# Tahir & Ors. (In Jail) v. State of U.P - **Citation:** (2023) 4 ILRA 1461 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-03-24 - **Case number:** Criminal Appeal No. 1335 of 2009 - **Bench:** Mrs. Sunita Agarwal, Umesh Chandra Sharma - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tahir-ors-in-jail-v-state-of-u-p-50073 - **Pages:** 29 ## Headnote Law - Criminal Appeal- Conviction under Sections 302 read with Section 147, 148 and 149 IPC- eye witness- minor delay is not inordinate delay-not fatal for prosecution-delay in sending FIR to area magistrate is not material- three eye witnesses- no need to prove motive-overt act in pursuance of common object-every member of that assembly would be constructively liable- different roles do not matter-Section 149 creates a separate and distinct offence- all appellants proved to be members of alleged unlawful assembly- merit of case is not adversely affected by minor variations- testimony of witness cannot be disbelieved on the basis of minor discrepancies-prosecution succesfulin proving its case beyond the reasonable doubt- appeal dismissed. (Para 58, 60, 62, 76, 77, 78, 84, 124) HELD: In Anil Rai Vs. State of Bihar, (2001) 7 SCC 318 and in State of Punjab Vs. Hakam Singh, (2005) 7 SCC 408 it has been held that the delay in sending copy of the F.I.R. to the area Magistrate is not material where the F.I.R. is shown to have been lodged promptly and investigation had been started on that basis. The delay is not material in the event when the prosecution has given cogent and reasonable explanation for it. (Para 62) For an overt act in pursuance of the common object of any member of an unlawful assembly, every member of that assembly would be constructively liable for such acts also where 1462 INDIAN LAW REPORTS ALLAHABAD SERIES such acts constitute offence. Hitting the deceased by the accused Hasan with the stick or stabbing by accused Nazuk and Nazim by razor and knife and use of firearm by Tahir, Bhaiyan and Pappu @ Kamina establishes that all the accused persons shared a common object. From the above evidence, presence and participation of every accused as member of the unlawful assembly is clearly established. (Para 76) In this case, all the appellants proved to be member of the alleged unlawful assembly having deadly weapons except the accused Hasan who was having lathi in his hand. Lathi was used in putting down the deceased and attacks was made from the lathi. There might be no fatal injury because of the attack from lathi but being member of the unlawful assembly having common object of killing the deceased, accused Hasan is also liable to be convicted for the offence of murder under section 302 IPC with the aid of Section 149. (Para 84) The prosecution has been succesful proving the case against all the accused persons beyond reasonable doubt under Sections 147, 148, 302 read with Section 149 IPC. The appellants could not create any doubt and could not establish any ground on which the conviction recorded under the aforesaid charges could be reversed. Though it is a case of brutal murder even then the trial court has awarded only minimum sentence which cannot be reversed. Thus this Court concludes that the appeals in respect of conviction and sentencing are devoid of merit and are liable to be dismissed. (Para 124) Appeal dismissed. (E-14) List of Cases cited: 1.State of Rajasthan Vs Daud Khan, 2015 0 Supreme (SC) 1041 ## Text _Characters 0–39,914 of 97,193. This is a partial read: ask again with offset=39914 for what follows._ 4 All. Tahir & Ors. Vs. State of U.P. 1461 the deceased. This aspect has also been clearly overlooked by the court below. 101. In view of the discussions and deliberations made above, we come to the inescapable conclusion on the basis of appraisal of evidence led by the prosecution that it has failed to establish the guilt of the accused appellants beyond doubt. Consequently, these two appeals are allowed and the conviction and death sentence awarded to the accused appellants Rakesh Pandey and Yashwant Chaubey vide judgment and order dated 10.2.2020/11.02.2020, passed by the Additional Sessions Judge, Court No. 1, Mau in Sessions Trial No. 75 of 1996, arising out of Case Crime No. 83 of 1996, under Sections 147, 148, 201 and 302/34/149 IPC, Police Station - Sarai Lakhansi, District - Mau, is reversed. The death reference No. 4 of 2020 is answered, accordingly. 102. The accused-appellants shall be set at liberty, forthwith, unless they are wanted in any other case, subject to compliance of Section 437A Cr.P.C. ---------- (2023) 4 ILRA 1461 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 24.03.2023 BEFORE THE HON'BLE MRS. SUNITA AGARWAL, J. THE HON'BLE UMESH CHANDRA SHARMA, J. Criminal Appeal No. 1335 of 2009 With Criminal Appeal No. 1209 of 2009 & 1334 of 2009 Tahir & Ors. ...Appellants (In Jail) Versus State of U.P. ...Opposite Party Counsel for the Appellant: Sri P.C. Srivastava, Sri A.M. Zaidi, Sri Abhay Kumar Srivastava, Sri Ajay Kumar Singh, Sri Ashwani Kumar Pandey, Sri Brij Raj Singh, Dr. Arun Srivastava, Sri Haji Kamal Khan, Sri Mohd. Yaseen, Sri Nazrul Islam Jafri, Sri Rajesh Kumar Mishra, Sri Shahid Ali Siddiqui, Sri Sushil Kumar Pal, Sri Mohd. Samiuzzaman Khan Counsel for the Opposite Party: G.A. Criminal Law - Criminal Appeal- Conviction under Sections 302 read with Section 147, 148 and 149 IPC- eye witness- minor delay is not inordinate delay-not fatal for prosecution-delay in sending FIR to area magistrate is not material- three eye witnesses- no need to prove motive-overt act in pursuance of common object-every member of that assembly would be constructively liable- different roles do not matter-Section 149 creates a separate and distinct offence- all appellants proved to be members of alleged unlawful assembly- merit of case is not adversely affected by minor variations- testimony of witness cannot be disbelieved on the basis of minor discrepancies-prosecution succesfulin proving its case beyond the reasonable doubt- appeal dismissed. (Para 58, 60, 62, 76, 77, 78, 84, 124) HELD: In Anil Rai Vs. State of Bihar, (2001) 7 SCC 318 and in State of Punjab Vs. Hakam Singh, (2005) 7 SCC 408 it has been held that the delay in sending copy of the F.I.R. to the area Magistrate is not material where the F.I.R. is shown to have been lodged promptly and investigation had been started on that basis. The delay is not material in the event when the prosecution has given cogent and reasonable explanation for it. (Para 62) For an overt act in pursuance of the common object of any member of an unlawful assembly, every member of that assembly would be constructively liable for such acts also where 1462 INDIAN LAW REPORTS ALLAHABAD SERIES such acts constitute offence. Hitting the deceased by the accused Hasan with the stick or stabbing by accused Nazuk and Nazim by razor and knife and use of firearm by Tahir, Bhaiyan and Pappu @ Kamina establishes that all the accused persons shared a common object. From the above evidence, presence and participation of every accused as member of the unlawful assembly is clearly established. (Para 76) In this case, all the appellants proved to be member of the alleged unlawful assembly having deadly weapons except the accused Hasan who was having lathi in his hand. Lathi was used in putting down the deceased and attacks was made from the lathi. There might be no fatal injury because of the attack from lathi but being member of the unlawful assembly having common object of killing the deceased, accused Hasan is also liable to be convicted for the offence of murder under section 302 IPC with the aid of Section 149. (Para 84) The prosecution has been succesful proving the case against all the accused persons beyond reasonable doubt under Sections 147, 148, 302 read with Section 149 IPC. The appellants could not create any doubt and could not establish any ground on which the conviction recorded under the aforesaid charges could be reversed. Though it is a case of brutal murder even then the trial court has awarded only minimum sentence which cannot be reversed. Thus this Court concludes that the appeals in respect of conviction and sentencing are devoid of merit and are liable to be dismissed. (Para 124) Appeal dismissed. (E-14) List of Cases cited: 1.State of Rajasthan Vs Daud Khan, 2015 0 Supreme (SC) 1041 2. Anil Rai Vs St. of Bih., (2001) 7 SCC 318 3.St. of Pun. Vs Hakam Singh, (2005) 7 SCC 408 4.Nagraj Vs St., (2015) 4 SCC 739 5.Wakkar Vs St. of U.P, 2011 (2) ALJ 452 (SC) 6.Nathuni Yadav Vs St. of Bih., (1998) 9 SCC 238 7. Lalji Vs State, AIR 1989 SC 754 8. Bhudeo Mandal Vs St., AIR 1981 SC 1219 9.Fatte Vs State, AIR 1979 SC 1504 10.Vishambar Bhagat Vs State, AIR 1971 SC 2381 11.Maslati Vs St. of UP, AIR 1965 SC 202 12. State Vs Krishan Chand, AIR 2004 SC 4671 13.Bhagwan Jagannath Markad Vs St. of Mah., (2016) 10 SCC 537 14.Ramesh Vs St. of UP, (2009) 15 SCC 513 15. Maqsoodan Vs St. of UP, (1983) 1 SCC 218 16.Nankaunoo Vs St. of UP, (2016) 3 SCC 317 17.Ramesh Harjan Vs St. of UP, (2012) 5 SCC 777 18. Leela Ram Vs St. f Har. (1999) 9 SCC 525 19.Mukesh Vs State (NCT) of Del. & ors., AIR 2017 SC 2161 20.Khem Ram Vs St. of Himachal Pradesh, (2018) 1 SCC 202 21. Dashrath Singh Vs St. of UP, (2004) 7 SCC 408 22.St. of Pun. Vs Hakam Singh, (2005) 7 SCC 408 23.Rahul Mishra Vs St. of Utta. AIR 2015 SC 3043 24.V.K. Mishra Vs St. of Uttar., (2015) 9 SCC 588 25.Makbool Vs St. of Andhra Pradesh, AIR 2011 SC 184 26.Shiv Shankar Singh Vs St. of Jhar., 2011 CrLJ 2139 (SC) 4 All. Tahir & Ors. Vs. State of U.P. 1463 27.Dhanaj Singh Vs State of Pun., (2004) 3 SCC 654 28. Jagdish Murao Vs St. of UP, 2006 0 Supreme (SC) 775 29.Maruti Rama Naik Vs St. of Mah., 2003 0 Supreme (SC) 863 30.Sampath Kumar Vs Inspector of Police, Krishnagiri, 2012 0 Supreme (SC) 214 31.St. of UP Vs Parasuram Yadav, 2005 0 Supreme (All) 1309 32.St. of Raj. Vs Daud Khan, 2015 0 Supreme (SC) 1041 33.Khima Vikamshi Vs St. of Guj., 2003 0 Supreme (SC) 363 34.Ganesh Bhawan Patel & anr. Vs St. of Guj., 1978 0 Supreme (SC) 323 35.Mahavir Singh Vs St. of Har., (2014) 6 SCC 716 36.Harendra Vs St. of Assam, AIR 2008 SC 2467 37.Himanchal Prashasan Vs Om Prakash, AIR 1972 SC 975 (Delivered by Hon'ble Umesh Chandra Sharma, J.) 1. These criminal appeals have been preferred by the appellants against the common judgment and order of conviction and sentence passed by the Court of Special Judge (SC/ST Act), Bareilly, passed in Sessions Trial No.249 of 2002, under Section 302 read with Sections 147, 148, 302, 149 IPC, Section 3(2)(5) of the Scheduled Caste (SC) and Scheduled Tribe (ST) (Prevention of Attrocities) Act, 1989 (which shall be called in later part of judgment as SC/ST Act) and Section 25 and 4/25 Arms Act, Police Station Kila, District Bareilly on 19.02.2009 in which the trial court convicted the accused persons only under Sections 147, 148, 302 and 149 IPC and acquitted from the charges under Section 4/25, Section 3/25 Arms Act and Section 3 (2) (5) SC/ST Act, hence they are being decided together. 2. In brief, facts of the case are that on 29.09.2001 the complainant/informant, Ramesh Chandra Bharti, PW-1 moved a written complaint on 24.09.2001 at 08:25 p.m. that on 24.09.2001 at 07:00 p.m. he (complainant) was returning to his house with his brother Suresh Chandra Bharti from their shop and when they reached in front of the shop of Dr. R.K. Sharma, Om Prakash, Hawaldaar and Ganga Ram of his locality met them, he stopped and started talking. In the meantime, his brother moved forward about 5-6 steps where Tahir, Bhaiyan, Pappu with pistols, in their hands, Nazuk and Nazim with knives and Hasan with batten (danda) stopped him. Tahir and Hasan caught hold of Suresh and threw him down with intention to kill him, Tahir, Bhaiyan and Pappu @ Kamina fired bullets from hand held pistols, Nazuk and Nazim attacked with knives and Hasan beaten him with a stick. His brother fell on the spot, there was chaos, people walking on the road spared by firing by the accused, the people closed their shops and doors and windows of their houses. Out of fear, when they challenged, the accused ran away towards the New Basti. They recognized the accused persons committing the offence and running away well in the light of the electric bulbs. With the help of the people, he took him to the district hospital where the doctor declared him dead, thereafter he went to the concerned police station keeping the dead body to the mortuary. He requested to take action against the accused persons. 3. After the F.I.R. was lodged, the Investigating Officer (which shall be called 1464 INDIAN LAW REPORTS ALLAHABAD SERIES later on as 'I.O.') started the investigation. The I.O. took the blood stained soil, empty cartridge of 315 bore from the place of occurrence in his possession and arrested the accused Pappu @ Kamina on 26.09.2001, recovered country-made pistol of 315 bore and live cartridges of the same bore. The inquest report Ex. K-19 was prepared on the same day from 21:30 p.m. to 23:00 p.m. The postmortem was done by Dr. G.D. Katiyar on 25.09.2001 at 03:15 a.m. He found firearm wounds, incised wounds and abrasions. According to him, death of the deceased was occurred due to shock and hemorrhage on account of ante mortem injuries. The I.O, C.O. (City) Mr. Dinesh Singh collected the post mortem report Ex.Ka-4, prepared the spot map Ex.K-16, recorded the statements of the complainant and the witnesses, arrested the accused persons, recovered country-made pistols and knives from their custody, prepared spot map with regard to recovery of weapons, took permission to prosecute the accused persons under Action 25 Arms Act and filed the charge sheets as Ex.K-12, Ex.K-29, Ex.K-30, Ex.K-31 and Ex.K-32 against five accused persons under Sections 25 and 4/25 Arms Act and charge sheet Ex.K-18 against all the six accused persons under the aforesaid Sections of the I.P.C. and the S.C./S.T. Act. 4. The prosecution has examined the following witnesses:- (i) PW-1, Ramesh Chandra Bharti, complainant/informant; (ii) PW-2, Om Prakash; (iii) PW-3, Ganga Ram; (iv) PW-4, Sewak Ram; (v) PW-5, Dharampal; (vi) PW-6, Dr. G.D. Katiyar; (vii) PW-7, Head Constable Ram Singh; (viii) PW-8, I.O. Nawab Singh; (ix) PW-9, S.I. Gurunam Singh, I.O. U/S 25 Arms Act; (x) PW-10, Dinesh Singh, C.O.-II, Bareilly, who conducted the case as main I.O; (xi) PW-11, Sanjai Kumar Singh, S.O, who conducted inquest; (xii) PW-12, S.I. Nek Ram Singh, who investigated the case U/S 25 Arms Act; and (xiii) PW-13, S.I. Anwar Afaq who prepared the recovery memo of country-made pistol. 5. Prosecution has produced and proved the following documents in support of the prosecution case:- (i) Ex.K-1, written complaint by the complainant, PW-1; (ii) Ex.K-2, recovery memo of razor; (ii) Ex.K-3, recovery memo of knife; (iv) Ex.K-4, copy of chik FIR and postmortem report; (v) Ex.K-5 and Ex.Ka-6, G.D; (vi) Ex.K-7, chik FIR u/s 25 Arms Act; (vii) Ex.K-8, G.D; (ix) Ex.K-9 G.D. Corban Copy and Ex.K-10,recovery memos; (xi) Ex.K-11, spot map; (xii) Ex.K-12, charge sheet under Section 25 Arms Act; (xiii) Ex.K-13, prosecution sanction; (xiv) Ex.K-14, recovery memo of blood stained and plain soil; (xv) Ex.K-15,recovery memo of country-made pistol and empty cartridge; (xvi) Ex.K-16, spot map; (xvii) Ex.K-17, spot map; (xviii) Ex.K-18, charge sheet under Sections 147, 148, 302, 149 IPC and Sections 3(2)(5) of SC/ST Act; (xix) Ex.K19, inquest report; (xx) Ex.Ka-20 TO Ex. K-23, papers annexed with the inquest (xxi) Ex.K-24, speciment seal; (xxv) Ex. K-25, spot map; (xxvi) Ex.Ka-26 to Ex.Ka-28, prosecution sanction; (xxix) Ex.K-29 to Ex.Ka-32, charge sheets; (xxxiii) Ex.K-33, chik F.I.R; (xxxiv) Ex.K-34, Carban copy G.D. 6. The appellant has taken ground that the trial court has not considered the material available on record and illegally convicted and sentenced them. The sentence is against the weight of evidence 4 All. Tahir & Ors. Vs. State of U.P. 1465 on record. It is not based on cogent finding and the impugned order is illegal and bad in law. No offence under Sections 302, 149, 139 IPC is made out and there is nothing on record to prove the appellants guilty for the alleged offence. Hence, the impugned judgement and order be set aside and the appellants be acquitted. 7. In Criminal Appeal No.1209 of 2009, appellant Hasan and in Criminal Appeal No.1334 of 2009, appellants Nazuk and Nazim have taken similar grounds, hence there is no need to repeat the same again. 8. In brief, the evidences of the witnesses are produced herein below:- 9. PW-1, Ramesh Chandra Bharti, younger brother of the deceased Suresh Chandra Bharti, has deposed that he is washerman by caste. On 24.09.2001 at about 07:00 p.m. he and his brother Suresh Chadra Bharti were going to their house after shutting down their tent shop. When they reached at the crossing of the road, Om Prakash, Ganga Ram, Narendra @ Hawaldar met them. He started talking with them. In the meantime, his brother went forward for 5 to 6 steps. When he turned, he saw that Tahir and Hasan threw down his brother on the ground. Tahir, Bhaiyan, Pappu @ Kamina fired at his brother and Nazuk and Nazim attacked with knives. Accused Hasan attacked with stick. There was no one other than these six people. Bhaiyan and Tahir had a quarrel with the deceased and they had threatened to see him. His brother had told this fact to him and his family, but they did not pay any attention to this incident. Apart from him Om Prakash, Narendra and Ganga Ram had also seen the incident. The injured was taken to hospital where the doctor declared him dead. The witness recognized his signature and proved the written complaint Ex.A-1 and also deposed that the accused are the residents of his locality. He knew them well. In cross-examination, this witness had deposed that the witnesses had seen the incident with him. Shops were opened, shopkeepers did not see the incident as they were busy in their work. There were total 3-4 shops out of which one was of Dr. R.K. Sharma, one belonged to Nathu. There was a shop of Kallu. There was a tailoring shop. This incident took place at a distance of about 50 steps to the south from Kallu's shop. From the Nathu's shop, the incident site was about 60 steps west. His clothes were also stained with blood. He brought the injured to his shop in e-rikshaw and had taken to the District Hospital in a police jeep. He himself said that first of all, he informed the police station where S.S.I. Tejendra Kumar Chaudhary said first you should take your brother to the District Hospital, it took about ten minutes to reach P.S. Quila. He went inside where the report was written. He did not talk with the Head Muharrir but told S.S.I. with whom he was not acqainted, he had not given any information to Quila Chauki. 10. He did not show the blood on his clothes to the I.O. In panic even later he did not give those clothes to the police. He took a rickshaw and was sitting in it carrying his injured brother. Jeep was found at tiraha, from there he got down from rickshaw and went through the jeep. This tiraha is 100-125 steps north from his shop. His injured brother had fainted. Three-four persons of his locality had put on his brother at rickshaw, he was panicked so he could not tell their name. 11. On being asked by the doctor he had told him his name. Complaint was read 1466 INDIAN LAW REPORTS ALLAHABAD SERIES over by the Inspector. He came home from the police station and saw that several persons were present on the spot. He was interrogated by the police. He could not say whether they took over the blood stained soil at that time or not. His house would be about 100-150 steps away from the place of occurrence towards the west direction. The police had taken blood stained soil in front of him from the place of the incident, when he reached it was quarter to nine in the night. The people/persons present in the house were weeping. The police came to call him and alongwith the police he went to the district hospital without staying at the place of the incident. He himself said that he went to the hospital from his vehicle, many policemen specially police officer had come to his house. He had written the complaint sitting at the police station. He alone reached at the hospital from home, there Om Prakash, Rajendra, Om Pal, Ganga Ram were present. They were present at the time of the inquest also. He had signed the inquest report. He confirmed the opinion of panchas that the deceased had died due to injury caused by knife and the fire arms. He had written and signed it. The injury was also caused from the stick. He could not know whether he had informed the police officials as to from which weapons, the bullets were fired. The injury was caused by stick, which is not written in the inquest. He remained in the hospital up to 10:00-11:00 p.m. He and the deceased both used to sit at the tent house and did not do any other work. It used to open at 09:00 a.m. and used to be closed at 06:30 - 07:00 p.m. In the evening there was no work at his shop on the day of the incident, so labourers and contractors were not present there. 12. Most of the time he and the deceased used to go together after closing the shop. Some times the brother used to go home early. Even four days before the incident his brother Suresh had gone home alone. The deceased had a fight four days before the incident with some of the accused. Except that, he did not know about a fight that happened ever. 13. The houses of the accused persons are in between 05 to 200 steps away from his house. 14. He received the information regarding arguments between the accused and the deceased same day. After hearing the complaint, he said that the information regarding the earlier fight has not been mentioned. He has also not informed this fact to the I.O. At the time of incident when he looked back for the first time, the accused were in the west direction from him and they were killing his brother. Near the place of occurrence, there was a house of Zakir, Muntyaz sons of Mukhtiyar, Tahir, Tufail and Sajjad. There were also the houses of Nanhey, Munni and Asgar where the people lived in the houses. In the state of panic, he did not see anyone in these houses at the time and place of the incident. 15. There was two feet wide slab over the drain near the place of occurrence. At that time he and his deceased brother were present on the slab, but had not crossed it. There was no blood on this slab. Because of night he could not see whether the blood had spilled on it or not. 16. The I.O. had prepared the map before him. This slab falls on turning west from the south north road. May be 15 step from this north south road. 17. When he saw Suresh Chandra for the first time, he was lying on the ground 4 All. Tahir & Ors. Vs. State of U.P. 1467 and the accused were killing him. He was thrown on the ground after being beaten with a stick, he cannot tell the number of attacks by sticks, length and thickness or shape of the stick. The whole incident happened in 2-21⁄2 minutes, he did not see the injuries on his brother's body at the time of the incident but had seen many injuries on him in the hospital. He could not count how many shots were fired on the spot. The shots were fired from a distance of 1, 1 1⁄2 - 2 steps. The bullet injuries on Suresh Chandra's body had occurred after falling on the ground. Except for the sticks, all other injuries were inflicted on him only after he fell on the ground. Two accused persons had attacked 7 - 7, 8 - 8 times with knife. They were killing by stabbing the knife again and again. After hitting Suresh Chandra with fire, Nazuk and Nazim caught Suresh Chandra and killed him with a knife. They had not dropped the deceased on the ground after inflicting knife and bullet injuries. Later on no attack was done with stick. After the incident the accused fled away in the north direction towards the New Basti. He did not try to catch the accused persons, as they had revolver, he had not seen the accused persons brandishing the knife after the incident. He had seen the people of neighborhood, who were closing the doors and windows of their houses, people were coming on the road at the time of the incident. Before the incident, bothers Nasir and Sakir used to live in his neighbourhood. He did not know whether they had sold their house or not. He did not know that there was dispute and quarrel between the deceased and both of them. It may be correct but it was wrong to say that due to terror of the deceased, they had left their houses. The witness denied that the deceased was involved in illegal trade of VCR and liquor and would have also taken Rs.5,000/- from the accused Pappu in some installments and could not repay the money. This witness admits that before the incident in the marriage of Kallu's daughter who is father of the accused Nazuk, articles from his tent house were sent. The witness denied that Kallu did not pay the full amount for the articles due to which the deceased had a fight with Kallu. He expressed ignorance regarding police case against Pappu. He admits that the witnesses are from his community, but denied any kinship with them. This witness had denied suggestions given by accused side. 18. This witness was independently cross-examined for the accused Hasan in which he deposed that in the inquest, the cause of death has not been mentioned having been caused by the stick. 19. PW-2, Om Prakash an independent eye-witness, has deposed that he knew the informant, his brother and the accused persons very well. The accused persons Nazim, Nazuk, Tahir, Bhaiyan, Pappu and Hasan were the residents of Quila Cantt. The incident was dated 24.09.2001, it was about 07:00 p.m. He met Ramesh Chandra near Dr. R.K. Sharma's shop at tiraha. They started conversation, on asking he told that he was going after closing the shop. He asked about Suresh Chandra, he told that he had gone ahead. After this, he heard the sound of gun firing when he looked after, Suresh Chandra was being stabbed by Nazim and Nazuk. Pappu, Tahir and Bhaiyan were making fires at Suresh Chandra with pistols and Hasan was hitting with a stick. Apart from him Ramesh, Ganga Ram and Narendra were also present there and when they tried to make-a-noise there was a chaos. Shutters started falling, the shopkeepers started closing their shops and people started 1468 INDIAN LAW REPORTS ALLAHABAD SERIES closing doors and windows of their houses. After that, the accused fled away towards the north of new basti. He saw that Suresh Chandra was suffering like a fish lying on the track of Dr. R.K. Sharma's shop. He got Suresh Chandra loaded in rickshaw on the advice of Ramesh Chandra. He did not go with rickshaw but Ramesh went to the District Hospital with the Rickshaw. Later on when he reached the district hospital, Suresh Chandra was dead and his panchnama had been filled up. 20. In the cross-examination the witness denied any kinship with the informant and the deceased, and admitted that there are 5-6 houses between his and Ramesh Chandra's house. He deposed that in relation to this case, the I.O. had taken his statement. He did not tell the C.O. that he met Ramesh Chandra and had a conversation with him. These facts were also not mentioned in his statement under Section 161 Cr.P.C. He admitted that he and Ramesh belong to same community. There was a distance of 40 steps between the house of the accused and his house. After the incident he tried to catch the accused but they fled away from the place of the incident. They immediately called the police which had arrived there at around 07:00-07:15 p.m, eye-witnesses Ganga Ram and Narendra were present amongst his acquaintances. These were people who saw the incident. Ganga Ram and Narendra went with him to the district hospital in a rickshaw. 21. He deposed that he was the shop keeper during the days of the incident, Narendra was the driver. Ganga Ram works as a washerman in a kiosk (wooden made shop) which was closed at the time of the incident. Narendra was driving his own tempo from Railway Junction to C.B. Ganj, Fatehganj. He used to come back with tempo at around 05:00-06:30 p.m. and leave home at around 07:00 a.m. in the morning. His own grocery shop is about 100 steps away towards the west direction from the place of the incident. It used to close at about 101⁄2-11 p.m. At night he met Ramesh on the spot and thereafer they met in the hospital at around 09:30 p.m. According to this witness, he had not picked-up the injured from the spot though it was mentioned in his statement under Section 161 CrPC, which he denied. 22. He heard the sound of firing and looked back, but it was not written in the statement under Section 161 CrPC. On being asked he said that he could not say the reason. The witness further replied that he recognized all the accused persons by their names and faces. At the time of the incident sun had set. The incident took place about half an hour after the sun had set. The dead body was shifted from emergency ward to mortuary before he reached. The mortuary ward was opened at that time and it was about 09:00-9:30 p.m. He asked to sign the inquest report which was being filled up at that time and he signed on it. 23. At the time of the incident, Suresh was wearing pant-shirt and also at the time of the inquest. Slippers of the deceased were left at the place of the incident. The dead body was barefoot at the time of the inquest. He did not remember the day of the incident, but knew the date. 24. He was alone when Ramesh met him before the incident and within a minute, Ganga Ram and Narendra also come there. Ganga Ram and Narendra came there and stood quietly while he was talking to Ramesh. The place where he was 4 All. Tahir & Ors. Vs. State of U.P. 1469 standing would be 5-6 steps away from the spot in the west direction. From there he, Ramesh, Ganga Ram and Narendra saw the incident. There was a trijunction near the incident site, where the road went in the north - south and west directions, where the road turn in the west direction, there was a drain with slab in the north - south direction. 25. On being questioned regarding manner of attack, this witness deposed that the accused, who fired at Ramesh from pistol, were standing about 2-21⁄2 steps west of Suresh. Suresh was first fired after that he was stabbed. He could not tell the number of firing, and injuries occurred to the deceased. The incident happened within 1-11⁄2 or 2 minutes. The witness denied the kinship with the deceased. He had also denied the suggestions given by the defence counsel. 26. This witness had denied that Hasan was wrongly implicated in this case. 27. PW-3, Ganga Ram deposed that it was 24.09.2001 at about 07:00-07:15 p.m, Ramesh accompanied by his brother Suresh were going towards their home after closing their shop. He met with them at the crossing bridge. Om Prakash and Narendra were also there. At that time Suresh went about six steps ahead of them, he started talking to Ramesh. All the accused persons already known to him came there, Hasan and Tahir dropped Suresh in front of Dr. R.K. Sharma's shop and started hitting him after surrounding. Bhaiyan, Tahir and Pappu @ Kamina had pistols, Nazuk and Nazim had knives and Hasan had a stick. Suresh had received bullet, knife and stick injuries. There was chaos when the bullets were fired. Shop keepers and hockers started closing their shops. He picked up Suresh and got him loaded on rickshaw. After this he went to Suresh's house to inform about the incident. He saw and recognized the accused in the street light. The inquest of the dead body was prepared before him and he recognized his signature on it. 28. On being cross-examined the witness expressed ignorance about the recovery of weapons from the accused persons at the time of their arrest, but answered that they were arrested after 5-6 days from the incident. This witness denied that at the time of incident he was working in Gold soap factory, Nainital Road, Bareilly. He further deposed that at that time he used to sell nan-khatai (biscuits), before that he used to iron the clothes. This witness further deposed that he did not take Suresh to the District Hospital but after getting him loaded on a rickshaw, he went to his house to inform about the incident. This witness could not remember whether he had given any statement to the I.O. or not but deposed that many policemen talked to him about this incident. On the second day of the incident, the police interrogated him. This witness disowned his statement under Section 161 Cr.P.C that Suresh was taken to the district hospital from the spot where the doctors declared him dead. According to this witness, no policeman met with him in the night of the incident, but he affirmed giving information of the incident at the house of Suresh. After giving information, he went to his house where he stayed about 1-11⁄2 hours and after that he went to the district hospital by rickshaw alone and reached there at around 09:00 to 09:15 p.m. On the request of Remesh, he had signed the inquest report at about the quarter past 11:00 p.m, it might have been 10:00 O'clock, he did not have a watch, no one 1470 INDIAN LAW REPORTS ALLAHABAD SERIES had read the inquest to him. He stayed in the hospital at about 11:00 p.m. in the night. 29. Next day, the I.O. visited the spot at about 11:00-12:00 O'clock. The I.O. did not prepare any map in front of him, there were a tea shop, a doctor's shop, tailor and a grocery shop near the incident site. All those shops were opened at the time of the incident. No shop keepers had come to the spot at the time of the incident. Natthu Khan's grocery shop was about 08-10 steps away from the place of the incident. All those shops were closed at the time of firing. On the east side, at a distance of about six steps, standing over the slab he was looking at Ramesh. 30. In the hospital, except the eyewitnesses, Om Prakash and Ramesh, no one else was present. He did not know the name of the Sub-Inspector present there. He denied the statement recorded by the I.O. that the inquest was prepared by the Inspector, Rajendra Singh Chaudhary before him and Onkar Gangwar, Rajendra Sharma and Ramesh Chandra Bharti. The Inspector who prepared the inquest report had not asked him as to whether any eyewitness was present or not. The deceased died due to the injuries caused by the knife and the firearm. Postmortem report was not written before him. He was only asked to sign the inquest report. Duty of panch was not conveyed to him by the Inspector. On the day of occurrence, he had finished the ironing work by 06.30 p.m. After parking the cart (thela) before the house he walked towards the bridge for purchasing. When he reached there, Ramesh and Om Prakash were talking with each other. He could not remember the fact that when he reached at trijunction. Om Prakash, Hawaldar and Ramesh met there and started conversation. It was incorrect that when Ramesh met him, Suresh was also standing there, but he had gone 5-6 steps ahead at that time. He was not looking at Suresh while talking to Ramesh. 31. He had hardly talked to Ramesh for about half a minute when he heard the sounds of fire. While talking they were standing on the slab lying on the drain. The incident did not occur there. It happened in front of the shop of Dr. R.K. Sharma. There was blood on the spot. When Suresh was picked up and put on the rikshaw, blood also fell. He saw blood where Suresh was killed. About 6 steps towards the west there was shop of Dr. R.K. Sharma. The road near the incident side was running north, south and west. The road where the incident took place ran to the west. This incident occurred at a distance of 1-2 steps from the door of Dr. Sharma's shop. The accused who fired were in front of Dr. Sharma's shop at about 1.5-2 steps away. The attackers had surrounded Suresh from all sides. When Suresh was fired upon, he tried to flinch but Hasan and Tahir caught and pushed him on the ground. He could not remember that he had stated that fact to the I.O. or not. Initially only one shot was fired at the deceased before he tried to escape. He could not tell whether that fire hit the deceased. He got rest of the firearm injuries when he fell on the ground. That fire hit the deceased but on which part of the body, he could not say. The incident was completed within 2-2.5 minutes. He did not see any person attacking by knife when Suresh was standing but saw causing the injuries by knife when Suresh fell on the ground on the back side. The deceased was picked up and put in the rikshaw in the same condition. He himself did not go with the rikshaw. Ramesh was sitting on the rikshaw with Suresh and there was no one 4 All. Tahir & Ors. Vs. State of U.P. 1471 else. After the incident he did not have any conversation with Narendra and Om Prakash. He left the spot immediately. It was asserted that he stayed there for an hour or an hour and a half. The police did not come in front of him at the scene of the incident. He told the I.O. about the lights being switched off at the shop on the spot, though it was not found to be written in his statement under Section 161 CrPC. Further he replied that he could not tell how long ago the sun had set before the incident. But it was not the night and the lights were still on, light of Dr. Sharma's shop and others shops were on. It would be wrong to say that the lights were not on at the time of the incident. Suresh belonged to his fraternity but not of his family. It was wrong to say that Suresh used to run VCR illegally, sell liquor illegally and several cases against him were lodged by the police. PW-3 denied the suggestions of the defence. 32. PW-4, Sevak Ram Rathore is the witness of recovery of razor and knife from the accused Nazim and Nazuk though he had affirmed the recoveries on the pointing of both the accused persons but had denied that the recovery memos were prepared on the spot. He stated that recovery memos were prepared in the police station. Therefore, the witness had been declared hostile and was cross-examined by the prosecution. 33. PW-5, Dharampal had proved the recovery memo Ex.A-2 and Ex.A-3 regarding recovery of knives from Nazuk and Nazim. Since the appellants have been acquitted under the charges of Section 25 Arms Act and the State has not preferred any appeal against the judgment and order of the acquittal and this witness is only the witness of recovery his testimony is not relevent for our purposes. 34. PW-6, Dr. G.D. Katiyar who did autopsy of the deceased, found 22 injuries on the body of the deceased out of which injury nos.16 and 18 were firearm injury. Injuries nos.17 and 21 were abrasions. Rest 17 injuries were incised wounds on the vital and non-vital part of the deceased which were sufficient to cause death. 35. In the internal examination, this witness found that the brain was congested and there was 200 ml blood in the chest cavity. The membranes of the lungs were cut on both sides. There was 100 ml black coloured substance in the stomoch. The large intestine was perforated at many places on the left side. The left side of the liver was cut. A metalic bullet was found in ingulin region. A metalic bullet was also found on the right side of the abdomen, chest below the rib cage. 36. The witness opined that the injuries on the body of the deceased could occur at 7 p.m. on 21.09.2001. The injuries no.1 to 6, 8 to 15, 19 and 20 could come from the sharp-eged weapon like knives and razors. Injury nos.10 and 18 were possible from any firearm. Inury nos.7, 17, 21 and 22 could come from rubbing against the rough and hard surface. During the cross-examination, the witness deposed that in the month of September, rigor mortis (stiffness) after death may start from the upper part of the body and pass in 24 to 48 hours. The rigor mortis normally first passes through the upper part and then the lower part. He could not say whether the dark coloured liquid found in the stomoch of the deceased could be liquor. He had not mentioned the edge of the wounds. He did not mention the condition of tailing about any cut wound. If wounds were caused by hitting with knives or razor, tailing occur in the injuries. The spare etc which was 1472 INDIAN LAW REPORTS ALLAHABAD SERIES inserted into the body and taken out did not have tailing. The witness accepted that he did not mention the word 'firearm' about injury nos.16 and 18 but had mentioned the word 'wound of entry'. He did not give the direction of the wounds or stabbed wounds. At the time of deposition the bullets were not before the witness. He further deposed that no death report of the hospital was produced before him. There was the possibility of a gap of 4-6 hours in the period of death. The post mortem was done in the artificial light. 37. PW-7, was the H.C.M. deposed that on 24.09.2001 he had lodged F.I.R. in Case Crime No.1209 of 2001, under Sections 147, 148, 149, 302 IPC and Section 3(2)(V) SC/ST Act and disclosed in rapat no.3 at 20:25 p.m. on the same day in the original G.D. The witness had brought the original G.D. In the process of its prepearation a carbon copy was also prepared which was the available on the file. It was in his hand writing and signature. The chik F.I.R. paper no.3/1 and carbon copy of GD are exhibited as Ex.Ka4 and Ex.Ka-5, respectively. He further deposed that on 26.09.2001, accused Pappu @ Kamina alongwith a truss and specimen seal was produced by the SHO Nawab Singh, it was entered in the GD. Its carbon copy was prepared in the same process which was correct as per the original. The witness proved it. It was exhibited as Ex.Ka-6. 38. On 26.09.2001 S.I, N.K. Sharma produced three properties, in three trusses which were entered at rapat no.46 at 21:18 hour and about which case at Crime No.1209 of 2001, under Sections 147, 148, 149, 302 and Section 3(2)(V) SC/ST Act was lodged. Two specimen seals were also produced. A carbon copy was prepared alongwith original GD in his hand writing and signature which he proved and had been exhibited as Ex.Ka-8. On 01.10.2001 at rapat no.12 at 08.00 p.m. accused Hasan in Case Crime No.1209 of 2001 was produced by the SHO Nawab Singh about which original GD and carbon copy in the same order was prepared by him. The witness proved the carbon copy GD as Ex.Ka-9. 39. In cross-examination, the witness admitted that no seizure or arrest memo was made in front of him. On 24.09.2001 after 09:25 p.m. no cognizable offence was lodged in the police station Kila. Only a case under the M.V. Act had been registered. The witness denied that he made the entries anti-timed. 40. PW-8, Nawab Singh, I.O.