are some minor
contradictions in the depositions of the
prosecution witnesses of facts that too
in regard to the subsequent events and
not to the actual incident - minor
contradictions,
inconsistencies
or
insignificant
embellishments
do
not
affect the core of the prosecution case
and should not be taken to be a ground
to reject the prosecution evidence. The
omission should create a serious doubt
about
the
truthfulness
or
creditworthiness of a witness. It is only
the serious contradictions and omissions
which materially affect prosecution case
but not every contradiction or omission -
findings of conviction for the offence
punishable under Section 302 I.P.C.
recorded by the trial court are well
substantiated by the evidence on record
- the conviction recorded against the
accused appellants under Section 302
I.P.C. is hereby maintained and affirmed.
(Para 6 ,58,59,64,69,71)

B. Indian Evidence Act,1872 - Section
25, Section 26 , Section 27 - Section 27
of the Indian Evidence Act is in the
nature of an exception to the general
rules contained in the two preceding
sections i.e. under section 25 and 26 -
Being an exception to the general rule it
has to be strictly construed - The section
does
not
permit
the
admission
in
evidence of the whole of the confession,
but of such portion only of it as can be
said to relate distinctly to the fact
3 All. Hasam & Anr. Vs. State of U.P.
543
discovered - The accused appellants
were arrested by the police personnel
and two pistols and cartridges were
recovered from their possession - In
view of this the portion of the alleged
joint
statement
by
the
accused
appellants wherein they admitted that
they had committed the murder with the
pistols recovered from their possession,
this
fact
would
be
admissible
in
evidence. (Para 70)

Appeal dismissed (E-7)

List of cases cited:-

1. Mritunjoy Biswas Vs Pranab @ Kuti Biswas
& anr. (2013) 12 SCC 796

2. St. of U.P. Vs Krishna Master & anrs. (2012)
12 Supreme Court Cases 324

3. Amit Vs St. of U.P. (2012) 4 SCC 107

4. Hukum Singh Vs St. of Raj. (2000) 7SCC
490

5. Shivaji Sahabrao Bobade Vs St. of Mah.
(1973) 2 SCC 793

6. Vijay Shankar Vs St. of Haryana (2015) 12
SCC 644

7. Abdul Waheed Vs St. of U.P. (2016) 1 SCC
583,

8. Gopal Vs St. of U.P. (1999) 39 ACC 98

(Delivered by Hon'ble Anil Kumar-IX, J.)

1. This appeal has been filed against
the judgment and order dated 23.04.2009
passed by Additional Sessions Judge
Court No. 9, Muzaffarnagar in Sessions
Trial No. 405 of 2005 (State of Uttar
Pradesh Vs. Hasam and another) arising
out of Case Crime No. 06 of 2005 under
Section 302 Indian Penal Code (here-inafter referred to as "I.P.C."), Police
Station- Chhapar, District- Muzaffarnagar
whereby both the appellants Hasam and
Nazam
have
been
convicted
and
sentenced to imprisonment for life with a
fine of Rs. 10,000/- under Section 302
I.P.C. with default stipulation.

2. The prosecution case in brief is
that the informant Mohabbat Ali has
lodged F.I.R. on 16.01.2005 at 05:15 p.m.
at police station- Chhapar, District-
Muzaffarnagar alleging therein that on
16.01.2005
he
along
with
Haneef,
Aladeen and his brother Ajaz (deceased)
were taking off peels of the sugarcane in
the field of Ajaz. At about 4:30 p.m. both
the accused Hasam and Nazam came
there with Tamancha (country made
pistol) in their hands and said that Ajaz
was the pairokar of civil case pending in
the court, he must not be spared alive.
Both the assailants fired with their
respective weapons on Ajaz (brother of
the informant) who received fire arm
injuries on right side back and left eye
and died on the spot. The entry was made
in G.D. of police station as Report No. 24
at
17:15
hrs.
on
16.01.2005
and
investigation was taken up by PW-4
Virendra Singh the then posted as Station
Officer at police station Chhapar.

3. After the registration of the F.I.R.
at police station, Investigating Officer
proceeded to the spot with necessary
relevant papers and started investigation
of the case. He directed Sub-Inspector
Prem Prakash Giri (PW-5) to conduct the
inquest of the deceased on spot. The
inquest proceeding commenced at 6:30
p.m. and completed at 8:30 p.m. on
16.01.2005. Inquest report is exhibit Ka6. In the inquest report opinion was
expressed unanimously that deadbody be
sent for postmortem examination so that
cause of death could be ascertained
544 INDIAN LAW REPORTS ALLAHABAD SERIES
properly. In the process certain relevant
papers were prepared by PW-5 and he has
prepared inquest report, photo nash
exhibit Ka-7. Letter to R.I. exhibit Ka-8,
letter to C.M.O. exhibit Ka-9. After
conducting
inquest
and
observing
necessary formalities, the deadbody was
entrusted to two constables Udai Veer
Singh and Harpal Singh for postmortem
examination.

4.

Thereafter
postmortem
examination of the deadbody of Ajaz was
conducted by Dr. Rajesh Singh PW-3 at
2:40 p.m. on 17.01.2005 at district
hospital
Muzaffarnagar.
Postmortem
report is exhibit Ka-2. According to the
postmortem report doctor has found
following ante-mortem injuries on the
deadbody of the deceased:-

(i) Firearm entry wound size 1.5
cm X 1⁄2 cm on left eye-brow margins are
inverted an area of blackening 07cm X
5.5 cm on left front forehead.

(ii) Exit wound- Size 2.5 cm X
1.5 cm on just below the left mandible 2.5
cm from left ear. Margins are everted and
irregular
edges.
Injury
no.
1
is
corresponding to injury no. 2 i.e. wound
of exit. The path is communicating from
injury no. 1 to no. 2 maxillary bone upper
side fracture present.

(iii) Firearm injury size 4.5 cm
X 3 cm on Rt. Side of back of chest, 5 cm
below from scapula & 16 cm from
midline
(vertebral
column)
wound
margins are inverted and lacerated the
wound is extended inner right & left lung
and to accending aorta 7th & 8th right
ribs are fractured. Pellets recovered from
both lungs.

Doctor opined that the duration
of death was approximately one day old
and cause of death is due to ante-mortem
firearm injuries on the vital organs.

5. At the time of occurrence PW-4
Virendra Singh was posted as Station
Officer
of
police
station
Chhapar,
Muzaffarnagar. In his presence, F.I.R. of
the Case Crime No. 06/2005 under
Section 302 I.P.C. was registered on the
basis of the written report of the
complainant Mohabbat Ali, brother of
deceased. Investigation of the case was
taken up by PW-4 Virendra Singh. He
directed to Sub-Inspector Prem Prakash
Giri PW-5 to conduct and prepare the
inquest report in dragon light and
petromax. He has recorded statement
under Section 161 Cr.P.C. of the
complainant Mohabbat Ali and eye
witness Haneef. On 17.01.2005, he has
recorded statement of the witnesses of the
inquest and eye witness Aladeen. He
inspected the spot on the pointing of
complainant and prepared site plan which
is exhibit as Ka-3. On 22.01.2005 at 8:40
a.m. he arrested both the accused Hasam
and Nazam near the Kabristan on Basera
Madak
Road.
He
recovered
one
Tamancha 315 bore and one live cartridge
from the possession of accused Hasam
and one Tamancha 12 bore, two live
cartridges from the possession of Nazam.
Against Hasam and Nazam cases were
registered under the Arms Act as Case
Crime No. 16 of 2005 & Case Crime No.
17 of 2005 under section 25/27 Arms Act
respectively. He sent the recovered
firearms to Forensic Science Laboratory,
Agra for examination. He recorded the
statement of Sub-Inspector Prem Prakash
Giri,
Constable
Harpal
Singh
and
Udaiveer Singh. After investigation he
has submitted charge-sheet against both
the appellants Hasam and Nazam in
aforesaid crime no. ;6 of 2005 under
3 All. Hasam & Anr. Vs. State of U.P.
545
aforesaid section 302 I.P.C. Charge-sheet
is marked as exhibit Ka- 5.

6. In the process, case of both the
accused was committed to court of
sessions where the Case Crime No. 6 of
2005 under
section
302
IPC
was
numbered as Sessions Trial No. 405 of
2005. It will be proper to mention here
that separate sessions trial under Section
25 Arms Act were registered as Sessions
Trial No. 672 of 2005 and Sessions Trial
No. 673 of 2005 against each of the
accused person for the recovery of
firearms from them. The trial was
entrusted to the court of Additional
Sessions
Judge,
Court
No.
9
Muzaffarnagar. The trial of cases under
Section 25/27 Arms Act were also
proceeded and decided with the trial of
this case resulting into acquittal of the
accused appellants from the charfges of
section 25 Arms Act.

7. The trial court after hearing the
prosecution as well as defence and
perusing the material available on record
framed the charges against the accusedappellants under section 302 IPC. The
charges framed against them were read
over and explained to them. The accused
appellants abjured the guilt and claimed
to be tried. Thus prosecution was directed
to produce all its testimonies by which it
proposes to prove guilt of the accused
person. The prosecution has examined as
many as seven witnesses, the brief sketch
of these witnesses is as here-under:-

8. The prosecution had examined
informant
Mohabbat
Ali
(P.W.1),
Aladeen (P.W.2) as eye witness, Dr.
Rajesh Singh (P.W.3), S.H.O.Virendra
Singh
(P.W.4),
Sub-inspector
Prem
Prakash Giri (P.W.5) , constable Virendra
Kumar P.W 6 , Sub-inspector and Harpal
Singh (P.W.7) as formal witnesses.

9.

After
conclusion
of
the
prosecution
evidence,
the
accused
appellants namely Hasam and Nazam
were
examined
under
Section
313
Cr.P.C.In their statement they denied all
the charges attributed against them and
pleaded for innocence. They stated that
they have been falsely implicated in the
present case due to animosity. They
demanded
opportunity
to
produce
evidence in defence. They produced
Rishipal Singh Radio Station Officer as
D.W.1.

10. The prosecution in order to
corroborate its stand examined Mohabbat
Ali (P.W.1) on 1.2.2006. who is the
brother of deceased and the complainant
eye witnesses of the incident . He deposed
that he is well acquainted with the
accused appellants Hasam and Nazam.
The accused appellants are belonging to
his village and are his neighbours. He is
also knowing to deceased Ajaz who was
his real younger brother. The occurrence
had taken place on 16.1.2005 at about 4 to
4.30 p.m. He in association with Haneef,
Aladeen (PW-2) and his brother Ajaz (
now deceased) were peeling sugarcane in
the field. At that place, the accused
persons namely Hasam and Nazam came
at around 4 to 4-30 p.m. and on reaching
at that place they exposed that Ajaz was
doing the pairvi of cases in the civil court
hence today they shall not spare him.
Both the accused persons namely Hasam
and Nazam were equipped with country
made pistol. They fired at Ajaz, the
brother of the complainant. The first fire
hit at the right side chest and the second
fire hit on his left eye as a result of which
he succumbed to injuries on the spot.
546 INDIAN LAW REPORTS ALLAHABAD SERIES
Thereafter accused persons fled from the
spot unleashing reign of terror by
extending threats and hurling abusive and
vituperative words. P.W.1 Mohabbat Ali
immediately rushed at the police chawki.
It was informed by the personnel posted
at the police chowki to get the first
information report registered at the police
station. The first informant got the report
written sitting at the house by his nephew
Hakim Ali. The report was written
verbatum by Hakim Ali at the dictate of
the complainant. The report was heard by
him on the recital of Hakim Ali.
Thereafter the written report was handed
over at the police station concerned.
P.W.1 Mohabbat Ali had identified the
writing and signature of Hakim Ali. He
had seen him reading and writing. The
paper no.5 was read to P.W.1 Mohabbat
Ali. He proved that it was the same report
which was got written by Hakim Ali and
was handed over at the police station
concerned. The said written report was
marked as Ext.Ka.1.

11. P.W.1 Mohabbat Ali divulged
that his house and the house of accused
persons are situated in the same vicinity.
Prior to 5 to 6 months of the incident,
there was rift between the complainant
and the accused persons on the issue of
exit of water. The said issue was pacified
on the intervention of some dignified
persons of the locality. He had acquiesced
proposal put forth by the persons of the
locality and was satisfied but the accused
persons were nurturing animus and
grudge against him. On account of former
animosity, the accused persons namely
Hasam and Nazam had done to death his
brother Ajaz by firing upon him.

12. In cross examination he
unravelled that Hakim Ali is practicing in
civil court at Muzaffrar Nagar who is
standing behind him. The sun had set on
after one hour of the incident. The police
personnel had come at the spot after
enshrouding of sun. He could not
ascertain as to whether the police
personnel who came on the spot were
hailing to Basere or Chhapar. When the
P.W.1 Mohabbat Ali reached at the police
station concerned, the Station Officer
were present there. He informed to the
Station Officer concerned that such an
occurrence had taken place in which his
brother was done to death with firing. He
stayed at the police station concerned
about 15-20 minutes. His nephew Hakim
Ali was also associated with him. P.W.1
Mohabbat Ali proceeded from the police
station firstly and the police personnel
departed
from
the
police
station
concerned later on. He reached at the
place of occurrence with police personnel.
When the complainant and other persons
reached at the place of occurrence, the
sky was darkened but it was not night.
The person standing at a distance of 20
yards was visible. No higher officer of the
police had reached at the place of
occurrence in his presence. At the place of
occurrence there were three police officer
and the rest were police personnel. He could
not ascertain who was the Station Officer,
who was the Circle Officer and who was the
Senior Superintendent of Police. It is wrong
to say that he was not present on the spot and
had not seen the incident. He has also stated
position of Ajaz (deceased) and the
witnesses on spot at the time of incident. He
could not divulge the duration of stay of
police personnel whether they stayed two
hours, or four hours or six hours. He proved
his presence at the place of occurrence.

13. The P.W. 1 Mohabbat Ali was
further cross examined on 23.3.2006. He
3 All. Hasam & Anr. Vs. State of U.P.
547
deposed that the corpse of Ajaz had
reached at Muzaffar Nagar mortuary on
16.1.2005 at about 11.00 P.M. The
complainant in association with Hakim
Ali (Advocate), Haneef Aladeen and
other persons reached at the mortuary
with the corpse of Ajaz. Two to four
persons remained present with the dead
body of Ajaz. Rest of the persons returned
to village. The persons staying at the
mortuary with corpse were Shaukeen and
Kayyum. The persons associated with the
corpse of Ajaz from the place of
occurrence to morturary were Mohd.
Azad s/o Fazal, Nawab s/o Idreesh, Firoz
uddin s/o Shamiuddin, Tanamjeem s/o
Aswar Ali and Shaukat s/o Ghaseeta. The
corpse of deceased Ajaz was brought at
the mortuary in Tempo. Ambassador car
was also used by other persons in coming
at the mortuary. The dead body of Ajaz
was escorted by two police personnel.
The station officer concerned directed
them to reach at the mortuary on the
assurance that he will reach very soon.
The Station Officer concerned had
reached at the mortuary within 30 to 45
minutes. The Station Officer concerned
was at Chhapar police station. One
constable had come with the station
officer concerned. The P.W.1 Mohabbat
Ali did not recollect how long the Station
Officer concerned stayed at the mortuary
because he was coming back to his
village leaving the corpse of Ajaz. Hakim
Ali (Advocate) stayed at the village.
There was no light at the mortuary. He
had also not gone inside the room. It was
not within his knowledge as to whether
there was electric or not. The person
standing there had opened the lock. Next
day, he had reached at the mortuary at
about 7 'o' clock. When the P.W.1
Mohabbat Ali reached at the mortuary,
the police personnel from Chhapar had
come there. The station officer concerned
in association with two or three police
personnel came there at about 9 'O' clock.
The
police
personnel
stayed
there
approximately three or four hours. Two
police personnel who had gone with him
(P.W.1 Mohabbat Ali) remained there
three or four hours. He was not aware
about any interrogation made by the
Station Officer concerned at the mortuary.
The Station Officer concerned was
making confabulation with the persons
standing there. The station officer present
at the mortuary was seen at the place of
occurrence. He had seen the station
officer concerned making discourse with
Mohd. Ajad, Nawab, Firoz Uddin ,
Tanjeem , Shaukat Ali. These five
persons had reached at the mortuary with
him in the morning. The station officer
concerned had seen the corpse of Ajaz at
the mortuary. The signature on the
Panchayatnama was obtained at the
mortuary. The signature of witnesses
namely Mohd. Azad s/o Fazla, Nawab s/o
Idrish,
Firozuddin
s/o
Shamimuddin,
Tanjeem s/o Akhtar Ali ,Shaukat Ali s/o
Ghasita was obtained at the house situate at
Basera. The dead body of Ajaz was lying in
the house at the moment of Panchayatnama.
His house was existing on the road running
from Varla to Basera towards north side.
His house was adjoining to the road. Ajaz
(deceased) was living in that house. The
house of accused Hasam and Nazam was
situated at a distance of 500 metres from his
house. It was also divulged by him that
there was demarcative wall in between
these houses. It is wrong to say that his
house as well as the house of Hasam and
Nazam would not have been existing side
by side.

14. The field where the occurrence
took place is situated towards north side
548 INDIAN LAW REPORTS ALLAHABAD SERIES
on the road running from Barla Basera .
The field which is the place of occurrence
is existing at a distance of 1⁄2 kilometre on
the road running from Khai Kheri. The
chak road was carved out towards west
from the path running from Khai Kheri.
His chak was existing in front of the chak
of Faiyaz running from the Chak road.
Running from the path of Khai Khera at a
distance of 90 metres towards west , his
chak was existing. To reach at the chak,
he had to proceed towards south from the
chak road. The field of occurrence would
have been about seven bighas. The crops
of sugar cane was existing in that field.
There were crops of sugar cane around
the field of occurrence. The height of the
sugar cane was more than the height of
the men. The harvesting of the sugar cane
was not continuing in the adjacent field.
In the adjoining of his field, there was
field of Nawab s/o Gafoor towards west,
field of Faiyaz s/o Raham Ilahi towards
east, field of Lal Fakeer Chand no
member of their family were present there
at the moment of occurrence. The
complainant (P.W.1) was peeling off
sugar cane at his field at about 10.00 a.m.
and Ajaz as well as both the witnesses
were also peeling off sugar cane. The
complainant was having the peeling
equipment i.e. Palkati and Daranti. Bogi
(cart) was standing in the field. They were
peeling off sugar cane from 10.00 a.m. to
4.00 p.m. In the intervening period, they
used to suck juice from the sugar cane.
The complainant and three others had
peeled off till the crucial moment of
occurrence about 7 to 8 bundles. The
peelings of the sugar cane were scattered.
The trunks of peeled cane were being
loaded
on
the
Bogi
(cart).
The
complainant had not met with the accused
Hasam and Nazam in the morning while
going to his sugar cane field. The accused
appellants had no field adjacent to the
spot of occurrence. The witnesses namely
Haneef and Aladeen had also no field in
the adjacent to the field of occurrence.
They used to go near the place of
occurrence for peeling off the sugar cane.
The deceased (Ajaz) had worn shirt, pant,
sweater. Socks etc. at the moment of
occurrence. The cloth put on his head was
removed. At the moment of occurrence,
the complainant was handing over peeled
trunk of sugar cane to Ajaz. The Bogi was
leashed with bullock. Ajaz (deceased)
was standing on the Bogi (cart) at the
moment of occurrence. Ten to twenty
bundles of peeled sugar cane were loaded
on the cart. Ajaz (deceased) was adjusting
to those bundles. The mouth of the
bullock was towards west. Ajaz at the
moment of occurrence was towards east
at the back of cart.. The miscreants did
not search to Ajaz rather he was visible
from the front side on the Bogi (cart). The
miscreants had appeared from the sugar
cane field of Nawab towards the western
side. No quarrel had taken place prior to
this
incident.
Both
the
malfactors
remained down to the Bogi (cart). The
complainant was standing towards east of
the Bogi (cart). Ajaz (deceased) was
standing at the height of 3 or 4 feet from
the ground. Ajaz (deceased) was sitting at
the moment of occurrence and his face
was towards east. The malfactors fired
upon him from the direction of south.
Ajaz (deceased) could not get time to flee
from the place of occurrence. The
accused
persons
were
standing
in
contiguous of the Bogi (cart). The
malfactors had fired without stretching
their elbow. There was altitude of about
one foot between the accused persons and
the deceased (Ajaz) meaning thereby
deceased (Ajaz) was standing at the
height of about one foot from the accused
3 All. Hasam & Anr. Vs. State of U.P.
549
persons. The complainant had raised
shrieks and shrill at the moment of
occurrence but nobody had come. The
malfactors did not fire upon any other
person except Ajaz. The accused persons
had opened only two round of firing at the
place of occurrence. The weapon by
which the miscreants were equipped, one
of them was 315 bore . He had not seen
that weapon earlier. On being interrogated
by the people, it was divulged by him that
one weapon was of thin barrel and the
another was of thick barrel. During the
course of confabulation, people informed
him that it is called Katta (country made
pistol. On being wounded, Ajaz had fallen
down from the cart. The peeled trunks of
sugar cane were also saturated with
blood. Blood was also fallen down. The
deceased (Ajaz) had fallen towards north
from the Bogi (cart). After executing the
incident, the accused persons had run
away from the place of occurrence. The
complainant had observed the condition
of Ajaz by touching his body. The
condition of deceased (Ajaz) was highly
precarious even he was neither inhaling
nor exhaling. There was no stain of blood
on the cloth of compl;ainant nor Haneef
and Aladeen. The place where Ajaz had
fallen down, was saturated with profuse
blood. After receiving firearm injury, he
observed Ajaz where he had sustained
injuries. Skull bone was not fractured.
The left eye of the deceased (Ajaz) had
come out on account of injuries. The next
injury was caused in the right side of
abdomen. The complainant did not pay
heed on the size of wounds. He had seen
only two injuries on the person of the
deceased. When the police personnel
came on the spot, they did not allow
anybody to touch the body of the
deceased. When the police personnel
touched the body of the deceased (Ajaz),
the complainant was present on the spot.
When the police personnel touched the
body of the deceased (Ajaz), at that
moment there were only two injuries on
his person. The complainant did not take
notice as to whether the blood was
exuding from the body of the deceased
(Ajaz) or not. One eye had come out and
the other eye was partially opened. The
deceased (Ajaz) was not lying flat. The
police personnel after examining the
condition of the deceased (Ajaz) took the
corpse into possession. At that moment,
there was gathering of about hundred
persons hailing to that village. The village
personnel did not resist when the police
personnel were taking the corpse of
deceased Ajaz. The Geep of police
personnel was standing in the nearby
place at the chakroad. The police
personnels were having torches. There
was no arrangement of light. The police
personnel told at the police chawki that
they shall raid at the house of the
assailants namely Hasam and Nazam and
will arrest them. Since the complainant
was unconscious, he could not give
correct information whether the police
personnel had taken any assistance of his
men in raiding at the house of assailants.
He regained consciousness on the next
day and the next day, he had gone with
the deceased (Ajaz). The complainant was
highly flustered and nonplussed. Hakim
Ali, Advocate had reached at the place of
incident after the occurrence. It was
further averred that Hakim Ali reached at
the place of occurrence after lodging of
the
first
information
report.
The
complainant
had
seen
Hakim
Ali
(Advocate) at the place of occurrence at
about 5 to 5.45 p.m. There was no
Advocate hailing to Muzaffar Nagar with
him. He had gone at the police station
concerned with Hakim Ali Advocate. The
550 INDIAN LAW REPORTS ALLAHABAD SERIES
Station Officer concerned had reached at
the place of occurrence just behind him.
The police personnel had reached at the
place of occurrence prior to that. No
person belonging to the family of accused
Hasam and Nazam was present at the
place of occurrence.

15. After the incident, the station
officer concerned had interrogated him at
the place of occurrence. He could not
recollect as to whether the statement
recorded by the Station Officer concerned
was noted down or not. The complainant
got the spot inspection done by the station
officer concerned next day at about 11.00
a.m. On the same day, he showed the
Bogi standing at the place of occurrence
and the blood saturated trunks of sugar
cane. Those trunks of Sugar Cane were
lying at the beneath of Bogi (cart) . He
could not ascertain as to whether the
Station Officer concerned had taken away
the same with him or not. The blood
saturated soil and plain soil were
collected on the next day. The place of
occurrence was pointed to the Station
Officer
concerned
from
where
the
accused persons had fired upon Ajaz. The
particular place was pointed to the Station
Officer
concerned
from
where
the
deceased (Ajaz) was sitting at the crucial
moment of firing. He had shown the
bundles of sugar cane lying on the spot. It
was pointed out by him that he was
peeling off sugar cane towards east of
Bogi (cart). He has pointed to the Station
Officer concerned with regard to holding
of trunks of sugar cane. In case this has
not been recorded by the Station Officer
concerned, he had no reason. It was
divulged by him that the accused persons
fled from the place of occurrence hurling
abusive and vituperative words. In case it
has not been recorded by him,he could
not put forth any reason. It was also
brought in the notice of the Station
Officer concerned that he had gone at the
police station concerned that he had gone
at
the
police
chowki.
The
police
personnel posted at the Chowki directed
to him to go at the police station
concerned to get the FIR registered. This
fact was divulged by him to the Station
Officer concerned. In case this fact was
not recorded in the report or investigation,
he could not put forth any reason for it.
This fact was also unfolded by him that
his house was situated in the contiguous
of the assailants and the querrel ensued
between them on the issue of exit of water
prior to six months of the incident. This
quarrelsome issue was settled by the
intervention of some dignified persons of
the locality but the assailants had been
nurturing animus and grudge against the
deceased (Ajaz) and his family members
and in consequence of retaliation, the
accused appellants had executed the said
offence liquidating the deceased (Ajaz).
In case this fact has not been incorporated
in the first information report, I have no
reason to say anything.

16. Further it was divulged by the
P.W.1 (Mohabbat Ali) in his cross
examination recorded on 31.3.2006 that
he had no idea on how many papers were
got signed from him. He had also no idea
that ten papers were got signed from him
or it was twelve in numbers. At the
moment,the station officer concerned got
his signature on the papers, Hakim Ali
was also present there. The report which
was got registered by him was duly
signed by him at the police station
concerned. The papers on which his
signatures were obtained , he does not
have any knowledge what were those
papers. It was neither asked by him what
3 All. Hasam & Anr. Vs. State of U.P.
551
were those papers.The station officer
concerned
did
not
make
any
confabulation at the police station with
Hakim Ali before him. When he was at
the police station concerned, he had
unfolded entire incident to the Station
Officer concerned.

17. The police station was not
existing on the Highway of DelhiDehradun.
It
was
existing
towards
western side from the road at the distance
of one and one and half furlong. When he
reached at the police station concerned,
the sun was rising. When he returned
from the police station concerned, the day
was nearly over. The police station
concerned was situated at the distance of
10 to 12 kilometre from his village. It was
not situated at the distance of twenty
kilometres.

18. He had shown the incriminating
articles i.e. Palkati and Darati lying at the
spot to the Station Officer concerned. His
witnesses namely Haneef and Aladeen
were tightening bundles on the spot.
Someone were tightening trunks of sugar
cane. Ajaz was sitting on the spot
lowering his neck below therefore, Ajaz
(deceased) could not flee from the spot.
Fire was done from the countrymade
pistol. The pistol was only one barrel and
not have two barrels. The country made
pistol was not further loaded. The
complainant did not make attempt to
apprehend the accused persons after
firing. The incriminating articles i.e.
Palkati or Daranti were not lifted by him.
The complainant was highly terrified and
frightened. After harvesting the sugar
cane, only roots (Khobey) were left.
Khobey means the root of the sugar cane.
The deceased Ajaz might have fallen in
the mid of the roots. A Kolhoo was
installed near the place of incident. for
crushing the sugar cane. The Kolhoo was
lying unused. There were two brick kilns
between the road and the place of
occurrence but at the moment of the
incident, there was no person preparing
the rough bricks. The brick kiln was also
closed. From the place of occurrence
towards east, the brick kiln was adjoining
with the field of Faiyaz but no body was
present there. After execution of the
incident, the complainant remained there
about 2 to 3 minutes thereafter the
complainant and the witnesses rushed
towards the village. On arriving at the
road, he divulged that Ajaz had been hit
with shot. He did not make any
arrangement of vehicle for reaching at the
road. He did not come across to any
person in the interregnum period. There
were about fifty shops at the stall. On
reaching at the stall and divulging about
the murder of Ajaz, a number of persons
gathered. The complainant had not gone
at the place of occurrence again. He did
not have knowledge who were present at
the
place
of
occurrence
after
his
departure. This fact was unfolded by the
complainant on reaching at his house that
his brother Ajaz had been hit with shot.
Haneef and Aladeen also unravelled that
he was hit with shot. The civil suit which
was pending prior to the incident was
concerning with Bhondoo s/o Varoo. In
that suit, Bhondoo was not doing pairvi
but Ajaz (deceased) was doing pairvi. The
house of Bhondoo was situated towards
east from the house of Hamid and Majid.
The complainant was not aware against
whom Bhondoo had instituted the suit.
The suit was instituted in the civil court
prior to 5 to 6 months . The said suit is
still pending. The complainant was not
doing any pairvi with regard to the suit
pending in civil court. Some quarrel and
552 INDIAN LAW REPORTS ALLAHABAD SERIES
ruckus had taken place between the
assailants and the deceased (Ajaz) with
respect to the suit pending in the civil
court. The uprorious scene developed
between the assailants and the deceased
(Ajaz) and others were informed to the
police station concerned. The matter was
pacified on the intervention of the police.

19. He deposed that earlier dispute
had taken place from the side of the
complainant and the assailants. The police
personnel had intervened to alleviate. At
the crucial time of incident, the deceased
(Ajaz) was running the shop of fertilizers
at the stall. The deceased (Ajaz) was not
doing the transanction of money lending.
The deceased (Ajaz) did not have any cart
or taxi for plying on rent. It was divulged
that he was possessing Ambassador car
for his own pleasant.

20. It was disowned by the
complainant that the deceased (Ajaz) used
to have cart and taxi both and those were
used to ply on rent. It is wrong to say that
the driver of the cart was done to death
and the pairvi was being done by Ajaz (
deceased) in that case. His brother Ajaz
was constantly being threatened by the
assailants. It is wrong to say that his
brother was done to death by some
strangers. It is also wrong to say that on
account of pendency of civil suit, the first
information report has been lodged
against the accused appellants after much
deliberation and consultation after undue
delay. It is wrong to say that Hakim Ali
Advocate was called from Muzaffar
Nagar so as to get the first information
report registered. At the moment of
execution of the incident, Hakim Ali
Advocate used to live at the back of
District Hospital. He confirmed that his
brother Ajaz was done to death before
him. He disowned that he was giving his
testimony against the accused appellants
on account of animosity.

21. The prosecution has examined
Aladeen as P.W.2 on 29.5.2006. He
affirmed on oath that he is knowing well
to Hasam and Nazam who are belonging
to his village. The incident has taken
place on 16th January 2005 at about 4 to
4.30 p.m. Mohabbat Ali (complainant
P.W.1), Haneef and Ajaz peeling sugar
cane with him in the field of Ajaz. The
accused persons namely Hasam and

22. Nazam came who were
equipped with pistols. Nazam told to
another accused that Ajaz is doing pairvi
against him in the civil suit. He will not
be spared alive today. Nazam fired from
his pistol pointing towards Ajaz which hit
at the right side under the arm of Ajaz.
Second fire was made by Hasam pointing
towards Ajaz which hit at his right eye.
The victim (Ajaz) succumbed to injuries
on the spot as a result of shot sustained by
him.

23. There was a civil suit pending
between the perpetrators of the crime and
Ajaz on the issue of drain on account of
which
assailants
were
rearing
and
nurturing animus and grudge. Ajaz has
been decimated on account of these
bitterness.

24. The P.W.2 Aladeen was cross
examined. He divulged that when both
the assailants had fired to the victim Ajaz
then the malfactors were standing on the
ground and the victim Ajaz was standing
on the cart. It was divulged by him that
shots were made from short distance. He
remained present on the spot after the
time of incident till the arrival of the
3 All. Hasam & Anr. Vs. State of U.P.
553
police. He had seen to Hakim Ali
Advocate at 4.30 p.m-5.00 p.m. Hakim
Ali Advocate had done the work of
writing at the home. He was not aware as
to whether the police personnel who came
at the spot was hailing to Chhapar or
Basera. The police personnel had arrived
on the spot just after the incident at about
4.30 p.m. to 5.00 p.m. He proved his
presence on the spot at the time of
occurrence.

25. The cross examination of P.W.2
Aladeen was resumed on 7.7.2006. He
deposed that he had no field adjacent to
the place of occurrence. He had gone for
peeling of sugar cane on the day of the
occurrence. It had come to his notice that
the work of peeling was going on in the
field of deceased (Ajaz). The field of
occurrence was situated from the main
path of Basera Varla towards north side
about one kilometre away . It is correct to
say that the altitude of the field was about
one or one and half feet from the height
of men. No work of peeling was going on
in any field except in the field of Ajaz
(deceased). The field in which the
working of peeling was going on was
measuring to about seven bighas. The
work of peeling was going on in that field
prior to one or two days of the incident .
On the fateful day of incident, about 5 to
4 biswa sugar cane was peeled off. Prior
to it, more than 1'1/2 bigha sugar cane
was peeled off. The peeling of the sugar
cane in that field was not done in entire
north -south side but in some portion of
north-south direction. The peeling work
was done from the western side. The
sugar cane of Haji was situated towards
western side. In the north side, the field of
Mohabbat Ali (P.W.1) was situated. In
the southern side, the field of Fakir Chand
was situated. In the eastern side, the field
of Haji Faiyaz was existing. They began
the work of peeling from 9 to 10 'O' clock
from morning. When they reached at the
field, the labourer who were engaged in
the work of peeling were standing
equipped with their Palkati and Daranti.
In the intervening period, he did not take
any meal as he proceeds after takine meal
rather he had taken juice of sugar cane as
well as water between 10 a.m. to 4.30
p.m. The cart was standing towards
western side of the field. At the crucial
moment of the incident, the deceased
Ajaz real brother of Mohabbat Ali
(P.W.1) was standing at the distance of 10
paces towards the hill. When the incident
took place, P.W.2 Aladeen had gone for
trunks of the sugar cane. He was standing
towards western side from the cart at a
distance of 20 paces.

26.