# Sarfaraz Ali & Anr v. State of U.P

- **Citation:** (2019) 2 ILRA 2175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-31
- **Case number:** Criminal (Capital) Appeal No. 205 of 2018
- **Bench:** Ramesh Sinha, Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sarfaraz-ali-anr-v-state-of-u-p-44703
- **Pages:** 50

## Headnote

A. Section 302 read with Section 149
I.P.C. - Appeal against conviction.

Death penalty can be awarded only rarest of
rare cases when collective conscious of the
community is shocked it will be expected the
holders of the judicial power center to inflict
death penalty in respect of person their
opinion as per regards the desirability or
otherwise retaining death penalty. In the facts
and circumstances of the present case, it is
not possible to come to the conclusion that the
present case would fall within the category of
rarest of rare one. (Para 131)

In this case the offence of murder is not a
gruesome manner that it would not require
imposition of death penalty. Therefore, it adequate
that ends of justice would be met if the
punishment under Section 302/149 IPC is reduced
to that of life imprisonment. (Para 133)

Appeal partly allowed (E-2)
Case Law Referred: -

## Text

_Characters 0–39,861 of 173,156. This is a partial read: ask again with offset=39861 for what follows._

2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2175
out a case of accident rather than a
suicide.

39. On the basis of above discussion, I
find that the conviction and sentence
recorded by the learned trial court suffers
from perversity and the impugned judgment
is not sustainable under law.

40. Therefore, all the three appeals
are allowed and the impugned judgment
and order dated 07.09.2018, passed by
learned
District
&
Sessions
Judge,
Chandauli, in Sessions Trial No. 178 of
2012 (State vs. Rakesh Yadav), arising
out of Case Crime No. 44 of 2009, under
Section 306/34 IPC, Police Station
Baluwa, District Chandauli, whereby the
appellants have been convicted and
sentenced under Sections 306/34 IPC is
set aside and appellants Rakesh Yadav,
Akhand Yadav and Sheela Devi are
consequently acquitted.

41. Appellants Rakesh Yadav,
Akhand Yadav and Sheela Devi be set
at liberty forthwith.

42. Office is directed to transmit
back the lower court record along with a
copy of this judgment for information and
necessary compliance.
----------
(2019)10ILR A 2175

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2019

BEFORE

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

Criminal (Capital) Appeal No. 205 of 2018
connected with
Capital Cases No. 206 of 2018
connected with
Capital Cases No. 207 of 2018

Sarfaraz Ali & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Nazrul Islam Jafri, Sri Dileep Kumar,
Sri Sadaful Islam Jafri, Sri V.P. Srivastava,
Sri V.M. Zaidi.

Counsel for the Opposite Party:
G.A., Sri Ajay Kumar Pandey, Sri Sudhir
Kumar Agarwal, Sri Satish Trivedi.

A. Section 302 read with Section 149
I.P.C. - Appeal against conviction.

Death penalty can be awarded only rarest of
rare cases when collective conscious of the
community is shocked it will be expected the
holders of the judicial power center to inflict
death penalty in respect of person their
opinion as per regards the desirability or
otherwise retaining death penalty. In the facts
and circumstances of the present case, it is
not possible to come to the conclusion that the
present case would fall within the category of
rarest of rare one. (Para 131)

In this case the offence of murder is not a
gruesome manner that it would not require
imposition of death penalty. Therefore, it adequate
that ends of justice would be met if the
punishment under Section 302/149 IPC is reduced
to that of life imprisonment. (Para 133)

Appeal partly allowed (E-2)
Case Law Referred: -

1. Farooq @ Karattaa Farooq & ors Vs St. Of
Kerala (2002) 4 SCC 697.

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri V.P. Srivastava, learned
Sr. Advocate & Sri V.M. Zaidi, learned
Sr. Advocate assisted by Sri Dileep
2176 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar and Sri N.I. Jafri, learned counsel
for the appellants, Sri Satish Trivedi,
learned Sr. Advocate assisted by Sri Ajay
Kumar
Pandey,
Sri
Sudhir
Kumar
Agarwal,
learned
counsel
for
the
complainant and Sri S.K. Pal, learned
Government Advocate assisted by Sri J.P.
Tripathi, learned A.G.A. for the State.

2. This Criminal (Capital) Appeal
No. 205 of 2018 (reference no. 8 of 2018)
has been preferred against the judgment
and order dated 20.11.2018 preferred by
accused appellants, Sarfaraz Ali, Md.
Sahid, Sadiq and Rashid against the
judgement and order dated 20.11.2018
passed in S.T. No. 957 of 2010 and in
connected S.T. No. 9 of 2011.

3. Criminal Appeal No. 206 of 2018
has been preferred by accused, Arshad
against the same judgement passed in S.T.
No.9 of 2011.

4. Criminal Appeal No. 207 of 2018
has been preferred by accused appellants,
Farukh and Mumtaj against the same
judgment in S.T. No. 9 of 2011.

5. In the said combined judgement
of S.T. No. 957 of 2010 and S.T. No. 9 of
2011, the trial court has convicted the
appellants Sarfaraz Ali, Md. Sahid, Sadiq,
Arshad, Rashid, Farukh and Mumtaj
under Section 302 read with Section 149
I.P.C. and sentenced with death penalty
directing them to be hanged till death and
fine of Rs. 1,000/- each and in default of
payment of fine, one year additional R.I.;
under Section 148 I.P.C., all of them have
been sentenced with three years R.I. and
fine of Rs. 1,000/- and in default of
payment of fine, six months additional
S.I. each; under Section 452 I.P.C., all of
them have been sentenced with three
years' R.I. and fine of Rs. 1,000/- and in
default of payment of fine, six months S.I.
each; under Section 307 I.P.C. read with
Section 149 I.P.C., they have been
awarded life imprisonment. Accused
appellants, Sarfaraz Ali and Md. Sahid
have
been
further
convicted
and
sentenced with three years R.I. and find of
Rs. 1,000/- under Section 25 of Arms Act
in S.T. No. 958 of 2010 and S.T. No. 959
of
2010
respectively
in
the
same
judgment.

6. The trial court has passed
combined judgment in S.T. No. 957 of
2010 along with S.T. No. 9 of 2011, S.T.
No. 958 of 2010 and S.T. No. 959 of 2010
on 20.11.2018.

7. Since all the appeals mentioned
above arise out of the same common
judgment, in the interest of justice, all the
three appeals are being disposed of jointly
by us.

8. The prosecution case as disclosed
in the F.I.R. is that the brothers of
informant i.e. Naseem and Khalil (P.W.3)
had had a quarrel about seven to eight
days prior to the present occurrence with
Sadiq S/o Iqbal of the same village which
was got settled due to intervention of the
villagers but Sadiq had given a threat that
he would see them. Due to the said
animosity on 27.2.2010 at about 2:00
p.m., Sadiq (A-1), his brother, Sahid (A2) and others of his family i.e. Arshad (A3) S/o farzullah, Rashid (A-4) S/o Isfaq,
Sarfaraz (A-5) S/o Shaukat, Farukh (A-6)
S/o Islam, Mumtaj (A-7) S/o Ismail, all
residents of village, Harsauli came there,
out of whom, Sadiq was armed with
country-made gun and rest of them were
armed with country-made pistols, at the
house of informant and Sadiq abusingly
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2177
uttered 'sale naseem tujhe dekhna hai' and
entered into the informant's house and
started making fire with an intention to
kill in which his brother, Naseem, Khalil,
Raiyyan and his nephew, Sakir received
fire arm injury. Informant was also fired
upon but he saved his life by fleeing from
there and concealing himself. These
accused believing that all the brothers of
the informant and his nephew had died,
went away from there. This occurrence
was witnessed by Ilias S/o Yaqoob R/o
Makhyali who was informant's guest and
ladies of the house i.e. Vakeela, Shabnam
and Nerbun. The informant had taken
brother, Naseem to government hospital,
Muzaffarnagar where he was declared
dead while the other brother, Khalil was
fighting
for
his
life.
The
medical
examination was also conducted of
injured, Raiyyan and Sakir. Due to this
indiscriminate firing made by the accused,
terror had gripped the village and the
villagers had closed their doors and
children and ladies were running here and
there. No one could summon up courage
to stop the accused from assaulting and,
thereafter, the assailants fled away firing.

9. P.W.4, Constable Sahab Singh
has stated in examination-in-chief that on
the said written report, Exhibit Ka-1 being
given at P.S., Shahpur on 25.02.2010 at
16:30 hours (4:30 p.m.), a Case Crime
No. 163 of 2010 under Sections 147, 148,
149, 452, 307, 302 I.P.C. and under
Section 7 of Criminal Law Amendment
Act was registered against accused No.1,
Sadiq, accused no.2, Sahid S/o Iqbal,
accused
no.3,
Arshad
S/o
Farqula,
accused no.4, Rashid S/o Ishfaq, accused
no.5, Sarfaraz S/o Shaukat, accused no. 6,
Farukh S/o Islam, accused no. 7, Mumtaj
S/o Ismail all residents of village,
Harsauli,
P.S.
Shahpur,
District
Muzaffarnagar by Constable Sahab Singh
(P.W.4) who prepared chik F.I.R., Exhibit
Ka-2 and made entry of this case in G.D.,
Exhibit Ka-3 at report no. 33 at 16:30
hours on 25.02.2010.

10. Sahab Singh (P.W.4) was provided
recovery memo by the then S.H.O., Pramod
Panwar, P.W.8 on 27.02.2010 of one
country-made pistol of 12 bore, one countrymade pistol of 315 bore, two cartridges of 12
bore and one cartridge of 315 bore which
were recovered from accused, Sarfaraz Ali
and Md. Sahid respectively and on the basis
of the same, he registered Crime No. 165 of
2010 under Section 25/27 of Arms Act
against accused, Sarfaraz and Crime No. 166
of 2010 under Section 25 Arms Act against
accused Sahid. The chik F.I.R. of this case
was prepared by him which is Exhibit Ka-4
and the same is paper no. 4 in file of S.T. No.
958 of 2010 (State Vs. Sarfaraz). The photocopy of the concerned chik report is available
on the file of S.T. No. 959 of 2010, State Vs.
Sahid as paper no. 4 which is exactly the
same as Exhibit Ka-4, which is being
certified by him and marked as Exhibit Ka-5.
On the basis of Exhibit Ka-4, he made entry
in G.D. at report no. 23 at 15:10 hours,
carbon copy of which is available in the file
of S.T. No. 958 of 2010 which is paper no.
9/2 which was prepared by him in his handwriting in same process. The said carboncopy is proved by him by original G.D. and
it is marked as Exhibit Ka-6. The photo-copy
of the concerned G.D. is filed in file of S.T.
No. 959 of 2010 which is paper no. 8/2,
which this witness has certified to be the
exact carbon-copy of original G.D. and has
been marked as Exhibit Ka-7.

11.
 P.W.8,
Inspector
Pramod
Panwar has stated in examination-in-chief
that the investigation of this case was
assigned to him on 25.2.2010. On the said
2178 INDIAN LAW REPORTS ALLAHABAD SERIES
date, he had written parcha no. 1 in which
after copying the chik F.I.R. and G.D.,
recorded the statements of Constable
Sahab
Singh
and
Md.
Irfan
S/o
Shamshuddin. He inspected the place of
incident and prepared the site-plan,
recovered one empty cartridge of 12 bore,
one empty cartridge of 315 bore and took
plain and blood stained soil and prepared
its recovery memo. The site-plan is
Exhibit Ka-19. The recovery memo of
plain and blood stained soil was paper no.
8/1 in the file which was got prepared by
S.I., Sri Bagesh Kumar Sharma at the spot
at his dictation which was signed by
P.W.8 and S.I. Bagesh Kumar himself and
had already been marked as Exhibit Ka12. Similarly paper no. 8/2, Fard in
respect of recovery of one empty cartridge
of 12 bore and one empty cartridge of 315
bore connected with Crime No. 163 of
2010 were prepared at the scene of
occurrence at his dictation by S.I., Bagesh
Kumar Sharma which is already marked
as Exhibit Ka-14. One sealed bundle was
presented in court pertaining to Crime No.
163 of 2010 which was opened with the
permission of Court and out of it, one live
cartridge of 12 bore was taken out from
one panni which had mark on it as L.G.1
etc. dated 21.07.2010. On the bundle
which was a white cloth, was marked as
material exhibit-1 and the white panni
was marked as Material Exhibit-2; live
cartridge of 12 bore was marked as
material Exhibit-3 and three other empty
cartridges of 12 bore were marked as T-1,
T-2 and were material Exhibits 4 and 5
respectively. There was another empty
cartridge of 12 bore which was marked as
E.C.-1 and it was marked as material
Exhibit-6. From out of the white panni,
one live cartridge of 315 bore bearing on
it L.C.2 was taken out and was marked as
material Exhibit-7. Further from the said
panni, three blank cartridges of 315 bore
were taken out which had mark on it as
T.C.-3 and T.C.-4 etc. which were marked
as material exhibits 8 and 9 respectively.
The third empty cartridge of 315 bore was
having written on it E.C.-2 and was
marked as material Exhibit-10. From the
white panni, one envelope of grey color
was taken out on which pallets, P-1 was
written, the envelope was marked as
material Exhibit-1 and from out of the
said envelope, one pudia of white paper
was taken out which contained one small
Pellet and date 21.07.2010 was written
thereon; this paper was marked as
material Exhibit-12 and the Pellet taken
out of it was marked as material Exhibit13. One grey colored envelope, on which
white paper was pasted and deceased
Naseem S/o Shamshuddin and others was
written on it and one Pellet, which was
sent after being sealed, was taken out and
seal was also taken out and were marked
as material Exhibits 14 and 15.

12. On 26.02.2010, he received postmortem report of deceased, Naseem
which was recorded in C.D. on 27.2.2010.
On getting information from informer,
accused Sarfaraz and Md. Sahid were
arrested from their houses. From Sarfaraz,
one country-made gun of 12 bore and one
live cartridge of 12 bore were recovered
and from Sahid, one country-made pistol
of 315 bore and one live cartridge of 315
bore were recovered. The said articles
were sealed on the spot and its fard was
dictated by him to S.I. Anek Singh and
was signed by companion police officials
and accused Sarfaraz and Md. Sahid and
one copy of it was given to each accused.
The original fard is kept on file of
Sarfaraz under Section 25/27 of Arms
Act, P.S. Shahpur which is paper no. 5
and it was stated by this witness that the
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2179
same was prepared at the time when
country-made
pistol
and
gun
were
recovered from both the accused, Sarfaraz
and Sahid and the same is marked as
Exhibit Ka-20. Further this witness has
stated that out of it, one sealed bundle
bearing material Exhibit-1, one countrymade pistol and one 315 bore pistol were
taken out which were marked as material
Exhibits 14 and 15 respectively. Both
were found in running condition. The
statement of the accused were taken. On
28.2.2010, statement of injured, Raiyyan,
Shaqib, witness Ilias, Smt. Vakeela, Smt.
Shabnam, Smt. Jaitun were recorded who
stated themselves to be eye-witnesses of
the
occurrence
and
supported
the
prosecution version as mentioned in F.I.R.
On 17.03.2010, warrant under Section 82
Cr.P.C. was obtained against accused,
Farukh, Arshad, Mumtaj, Rashid and
Sadiq from court which were executed on
24.3.2010. The original inquest report and
post-mortem were copied in C.D. in
which it was recorded that Naseem had
died by bullet injury as per doctor's
version. The statement of witness of
inquest report were also recorded which
included
Yaseen
and
Naseebuddin,
Shabbir, Mehar Hasan, Subhrati. On
13.4.2010, he sent the case property, for
being tested to F.S.L., Agra through
Constable Surendra. On 21.4.2010, he
recorded statement of witnesses, Tahir
and Shaukeen who were witnesses of
recovery of two country made pistols and
also of recovery of plain and blood
stained soil. On 11.5.2010, after getting
sufficient
evidence
against
accused,
Sarfaraz and Sahid, charge-sheet was
submitted which is Exhibit Ka-21. On
11.5.2010, accused, Rashid and Arshad
surrendered before the court of C.J.M. On
18.10.2010, the statements of these two
accused were recorded in jail with the
permission of court. On 28.5.2010, the
bail application was heard of accused,
Sadiq, Mumtaj and Farukh in compliance
with High Court's order and on 10.6.2010,
their bail applications were rejected and
they were sent to jail. On 14.6.2010, their
statements were taken in jail. On
21.6.2010, all the three aforesaid accused
were taken on Police Custody Remand
(P.C.R.). On 6.7.2010, charge-sheet was
submitted against accused, Sadiq, Arshad,
Rashid, Farukh and Mumtaj which is
Exhibit Ka-23.

13. Further this witness has stated
that other sealed bundle was opened before
court on which Vidhi Vigyan Prayogshala
was written relating to Crime No. 163 of
2010 and out of it, one pant of black color,
one banyan white, one cloth of brown
color and two sealed bundles were taken
out and were marked as material Exhibits
16, 17, 18 and 19 and this witness stated
that these were the same clothes which
deceased, Naseem was wearing at the time
of occurrence. The two containers were
wrapped in cloth which was marked as
Material Exhibits 20 and 21. From out of
the said container, cement, mitti and tickli
were marked as material Exhibit-22 while
from other containers, blood stained soil
and ordinary soil was taken out and the
bundle was marked as material Exhibit-23
and container was marked as material
Exhibit-24. The blood stained soil was
marked as material Exhibit-25. From out
of the bundle, material Exhibit-1, the
country-made pistol of 315 bore and live
cartridge of 12 bore, which were recovered
from accused, Sarfaraz Ali and Md. Sahid,
were taken out regarding which, the
accused had stated that by the said
weapons, both of them had made fire upon
the deceased, Naseem and others on
25.2.2010.
2180 INDIAN LAW REPORTS ALLAHABAD SERIES

14. On the basis of evidence
gathered by the prosecution, charge under
section 148, 452, 302 read with 149 and
307 read with 149 IPC has been framed
against the accused-appellants Sarfraz and
Sahid on 20.5.20111. A separate charge
has been framed under section 148, 452,
302/149
and
307/149
IPC
against
accused-appellants Sadiq, Arshad, Rashid
and Farukh Mumtaj on the same day. On
the same day two separate charges were
framed under section 25 Arms Act; one
against the accused Sarfraz and other
against accused Sahid, to all the above
charges,
the
above-named
accused
pleaded not guilty and claimed to be tried.

15. In order to prove its case, Mohd.
Irfan as PW1, Raiyyan as PW2, Khalil
Ahmad as PW3, Sahab Singh as PW4,
S.I. Bagesh Kumar Sharma as PW5, Dr.
Pradeep Kumar Mittal as PW6, Dr.
Radheyshaym Verma as PW7, Inspector
Promod Panwar as PW8 and Dy.
Inspector Baljor Singh as PW9 have been
examined.

16. The prosecution evidence was
closed and the statement of the accused
were recorded under section 313 Cr.P.C,
in which the entire evidence gathered
against them has been stated to be false
and have taken the plea that they have
been falsely implicated due to the enmity.
In addition, the accused Sarfraz has stated
that in respect of the occurrence, which
happened with him, his father Shaukat
had lodged a case crime no. 163A of
20110 under sections 307, 504, 506 IPC,
in which charge-sheet has been submitted
against Khalil, Raiyyan and Shakir and
the case is pending in this very court. He
had used force against the complainant
side only in self defence and has filed the
copy of the FIR of the said case, which is
Exhibit Kha-1. The accused-appellant
Sahid has initially stated that he has been
implicated in the case only because of
being of the same family. The same
defence has been taken by the other coaccused Sadiq. The co-accused Arshad
has additionally stated that on 24.2.2010
the daughter of his brother-in-law Smt.
Shakeela, who was married in village
Kalyanpur, had died and after hearing the
said news, he along with his brother
Musarraf had gone there on 25.2.2010
from their village Harsauli and had
reached in village Kalyanpur at 8.00 A.M.
and remained there till 3.00 P.M.
Mohammad
Farukh
has
additionally
stated that he has medical store in the
village and on the date of the incident, he
had gone somewhere and was not
available at medical store. Subsequently,
he came to know that an occurrence had
happened near the said medical store with
Sarfraz son of Shakeel regarding which,
case crime 163A of 2010 was registered
under section 307, 504, 506 IPC, in which
charge-sheet has been submitted against
Khalil, Raiyyan and Shakir, because of
this
enmity,
he
has
been
falsely
implicated. Accused Mumtaj and Rashid
both have additionally stated that because
of them being of the same family, they
have been falsely implicated. In defence,
from the side of the accused, Dr. Radhey
Shyam Verma as DW1, Haqiqat as DW2,
S.I. Bagesh Kumar Sharma as DW3 and
Dr. Sukrampal Singh as DW4, have been
examined.

17. On the basis of the above
evidence, the trial court after having
considered the same and in the light of the
arguments made from both the sides, has
convicted the accused-appellants and
sentenced them as mentioned above. Now
we have to see in the light of the
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2181
argument made in this appeal as to
whether the said judgment needs to be
interfered with or should it remain as
such.

18. In order to prove its case, from
the side of prosecution, in support of the
prosecution version as mentioned in the
FIR, the informant Mohd. Irfan has stated
as PW1, in examination in chief, that the
occurrence took place on 25.2.2010 at
2.00 P.M. About 7-8 days prior to this
occurrence, while playing volley ball, a
quarrel had taken place between him and
his brothers Naseem and Khalil on the
one side and the accused Sadiq on the
other, in which maar-peet had also taken
place but after the intervention of some
respected persons of the village, the
matter was compromised between the
parties, but the accused Sadiq had given a
threat to his brothers that he would see
them. On 25.02.2010 when PW1 was
present at his house with his brothers
namely, Naseem, Khalil, nephew Shakir,
his mother Wakeela, Bhabi Jaiboon,
Bhabi Shabnam and Ilyas and he and his
brother, after coming from the field, were
taking off fodder to be placed in the
machine, then all of a sudden, at about
2.00 P.M. accused Sadiq armed with
country made gun and others namely,
Sahid, Arshad, Rashid, Sarfraz, Mumtaj
and Farukh, all armed with country made
pistol entered into his house and started
abusing and uttered "Maro Salo Ko" and
then all of them started making fire from
their
respective
weapons
upon
the
complainant side. In this assault, his
brother Naseem, he himself, Khalil,
Raiyyan and his nephew Shakir received
fire arm injuries while he himself fled
from there and concealed himself to save
his life. The ladies of his house raised
alarm and after hearing the sound of pistol
and guns, a lot of people had assembled
there coming from different lanes and
thereafter the accused left the scene of
occurrence giving threat. Thereafter, with
the aid of his relative and family
members, he brought his injured brothers
to police chawki first by a vehicle and one
police personnel had taken the injured
person to the District Hospital, where
Naseem was declared dead by the doctors
as soon as he was seen. His other brothers
namely, Khalil, Raiyyan and nephew
Shakir were got admitted for being
medically examined, thereafter, he had
written report of this case in the hospital
taking the same he had gone to police
station Shahpur, where he got the case
registered. He had identified Exhibit Ka-1
to be the same report, which he had given
at the police station.

19. After drawing the attention to
the above statement of this witness,
learned counsel for the appellants had
argued that the FIR was ante-timed
because medical examination of the
injured persons was conducted between
15-15 hours-15-30 hours, while the FIR
had been registered on the same day at
16.30 hours, which would show that
medical examinations of the injured, were
already conducted before lodging the FIR.

20. In cross examination, this
witness has stated that the name of his
father is Shamsuddin, who is alive. He
had three wives and from the first wife
there was no child born. From the second
wife, Iqbal was born and from the third
wife, PW1, Raiyyan, Imran, Naseem,
Saleem and Khalil were born. He cannot
tell as to how much land is possessed by
Shahmsuddin. Iqbal, who is son of
Shamsuddin, was living separate while
rest of the accused were also living
2182 INDIAN LAW REPORTS ALLAHABAD SERIES
separate. From among the children of his
mother, Naseem, Khalil and Saleem were
living at one place while others namely
Iqbal, Raiyyan, Ifran and Imran were
living in a house at a distnace leaving in
between one house. All the brothers
named above, were married.

21. He has further stated that one
case under section 307, 504, 506 IPC is
also pending in the same court, in which
the present case is pending and the
complainant of the said case is Shaukat
son of Alauddin. The injured in the said
case was accused Sharfraz son of
Shaukat. The son of Sharfraz was also
caused injuries in the said case, in the said
case, after investigation, the police had
submitted charge sheet. He has also stated
that the accused of the said case were his
real brothers namely, Naseem, Khalil and
Raiyyan and one more injured in that case
was his nephew Shakir son of Raiyyan.
He has further stated that in the present
case, his real brother Naseem has been
murdered while Raiyyan, Khalil and
Shakir have received injuries but of his
own, he has further stated that the abovenamed case under section 307 IPC was a
false one as no such occurrence has taken
place.

22. It has also been stated by this
witness that all the accused shown in this
case, they all are descendant of Kallu and
Jagira and that the father of Kalu and
Jagira was Hatham. It is right to say that
there is distance of one kms. between the
residential places of the families of Kallu
and Jagira and his (PW1) families.
Further, he has stated that all his brothers
do agricultural work but he does not know
as to how much land they possessed and
the said agricultural land is common,
however, their food is cooked separately
but they lived together. The ancestors of
accused namely Kallu and Jagira were
real brothers of the ancestors of PW1.

23. He has no knowledge as to who
were playing the volley ball in the field
and what were their names. His brothers
Naseem and Khalil had not told him the
name of those persons, who were playing
there because he had not asked for the
same. He had come to know about the
quarrel on the same day in the evening but
he had not made any written report nor
oral at the police Chauki in that regard.
Rashid son of Raja Din had met him in
the evening of the incident, who had
accompanied him to the hospital. He had
met him in the Government Hospital,
Muzaffar Nagar. At that time, there were
many people of the village including
Intijar son of Islam Uddin, his uncle's son
Subrati and many others. Imran and Iqbal
sons of Shamsuddin had also reached the
hospital and with them one police
personnel had accompanied them from
Chawki. All the injured were in the same
vehicle, which was Maruti 800 and all the
injured namely, Khalil, Raiyyan and
Shakir were sitting while Naseem was
made to lie on his lap. Soon after 5-7
minutes of the occurrence, lot of blood
was coming out from the wounds, which
had made all their clothes wet. Among
injured, only Naseem was unconscious
while rest injured were conscious and
were talking. It has further been stated
that by the time they reached Muzaffar
Nagar, they had felt that the Naseem was
still breathing but when they reached the
hospital at 3.15 PM, there Naseem was
declared dead and two persons had taken
away the dead body of Naseem. Other
three injured namely Khalil, Raiyyan and
Shakir were medically examined in front
of him.
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2183

24. On the date of incident, Farukh
was present at the said medical store
where medicines are sold. The said
medical store is situated in the house of
Meharban son of Isab Uddin and
adjoining to this medical store to the
south of it, is a lane and thereafter is
situated abadi and thereafter one or two
lanes and then is situated the main road.
From the house of accused, the medical
store of Farukh was situated about 600
meters away and there was no other
medical store in that vicinity.

25. The main door of his house is
towards east, which had a shutter, which
remained closed in the night. His house is
constructed in the area of about 600 to
700 sq.yards in which he lives and his
cattles are also kept there. On 25.2.2010
there were 5, 7 and 10 buffalos tied in that
house.
Inspection
of
the
place
of
occurrence was made by the Investigating
Officer in his presence, although he does
not recollect its date and time. Perhaps,
the Inspector was Bagish Sharma, whom
he had shown the place of incident, where
cartridges were lying and his brother
Naseem was lying. The places where
Pellet embedded in the walls, were also
shown and the place from where the
accused had run away, after having made
fire was also shown. The Investigating
Officer had not got the photography done
of the said place, where Pellet hits wall.
After verandah, there is one gallery and
on both sides of it, there are rooms. The
ladies of his house live in curtains and
thereafter of his own he has stated that he
has three storyed residential house. On the
third floor of which, ladies live. On the
date of incident as well as prior to that,
there was a door installed in the gallery of
his house, which used to remain open
during the day but the same remains,
closed in the night. After the said gallery,
lies a Sahan, in which cattle are tied. In
the said veranda, there is no residential
room and due to shed, cattle are tied in the
said veranda and there is no other kind of
construction. For going upto the third
floor, there is only one passage, which
goes through stairs. On the third floor,
there were six rooms, out of which four
had exit towards north side while rest had
exit towards west and east sides. There
was no curtain in those rooms but there
were doors in them. He had not shown
those rooms to the Investigating Officer.
In the stair case, which leads upto the
third floor from the ground floor, there is
no door at the ground floor. There is one
room constructed at the third floor, which
remains vacant and the same is used only
when guests come. In his house, after the
gallery, there is a Sahan in which cattle
are tied, which place is 'Kachcha'. Gallery
is
cemented
and
Varanda
is
also
cemented. After veranda, there is Sahan
and upon that 'kharanja' is laid. For
looking after the cattle, he has not
engaged any servant. Near the stair case,
one fodder cutting machine, which is run
by electricity, is also installed, which is
used sometimes for the said purposes. All
these
places
were
shown
to
the
Investigating Officer at the time of
inspection.

26. This witness has further stated
that after the gallery, varandah is about 11
ft. wide and after the said veranda, there is
a gallery, which is about 11 ft. long and
about 9 to 10 ft. wide. Just after the
gallery, there is a kachcha floor and about
3-4 ft. to the west of it, there is kharanja.
All the four persons namely, Khalil,
Raiyyan, Shakair and Naseem had come
from the field of Sugarcane. They had
come in a buggi, which was parked
2184 INDIAN LAW REPORTS ALLAHABAD SERIES
outside the varanda and all the above four
persons were emptying the buggi. The
Investigating Officer was shown the said
place.
On
the
said
day,
no
altercation/conversion had happened with
the accused. He has further stated that
after
the
incident
of
volley
ball,
compromise had taken place. There was
no social relationship between his family
and the family of the accused. The
accused were living about seven meters
away near Harsauli road. The agricultural
lands of the informant and the accused
were adjoining to each other. None of the
seven accused had met him since the date
of incident. He cannot tell as to from
which direction the accused had entered
the Gher, because at that time, they were
taking off the 'Gole' for the purposes of
cutting the fodder. They were cutting the
said fodder in the machine, which was
installed beneath the stair case and the
said machine was being run by hand by
Khalil and Raiyyan.

27. Further, this witness has stated that
he does not know exactly about Shakir as to
where he was and what was he doing. When
he had come after taking water, the accused
had started the incident and as soon as they
came and started abusing then Naseem, after
having seen them, ran towards the stair case.
With abusing, simultaneously all the accused
reached near the fodder cutting machine
armed with pistol while Sadiq had gun,
which was a licensed one. He had no
licensed weapon in his house. He has
knowledge about the bore of the country
made pistol. Soon after coming, the accused
started making fires but he could not see
whether they were making fires after taking
aim or not. He has seen the country made
pistol of the accused by which about 14-15
fires were made and soon after firing, the
complainant side started fleeing but accused
chased them. The place where the fodder
machine was being used, the injured
Naseem, Khalil, Raiyyan and Shakir had
received fire arm injuries, which were caused
to them while they were fleeing. Raiyyan,
Khailil and Shakir had scaled northern side
wall and had jumped over the other side of
the wall to save their lives but he cannot tell
whether the accused had chased them or not.
He had not alleged this fact in the report that
Khalil, Raiyyan and Shakir had run towards
north after scaling the wall. The Investigating
Officer has recorded his statement and to him
he had told that after getting injured by fire,
the above three persons had fled from there
after jumping over the northern, wall which
might have been 4-5 ft. high. At the time
when this occurrence happened, he (PW1)
was standing there and thereafter has stated
of his own that he was in the stair case where
there were small wall. He cannot tell as to
whether he had told the Investigating Officer
about the same nor had he mentioned the
same in his report. When the fires were being
made, he did not see as to which injured had
received fire arm injury at which place
because he was running away from there to
save his live and after fleeing, the injured
Naseem had straightway reached the third
floor of the house. All the seven accused had
not gone to the third floor making fires,
rather none of them had gone there. He has
further stated that the fire had hit the third
floor and then again stated that possibly did
not get hit. He was put a question as to
whether all the seven accused had reached
the third floor making fires, to which he
responded that Sadiq, Sahid, Rashid and
Sharfraz were going by the stair- case to the
third floor but none of them could reach. The
fire was made from the stair case.

28. Further, this witness has stated
that Naseem had received fire arm injury
on the third floor when he had turned
2 All. Sarfaraz Ali & Anr. Vs State of U.P.
2185
around to see but he could not see as whose
shot had hit Naseem. He had told the
Investigating Officer that injury was caused
on the third floor. He does not known as to
whether the blood was lying or not at the
place where machine was installed or at the
stair case, which led to third floor.
Subsequently, he had seen blood lying at the
third floor but had not seen any blood lying
near fodder cutting machine. All the accused
had made fires but cannot tell as to what was
the distance between the injured and the
accused when the fire was made. The
accused had halted for about 5-7 minutes
while the fire was being made and two
empty cartridges were found. The empty
cartridges were found near the machine but
he had not seen them himself. The said
empty cartridges were of the gun. When the
Investigating Officer had come, Naseem had
received gun shot injury on the upper portion
of his chest while Khalil had received injury
on his face and hand as well as on chest.
Shakir had received fire arm injury on his
forehead while Raiyyan had received injuries
on the finger of his left hand. Khalil had
received fire arm injury on his hand and
chest as well as on his face. Khalil, Raiyyan
and Shakir were got admitted in Muzaffar
Nagar hospital from where Shakir and
Raiyyan were discharged while Khalil was
admitted. Khalil was referred after 5-7 days
to some other hospital. He had remained in
the hospital for about 5 days. Khalil, Raiyyan
and Shakir, whether they were operated or
not after having received arm injury, he does
not know although all the three had been Xrayed but he does not know its outcome. He
has further stated that Exhibit Ka-1 was
written by him in the hospital at 3.30 p.m. on
the date of incident.

29. This witness has further stated
that Ilias S/o Yakoob R/o Makhiali was
real brother-in-law (sala) of his deceased
brother Naseem and further stated on his
own that the wife of deceased, Naseem
i.e. Shabnam started living with Rashid
S/o Raiyyan after the death of Naseem
meaning thereby that she had contracted
marriage with him. He was also real
nephew of deceased, Naseem.

30. He had not given information of
this occurrence to any of his relatives. The
occurrence had happened at about 2 p.m.
but he did not make any mention of it to
anyone nor did he divulge the names of
the accused, although he went on to say
that everyone had seen the occurrence and
he had lodged the report as well by name.

31. He has further stated that
indiscriminate firing was made by the
accused, no fire arm injury was caused to
any of the animals which were tied there
in the 'gher'. The marks of bullets had
been caused in the walls particularly in
northern wall where 5 to 7 bullets had hit.
Such marks were shown by him to the
I.O. but he does not recollect whether
empty bullets were lying there or not. He
had saved his life by concealing himself
in room at the second floor and had closed
the doors. There was no lady in the said
room as the ladies used to live in the
rooms on the second floor. The doors of
the rooms were not closed. On the second
floor there were six rooms constructed out
of which two were towards east and rest
were towards south. The accused had only
made fires upon him although he did not
utter any word except that Naseem was
abused by them. The neighbours had
closed the doors of their houses and none
of them had come to the spot at the time
of occurrence and had reached only after
the occurrence. Further he has stated that
in respect of Sarfaraz having received
injuries, he was told after he had lodged
2186 INDIAN LAW REPORTS ALLAHABAD SERIES
the report, by S.O. but he does not
recollect the exact time when it was told.
The case in respect of Sarfaraz having
received injuries was also being contested
in the same court in which his real
brothers Khalil, Raiyyan and his nephew,
Shakir had got themselves bailed out. He
has no knowledge whether any medical
board
was
constituted
for
medical
examination of Sarfaraz nor does he has
knowledge whether Sarfaraz had received
any treatment at Meerut Medical College
after having received fire arm injuries.

32. He has further stated that on the
stair-case railing has been installed after
raising wall of bricks and the said railing
begins from the side where machine was
installed. The stair-case was three feet
wide. When the accused reached on the
third floor, they were continuously firing
while
chasing
Naseem
(deceased).
Accused
ascended
stair-case
while
making fires. Naseem did not receive any
injury till he reached the third floor and
whatever injuries were received by him
were caused to him only when he reached
the third floor. Some accused had stayed
back near the machine but he cannot say
whether they were making fires or not. In
his memory, no empty cartridge was
found on the third floor. How the Naseem
was found lying i.e. whether with face
down or face up etc., he cannot tell.
Accused were continuously making fire
upon Naseem so that no one could come
near them. When the accused had left, his
mother,
brothers
and
various other
persons had taken Naseem to the ground
floor in injured condition where he was
made to lie on a cot. Naseem was not
speaking anything; his clothes were
smeared with blood. When Naseem was
lying on the cot, the remaining injured,
Khalil, Raiyyan and Shakir were also
brought there by the villagers after lifting
them.